Monday, September 18, 2006

Comments on LAFCo Agricultural Mitigation Policy

The Santa Clara County LAFCo is developing a policy on requiring preserving farmlands somewhere in Santa Clara County to mitigate for the loss of farmlands when cities expand. It's a good start, and CGF provided the comments below.


(We provided similar comments to San Jose for its policies, here.)


September 18, 2006

Ms. Neelima Palacherla
Santa Clara County LAFCo
70 West Hedding St, 11th Floor, East Wing
San Jose, CA 95110

Re: LAFCo Agricultural Mitigation Policy

Dear Ms. Palacherla;

The Committee for Green Foothills submits the following comments regarding the proposed LAFCo Agricultural Mitigation Policy:

· CEQA and good policy require the highest feasible level of agriculture preservation be achieved when annexation results in the loss of farmland. CEQA requires the imposition of feasible mitigation measures that substantially lessen adverse impacts. Public Resources Code sections 21081(a)(1); 21081(a)(3). While preserving farmland does partially mitigate for the loss, a 1:1 ratio clearly does not eliminate the significant impact, as the net effect is a 50% loss of farmland. Accordingly, LAFCo staff should review policies at other LAFCos and at the least, it should adopt the highest ratio of preserved-to-lost farmland currently in use.

· Even if LAFCo determines that preserving an amount of land equal to the amount of lost farmland is adequate, a 1:1 ratio is inadequate because it assumes the program will work perfectly. In the real world, mitigations are not perfect, programs and easements are often not followed or violated, or simply become infeasible. Wetland restoration mitigations frequently use 2:1 or 3:1 ratios or higher to account for the possibility of failure. A 20% addition to the preservation ratio (a 1.2:1 ratio) would provide some assurance that an equal amount of land will be preserved, and should form the lowest preservation ratio considered by LAFCo.

· LAFCo must retain as a feature of the ag mitigation policy that it has the legal ability to enforce the ag mitigation requirements. Staff’s proposal for conditional approval of an annexation, with mitigation preceding issuance of a Certificate of Completion, satisfies this requirement. Any alternative proposal that modifies this in a way that removes LAFCo enforcement ability will turn this whole process into a sham exercise. It is incumbent upon anyone proposing an alternative to show how staff can feasibly enforce mitigation requirements.

· Extending the conditional approval period to longer than two years may be an appropriate method to merge LAFCo enforcement ability with timelines that landowners may need to arrange mitigation. An expedited renewal process may also help resolve problems where landowners may not be able to meet deadlines. Tracking these projects over time will require additional LAFCo resources however, and fees should be imposed for purposes of cost recovery.

· Complaints that the staff proposal conflicts with long-term planning for city expansion are invalid. In the first place, annexations that provide space for land that the cities will not use for decades are already disallowed. Cities remain free to develop expansion plans that project decades in the future – however, any annexation proposal might have to be a subsidiary component of the city’s plan, and could only be considered when it is timely. This is the current policy, and the ag mitigation proposal is not a change in kind. If Coyote Valley landowners, as a hypothetical example, complained they could not arrange to buy easements when development of their property would not occur for decades, then they would simply be admitting that annexation of their properties should not be allowed at all. As a practical matter, annexation could occur with staff’s ag policy, with component parts being proposed for conditional approval, and a certificate received upon completion of the mitigation for each part. Extending the conditional approval period and expediting renewal of the period should address any remaining concerns.

· Mitigation stacking should be at least discouraged; some kinds of mitigation stacking should never be allowed and it could be appropriate to prohibit stacking entirely. Illusory mitigation, such as would occur by selling Transferable Development Rights on land already covered by conservation easements, should be prohibited. Similarly, stacking any subsequent mitigation easement on land already protected by an easement that achieves much the same goal is illusory and should be prohibited. Stacking easements for biological purposes and for agricultural preservation on the same property could result in conflicting mandates and should be discouraged or prohibited.

· All mitigation funding, including maintenance and enforcement, is the responsibility of the annexation applicants (cities and landowners). Applicants cannot pay less than their full share on the basis that they expect to apply for funding from agencies such as open space authorities. Agency funding to augment the ag mitigation project is a separate discretionary decision that does not reduce the obligations of those converting farmland to other uses.

· While LAFCo does not have authority over County actions that convert farmland to other uses without changing jurisdictional boundaries, it should encourage the County to adopt ag mitigation programs similar to the LAFCo proposal.

· There should be some maximum time limit between collection of in-lieu fees by a conservation entity and land acquisition, at least in cases where in-lieu fees are large enough to finance acquisition in short order.

· Land acquisition must occur within Santa Clara County.

· Acquisition programs should prefer, including giving a price preference, purchasing easements on farms not already physically developed in ways that constrain future types of farming. Permanent greenhouse structures (ones with paved floors) and mushroom-growing buildings are examples of problematic development if they are the dominant use on parcels being considered. Easements that prohibit hardscaping the property over a certain percentage level would be appropriate.

· The buffer concept needs further development. We suggest that buffers may also be farmed in some circumstances, but in ways that minimize potential conflicts with neighbors – maximizing production and profits would not be the first priority. Organic farming, growing hay, and limited working hours would be examples of buffer management that could be appropriate. Because the buffer could not emphasize agriculture and might have to switch to other uses entirely, it should not count as part of the land preserved for agriculture.

· Efforts to exclude lands from designation as “prime agriculture” should be opposed. Staff proposed policies #5 and #8 should not be weakened by efforts to use loopholes such as capping wells and claiming the lack of water means the land is not prime, or removing “prime” designation by landowners simply leaving land fallow for several years.

Staff’s LAFCo policies represent a strong step forward to protecting our County’s heritage. The shame is that this was not done in previous decades. The sprawl now found in the north County could have been a “Silicon Archipelago” of high tech development and housing surrounded by farmland. At least, we can avoid repeating mistaken sprawl in our remaining prime agricultural lands.

Please contact us if you have any questions.


Brian A. Schmidt
Legislative Advocate, Santa Clara County

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