OFFICE OF THE
Ms. Maria J. Cipriani Dear Ms. Cipriani: This will respond to your January 30 letter in which you asked a series of questions related to the acquisition of public recreation trails by the District. During subsequent meetings and conversations, we have modified both the content and the form of the questions so that I can better give you the advice that you are seeking. Your questions and my responses follow: 1. Is an Expenditure Plan consistency finding necessary for the donation of an irrevocable trail offer which could potentially result in public access on land subject to a conservation easement? No. The Sonoma County Open Space Authority's Expenditure Plan only applies to the purchase of open space interests by the District with revenue from the Authority's sales tax. Because the offer is made as a donation to a city or the County, there would be no expenditure of sales tax revenue, and thus the Expenditure Plan would not apply. (1) If a fee owner of property intends to both sell a conservation easement to the District and contemporaneously make an irrevocable offer of dedication of a trail easement to a city or to the County, I would recommend that the District assure that the conservation easement is recorded first and that it specify that prior to the acceptance of the trail easement and its opening for public use, the city or the County will submit a plan to the General Manager for a determination of consistency with the conservation purposes of the conservation easement. In addition, the District's appraiser should be instructed to take the offer into account in reaching an opinion on the value of the conservation easement. 2. Under what circumstances would the recordation of an irrevocable offer of a trail easement affect an Expenditure Plan consistency determination? If the offer were made prior to or contemporaneously with the purchase by the District of a conservation easement or a fee interest, the potential public use of the trail might be relevant to an Expenditure Plan consistency determination. For example, if the District were purchasing a conservation easement for the purpose of preserving the use of the property as a dairy ranch, the potential future acceptance of the offer and the opening of the trail for public use might conflict with the dairy operation. The Authority would have to take into account the extent of the potential conflict in determining Expenditure Plan consistency. 3. Does the Expenditure Plan authorize the District to acquire a trail either by an easement or a transfer of a fee interest? The answer to this question depends on how the Authority's Board of Directors interprets the Expenditure Plan. (2) Following the Authority's formation by the Board of Supervisors, the Authority's Board of Directors determined to place a sales tax measure on the November 1990 ballot. As a prerequisite to taking that action, the Board of Directors adopted an expenditure plan for the spending of the tax revenue. (3) The opening paragraph of the Expenditure Plan provides that:
One reading of this language is that the purchase of a fee interest for public recreation would be an alternative to the purchase of a conservation easement but only if the conservation values sought to be protected would not be eroded by the public recreational use. In other words, the primary purpose of the expenditure would be to protect certain agricultural or open space values and only compatible recreation uses would be allowed and then only as a secondary and subordinate purpose. Under this reading, the purchase of the fee interest of a narrow strip of land for a trail would not seem to result in the "preservation of agricultural land use and open space." (5) Thus the question would have to be answered in the negative if only a narrow strip of !and were to be acquired in fee. Likewise the acquisition of a trail easement over a narrow strip of land would not appear to meet either the Expenditure Plan's primary goal of "preserving agricultural land and open space" or the subordinate authority to acquire "fee interests for public recreation." An arguably different reading of the Expenditure Plan results from using the Legislature's definition of open space. The Expenditure Plan seeks to implement the Open Space Element of the 1989 Sonoma County General Plan which in turn is mandated by and must meet the requirements of the Planning and Zoning Law, specifically Government Code § 65560(a)(3) which, in part, defines "[o]pen-space land" as
Using this definition, the Expenditure Plan would allow the purchase of a trail. (7) Such a purchase would, of course, have to be for a trail designated in Sonoma County General Plan. However, there is nothing in either the Open Space Element or the Board of Supervisors' resolution creating the Authority that requires that the Expenditure Plan cover the broadest definition of "open space" or the entire spectrum of the Open Space Element. Section 6.0 of the Open Space Element directed the Board of Supervisors to "[c]onsider a ballot measure to establish an Open Space District to acquire and administer open space lands." Acquisitions were to be for "partial or in-fee interests in lands, including purchases of development rights on a voluntary basis, in designated open space areas." (8) All of this turns on the definition of the phrases "agricultural land" and "open space" as they are used in the Expenditure Plan. In any event, and under well established rules of statutory construction, this kind of interpretation of the Expenditure Plan is for Authority's Board of Directors. (9) In its interpretation of the Expenditure Plan, it would be appropriate for the Authority's Board of Directors to consider the deliberations of the advisory committee that recommended the 1990 ballot measures to the Board of Supervisors, the sample ballot materials that were sent to each voter and the District's Acquisition Plan. (10) 4. Does an irrevocable offer of dedication of a trail easement require a general plan consistency determination at the time the offer is made? (11) No. The giving of consent under Government Code § 7050 is not the acquisition of real property. Government Code § 65402(a) provides in part that "no real property shall be acquired by dedication for... public purposes" unless the acquisition has been "submitted to and reported upon by the planning agency as to conformity with said adopted general plan or part thereof" (emphasis added). Additionally, § 65402(c) would require that the "purpose and extent" of the acquisition be determined to be consistent with the applicable general plan. The acquisition of a trail does not occur when a city or county consents to the offer. For purposes of § 65402, the acquisition would occur when the public agency accepts the offer. The giving of consent under Government Code § 7050 does not result in the acquisition of real property but rather creates an option. An option to acquire real property is not real property but rather a contract right. Miller & Starr, California Real Estate 2d, § 2:39. The answer might be different if the District were affirmatively pursuing a plan for trail acquisition by combining the solicitation of irrevocable offers for the County or one or more of the County's cities with the purchase of conservation easements. Under those circumstances, a successful solicitation might arguably be an acquisition under § 65402 because of the expenditure of public funds and the probability that the offers would be accepted in the foreseeable future. Where the plan followed by the District differed from the Sonoma County General Plan, a general plan amendment might be necessary before a consistency determination could be made. 5. Does the making of an irrevocable offer of dedication of a trail easement constitute a project requiring compliance with the California Environmental Quality Act? We have agreed that the response to this question will be deferred to a later date to give me more time for research.
