Lucky for those of us who want room to roam, California law recognizes the importance and value of open-space land. In fact, all local governments have to designate land within their boundaries as open space. If you (or your client) care about preserving open-space land, you need to understand the processes local governmental entities use to establish open-space land and get involved!
Open-space land in California can be “created” by designating it as such through the general plan adoption or amendment process. Every local jurisdiction in California has to adopt a comprehensive, long-term general plan to address use of the land within its boundaries and land immediately outside its boundaries. Govt C §§65300, 65350.
Once the local government has designated land for open-space use and adopted an open-space zoning ordinance, there are several ways to restrict the land to such use:
- Zoning. The land can simply remain zoned for open space. Once zoned as open space, only a change in the zoning of the land would threaten use of the land for something other than open space in the future. Although such changes aren’t easily granted, this protection could become subject to landowner applications for rezoning and the political will of local elected officials.
- Easement. Once the open-space element of its general plan is adopted, a local agency may also restrict land within its jurisdiction to open-space use by entering into an open-space easement. Govt C §51080. However, before it can accept or approve the grant of an easement, it must pass a resolution with required findings that the proposed easement is consistent with the county’s or city’s general plan and that the preservation of the land as open space is in the best interest of the county or city. Govt C §51084(a)-(b).
- Fee title. A method of ensuring that land is permanently used for open-space purposes is for a government entity to acquire fee title to the land. Fee title to open-space land can be obtained through purchase, gift, grant, or testamentary transfer. Govt C §6950.
- Conservation law. Land that is subject to The Land Conservation Act of 1965 (Govt C §§51200-51297.4), commonly known as the Williamson Act, can be restricted to open-space use in two ways: (1) local agencies can adopt or amend the rules governing agricultural preserves to include use of the land as open-space land; or (2) local agencies can enter into contracts specifically designating land for use as open space, provided that certain requirements are met.
As the population of California increases, so does the need for preserving open-space land. California’s legislature clearly values open-space land. It’s up to Californians to decide what land should be kept open and push their local governments to protect it.
For a comprehensive look at California’s open-space land laws, check out the featured article in the July 2012 issue of the CEB’s Real Property Law Reporter. CEB also covers this issue in California Land Use Practice, chap 2. Conservation easements are covered in California Easements and Boundaries: Law and Litigation, chap 6.
And don’t miss CEB’s upcoming program Current Issues in Land Use Regulation and Development in LA on Sept. 14th and SF on Sept. 21st.
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