By William W. Abbott
The California Attorney General was recently asked whether or not the grant of a conservation easement on a portion of a parcel constituted a “division” for purposes of the Subdivision Map Act. (Government Code, §§ 66410 et seq.) The AG concluded, as many surveyors, local officials and land use attorneys had already determined, that such a conveyance was in fact, not a subdivision. (California Attorney General Opinion 06-801, August 14, 2007.)
The hypothetical in question involves the granting of a conservation easement on a portion of a parcel. The easement is conveyed to a non-profit corporation. The owner retains the underlying fee, and has the right to use the property in a manner not otherwise in conflict with the terms of the easement. The owner in turn has the right to sell mitigation credits. Such practice is consistent with USFWS directives. (68 Fed.Reg. 24753; Guidance for the Establishment, Use and Operation of Conservation Banks, United States Department of the Interior, Fish and Wildlife Service (May 2, 2003), pp. 9-10, 17.)
California Civil Code sections 815-816 define the method and content by which conservation easements are created and recorded. Generally speaking, the restriction may be drafted in one of several forms (limitation via deed, will, easement, restriction, covenant or condition). It is perpetual in duration, must set forth the specific limitations, and must be recorded in the Office of the County Recorder.
Reviewing the nature of the potential easement, the Attorney General concluded that the conveyance would not have characteristics of exclusive occupancy, a critical aspect when determining whether or not a division had occurred. The easement was distinguishable from actions which create separate interests for purposes of sale, lease or financing.
The Attorney General also concluded that the proposed conveyance was distinguishable from, and not limited by, the code sections pertaining to environmental subdivisions. (Government Code, §66418.2 .) This latter form of subdivision was an actual method of land division, whereas the conservation easement was never an division to begin with.
When preparing opinions such as this one, the Attorney General solicits input from interested parties. Apparently, one commenting party suggested that the fact that the grantor was going to sell mitigation credits resulted in morphing the easement into a regulated land division. In response to this issue, the AG said “…we reject the suggestion that the corporation’s receipt of mitigation credits in exchange for granting the conservation easement, or the subsequent sale and use of such credits, would constitute a ‘subdivision’…”
Readers interested in exclusive occupancy and easements may also want to review our article entitled “Easements, Exclusive Occupancy and the Subdivision Map Act.”
Bill Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.