JPB:dlb (1) Under Government Code § 7050, a person can make and record an irrevocable offer of an interest in real property "for any public purpose" with the prior consent of the city or county in which the property is located. At any time thereafter, the offeree city or county can accept the offer and take possession of the offered interest. .(2) Your question is premised on the District's purchase of the trail with sales tax revenue. The District could, of course, acquire a trail by using any other revenue or by accepting a gift. Public Resources Code §§ 5540 and 5541. (3) Revenue & Taxation Code § 7285.5(a) and (c) which require that the ordinance imposing the tax be approved by the voters and that the ordinance include "an expenditure plan describing the specific projects for which the revenues from the tax may be expended," Although § 7285.5 does not expressly prohibit an expenditure of the revenue from the tax that is inconsistent with the expenditure plan, that prohibition is clearly implied from the requirement that the voters approve the expenditure plan as part of the approval of the tax. (4) Prior to the Authority's adoption of the Expenditure Plan, it requested and received advice on the question of whether the Plan would allow the purchase of fee interests for other than public recreation purposes. That advice is contained in a letter from the County Counsel dated August 10, 1990, a copy of which is enclosed. (5) However if a parcel of sufficient size and having agricultural or open space values recognized by the Expenditure Plan were acquired in fee, it might then be possible use a portion of it for a trail without it being inconsistent with the Expenditure Plan. Accordingly, such a purchase could be found to be consistent with the Expenditure Plan. (6) The inclusion of trails in the definition of "open space lands" in Government Code § 65560 is strengthened by the California Recreational Trails Act. A part of the Act, Public Resources Code § 5076 requires that the open space element of every city and county general plan shall consider "demands for trail-oriented recreational use" when developing specific open space programs. The County's General Plan meets these requirements. See generally §§ 4.0, 4.1 and 6.0 of the Open Space Element, specifically Open Space Program 5 "Acquisition of Lands for Trails" and Policy OS-7d which together with Figure OS-4a constitute the County's designated plan for trails. My reading of the Open Space Element is that the acquisition of trails was delegated to the County's Regional Parks Department by Open Space Program 5. Although the County. was obligated by the California Recreational Trails Act to "consider" trails, it is not obligated to spend County funds to acquire trails. Section 4 of the Act contains a disclaimer of state mandated costs that is premised on the Act not mandating local government expenditures. (7) Other state legislation on open space is not particularly helpful. For instance, the Williamson Act (Government Code §§ 51200 et seq.) implements California's policy of preserving agriculture and open space by authorizing property tax reductions to qualifying property owners who agree to limit the use of their land (Cal.Const. art. XIII, § 8 authorizing the Legislature to define open space and agriculturally productive land for tax purposes). Thus Government Code § 51201(b) defines "[a]gricuitural use" to mean the "use of land for the purpose of producing an agricultural commodity for commercial purposes." And Government Code § 51201(o) defines "[o]pen-space use" as the "use or maintenance of land in a manner that preserves its natural characteristics, beauty or openness for the benefit and enjoyment of the public, to provide essential habitat for wildlife, or for the solar evaporation of sea water in the course of salt production for commercial purposes ... . " (8) Paragraph 3(a) of Sonoma County Board of Supervisors' resolution no. 90-1521 dated August 7, 1990. (9) The final determination of the meaning of the Expenditure Plan ultimately rests with the courts. Nonetheless, under the rule of contemporaneous construction, the interpretation given the Expenditure Plan by the Authority's Board of Directors will be given great weight by a court. Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93; Mooney v. Pickett (1971) 4 Cal3d 669.681. See Sutherland Stat Const §§ 49.03 et seq. (4th Ed). (10) The Expenditure Plan required the Authority and the District to enter into a contract whereby the Authority would finance the District's operations. The contract requires the District to adopt an acquisition program. This program (the "Acquisition Plan") was adopted in 1992 and revised in 1994. The Acquisition Plan appears to be silent on the issue of trails. It defines open space to include "outdoor recreation" (p, 4) and restates the Expenditure Plan's authority for recreation purchases (p. 7) but does not mention trails. (11) Because the answer to this question is in the negative. it is unnecessary to answer the question of whether trails not depicted on Figure OS-4a of the Open Space Element of the 1989 Sonoma County General Plan would nevertheless be consistent with the Plan. In any event, such questions of consistency are usually not legal questions but are rather matters to be determined by the planning commission having jurisdiction. See Government Code § 65402.
