April 26, 2013

Meet the new AB 823 – worse than the old one

By Anthony L. Francois Senior Attorney

California Assemlybill 823 (Eggman, D – Stockton) is the land grab bill that we have posted about here and here.  It has been scheduled twice for a committee hearing, and twice the author has cancelled the hearing.  This usually means that the author knows the bill will fail the committee vote absent an improved lobbying effort or amendments to get the necessary votes.  This week, Assemblymember Eggman amended AB 823, presumably in order to secure the necessary votes from her democratic colleagues on the left-leaning Assembly Natural Resources Committee.

One would also presume that amending the bill shows that it was too much even for a committee that includes the former vice- chair of the California Coastal Commission, a former member of the Integrated Waste Management Board, and former members of the Santa Barbara and Berkeley City Councils.  But it turns out the amendments actually make the bill a greater threat to property rights.

The bill now applies to projects that impact open space as well as agricultural land, and to a much broader range of projects.  The bill would require permitting agencies to make a subjective determination of whether a project is inconsistent or incompatible with, or substantially impairs an existing agricultural or open space land use.

Then the unconstitional conditions really start:  where the prior version of AB 823 required the donation of a conservation easement on existing farmland, the amended version requires that previously unfarmed land be converted to farming, and then a conservation easement over that land be donated to the city.  Or one could always pay the astronomical cost of such an acquisition to the city in the alternative.  Funny thing about that alternative, though, the bill still allows the city permit staff to require you to surrender the conservation easement and money as a ransom to get your project approved.

So perhaps the author could not get the votes previously, because the earlier version of the bill was too lenient on property owners?

Update: Pacific Legal Foundation submitted this letter today providing the California legislature with our analysis of the amendments to AB 823.

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