Committee for Green Foothills’ suggested changes to provisions allowing exchanges from Williamson Act Contracts to Open Space Easement (OSE) Agreements
January 18, 2006
1. Because the law requires the OSE Agreements to be no less protective than the Williamson Act, we prefer that no Williamson Act restrictions, including prohibitions on development without agricultural use, be removed during the first 9 years after the exchange. Adding tighter restrictions to an OSE is permissible under the law, but subtracting the agricultural use requirement that would otherwise be in place, even for a 9-year transition period, raises concerns that the process becomes a means for escaping Williamson requirements. Keeping all restrictions does not eliminate the value of the Williamson Act exchange to an OSE. The landholder, in contrast to non-renewal, would secure the OSE tax advantages during the time period when the Williamson Act tax advantages would rapidly disappear. This fulfills the state legislature’s purpose in allowing exchanges between the two land use arrangements.
2. Short of the conservative approach described above, the County must show that it is getting some meaningful new development restriction not present under the Williamson Act if it is giving up a restriction that is present in the Williamson Act.
A. The “no development” OSE and “less than 1000 square feet” could be reasonably found to have met this test.
B. The “5% maximum” (presumably excluding subsurface and roads) may not.
C. If the property applying for exchange to the “5% maximum” OSE is too small to be subdivided, we suggest an additional planning step. The county hires a qualified assessor-consultant at the applicant’s expense to determine the assessor’s estimate of the likely value of the land with and without the OSE. The County will use the information to help determine whether the OSE represents a meaningful new restriction on development. A fee would be charged for this process. This process would not be necessary for land entering into an OSE that is new, as opposed to being exchanged from the Williamson Act.
While County staff suggest that development restrictions alone may be meaningful, the County Supervisors need some method for assessing that issue. If the County Supervisors believe the land value assessment can help them conduct a reasoned analysis of what the County gets out of the exchange to the OSE, they should consider including this step.