Court Upholds Use Of Deed Restrictions As An Enforceable Method of Protecting Mitigation Lands

Sierra Club v. County of San Benito (2017 Cal. App. LEXIS 1987)

In Sierra Club v. County of San Benito, a California court upheld the county’s use of a deed restriction, rather than insisting upon a conservation easement, as a mechanism to ensure the protection of mitigation lands. The solar project at issue proposed to devote approximately 2,500 in the Panoche Valley acres to power generation, and to set aside thousands more acres for preservation to mitigate the impacts of the project.

Early versions of the EIR held a mitigation measure that required the creation of conservation easements, held in perpetuity by qualified land trusts, to preserve habitat. In the final EIR, however, the county expanded this measure to allow third parties to protect mitigation lands using a “deed restriction,” a mechanism allowing a landowner to record limitations on the use of its property that remains binding on future owners. The Sierra Club challenged the use of a deed restriction, arguing that it was unenforceable and not permitted by CEQA.

The county responded that California law did not prohibit the use of deed restrictions as a mechanism for permanently protecting mitigation land, nor did anything mandate the use of conservation easements. The county noted, moreover, that deed restrictions were entirely consistent with Government Code section 65967, which sets rules for ensuring the protection of mitigation lands. The court agreed with the county that deed restrictions were available and enforceable, and rejected the Sierra Club’s position.

Although unpublished, the decision lends comfort to local agencies and project proponents desiring flexibility when selecting the means of preserving land, and reaffirms that deed restrictions are an available mechanism under CEQA.

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