OFFICE OF
THE
Ms. Maria J. Cipriani Dear Ms. Cipriani: This will supplement my letter to you of May 19 and respond to the following question:
Barring unusual circumstances, the giving of consent under Government Code § 7050 does not constitute the approval of a project and therefore does not require compliance with CEQA.(1) Public Resources Code § 21080(a) provides in part that "[CEQA] shall apply to discretionary projects. . . approved by public agencies . . . ." Thus, the initial inquiry in determining CEQA's applicability to an activity is whether the County proposes to "approve" a "project." A "project," as defined by Guidelines § 15378(a) is "the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately . . . ." Guidelines § 15372(a) defines "approval" to mean ". . . the decision by a public agency which commits the agency to a definite course of action in regard to a project to be carried out by any person." Thus, consent to an irrevocable offer of a trail easement hinges upon whether it would "commit the [city or county] to a definite course of action" "which has the potential for resulting in a physical change in the environment." Guidelines § 15378 and related cases make clear that a "project" is usually composed of a series of steps and that even a preliminary step may trigger CEQA. (2) The first step may seem harmless environmentally, but it may actually open the door to activities that cause a substantial environmental impact. One might argue that the consent to receive an irrevocable offer is the initial step leading toward future public use of a trail and thus a CEQA review would be required. There are two cases construing the meaning of "approval" and "project," however, which lead to the conclusion that the consent to receive an irrevocable trail easement offer does not constitute the "approval" of a "project" under CEQA. In Stand Tall On Principles v. Shasta Union High Sch. Dist., 235 Cal.App.3d 772, 777 (1991), a school board appointed a site-selection committee to survey potential locations for a new high school. The school board accepted the committee's recommendation of a preferred site and authorized an offer to purchase the property. (Id. at 776.) The school board's resolutions stated that the offer could not be made until an EIR for the project had been completed. (Id.) The court held that the school board's decisions did not constitute an "approval" under CEQA because they did not commit the school district to a definite course of action. (Id.) The court held that requiring an EIR for all potential school sites encompassed in a site selection process would "prove too cumbersome and yield little of value given its lack of focus." (Id. at 782.) In coming to that conclusion the court applied the balancing test described in Mount Sutro Defense Committee v. Regents of University of California, 77 Cal.App.3d 20, 39 (1978) and Guidelines § 15004(b) which weighs preparing an environment review as early as is feasible in the planning process in order to enable environmental considerations to influence project design against the equally compelling practical demand that the environmental review be completed late enough in the decision making process to provide meaningful information for the decision maker. The decision in Stand Tall supports the conclusion that the consent under § 7050 would not constitute "approval" under CEQA. The point at which the consent is given would be too early in the trail acquisition planning process to provide meaningful information. Just as the school district in Stand Tall was required to prepare an EIR prior to offering to buy the school property, an appropriate environmental document would have to be prepared prior to the acceptance of the irrevocable offer of dedication. In Kaufman & Broad South-Bay, Inc. v. Morgan Hill Unified Sch. Dist., 9 Cal.App.4th 464, 475 (1992), the court held that a school district's resolution to raise funds for the future acquisition of school sites and portable classrooms was not a "project" because "it was not an essential step culminating in action which may affect the environment." After contrasting a funding district formed to fund a specific project, which would trigger the need for CEQA review, with the school district's action, which did not dictate how funds would be spent or limit its options, the court held that an environmental review at such a juncture would be meaningless because there was "simply not enough specific information about the various courses of action available to the district .... "(Id. at 476.) The holding in Kaufman was codified in 1994 in Guidelines § 15378(b)(5), which provides that the definition of "project" does not include "[t]he creation of government funding mechanisms or other government fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment."
JPB:bkm (1) Under Government Code § 7050 a person can make and record an irrevocable offer of an interest in real property "for any public purpose" with the prior consent of the city or county in which the property is located. At any time thereafter the offeree city or county can accept the offer and take possession of the offered interest. (2) People ex rel. Younger v. Local Agency Formation Com., 81 Cal.App.3d 464 (1978); Bozung v. Local Agency Formation Com., 13 Cal.3d 263 (1975); Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247 (1972). |
