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December 12, 2000
Supervisor Lou Calcagno, Chair
Monterey County Board of Supervisors
County Courthouse
240 Church Street
Salinas, CA 93901
RE: South County Parcelization and Development
Issues
Dear Chairperson Calcagno and Board Members:
This letter is to expand slightly and to put
into writing (and thus, I hope, to make easier to
follow) the comments I made at your meeting today.
I want to provide a specific reference to some
things you can do, in a positive way, to deal with
the parcelization and development issues that were
so effectively dramatized at the Board meeting.
I think the parcelization and development issues
in South County are very serious, with respect to
the long-term future of the county. The Chair's
comparison of South County to Yosemite is not far
from the mark. There is spectacular country there,
and absent a change in the existing policies and
current administrative approaches, the ranching,
wildlife, and scenic resources of the area are
likely to be progressively undermined and
diminished, and ultimately lost. Here are the
points I hope your Board will consider, and the
actions I hope you will take:
- The Williamson Act, however beneficial, is
not, to my mind, the place you should put your
main focus. You should not be relying on the
Williamson Act to set land use policy for you.
After all, every Williamson Act contractor can,
if he or she desires, simply withdraw from the
contract on a unilateral basis, which means that
ten years later the restrictions of the
Williamson Act will not be a factor in governing
land use. That makes the Williamson Act
relatively ineffective as the basis for setting
long term land use policy. This said, it is
obviously very important actually to enforce the
provisions of the Williamson Act, and provisions
of Williamson Act contracts, as the Farm Bureau
has urged you to do. We definitely concur with
the Farm Bureau on that.
- ß I am not fully informed on the
details of the so-called "Exxon" lot line
adjustment, as apparently approved by county
staff in 1999. This is the matter that will be
back before your Board in January, as I
understand it. From what I know, the approval of
this lot line adjustment was arguably
inconsistent with Government Code Section 51257,
at the time the lot line adjustment was made.
The lot line adjustment also apparently created
parcels that violate the 160-acre minimum
requirement of the current General Plan and
Zoning Code. While your inclination, I am sure,
will be to "back up" the county staff that gave
the approval, I urge a different, three-step
approach. First, I hope you will find out from
County Counsel whether the action by county
staff did comply with your current understanding
of what the land demands, and what the Zoning
Ordinance and General Plan require. If County
Counsel tells you that the approval of the lot
line adjustment in 1999 was not, in fact,
consistent with what you now hold to be the
applicable law and regulations, then I urge you
to inquire, as a second step, if the County can
legally reverse the inappropriate staff decision
at this time&emdash;again, this is a legal
question for County Counsel. Finally, if the
staff decision was erroneous, and the County is
legally able to reverse that erroneous decision
at this time, then I urge you to do so. While
the landowner has of course "relied" on the 1999
approval, the public's reliance ought to come
first in your mind. The public relies on the
County, which is supposed to represent its
interests first and foremost, actually to follow
its own policies and state law. If the county
staff didn't do that, and the decision can be
"undone," then I hope the Board will take that
step.
- I believe that the point made at your Board
meeting is legally correct, and is correct as a
matter of policy&emdash;no residential unit
should be approved on any parcel in the
Permanent Grazing (PG) zone district unless the
applicant for a permit to build the residence
can demonstrate that the residence would be
accessory to a genuine agricultural use. The
burden of proof should be on the applicant to
demonstrate this. It might well be appropriate
for the Board to adopt specific guidelines as to
how such a legally sufficient accessory use
could be proved, and a specific procedure for
such permit requests. Normally, a residential
building permit is handled as a "ministerial"
permit, but because of the zoning code
requirements, judgment must actually be
exercised, to insure that the code is being
complied with. As I and others stated at the
meeting, your planning staff needs to know
immediately that no such permits should be
issued on PG properties, unless and until an
adequate showing is made that the residential
structure will truly be accessory to a genuine
agricultural use.
- As was made clear at your meeting, PG
parcels are being marketed without reference to
the code requirement that no residence can be
constructed on such parcel unless that residence
is "accessory" to a bona fide agricultural use.
The only way to avoid problems for the
purchasers of such lots is to find a way
effectively to place a notice of this legal
requirement on the titles of all PG zoned
properties. I do not think current state law
allows the Board directly to put a notice of
zoning restrictions into the chain of title of
each PG zoned property&emdash;but you could have
County Counsel check that to be sure. You could
also seek state legislation to allow you to
accomplish that. Finally, (and this was my
suggestion from this morning) you could ask
County Counsel to file a suit for Declaratory
Judgment as to the meaning of the zoning
restrictions, naming and providing notice to all
persons holding PG zoned properties. Once a
judgment is obtained, establishing that the
zoning regulation is in fact a binding
restriction on constructing a residential unit
on PG properties, you could record it against
the titles of all PG properties, and provide
actual notice. That would probably undermine
marketing schemes like those discussed at your
meeting this morning. If this step seems
unusual, perhaps it is that; however, I urge you
to take effective action to prevent the
continued development of agricultural parcels in
South County for what are essentially suburban
"ranchette" developments. That kind of
development absolutely violates your current
zoning code, and everyone should know that, and
act accordingly.
- One of the most significant long-term
problems in South County is how to eliminate (to
the greatest degree possible), or to prevent the
development of, preexisting nonconforming
parcels, sometimes called "paper subdivisions."
Current state law gives the owners of such
parcels certain development rights, but these
rights are not for the most part
constitutionally based, but based on statute. I
hope the Board will urge Senator McPherson, and
Assembly Members Keeley and Salinas, to seek to
rectify this situation with appropriate state
legislation. In addition, the Packard Foundation
is reportedly funding a special look at this
problem, with work being undertaken by Jonathan
Wittwer, the former Assistant County Counsel of
Santa Cruz County, and a person extremely
knowledgeable in this area of the law. I urge
your Board to have your County Counsel contact
Mr. Wittwer, and to work with him and others
interested in this issue, to build as strong an
approach as is possible. There may well be some
things the County can do, if it's willing to
take a proactive role, to make such "paper
subdivision" parcels unbuildable. The police
powers of the County, for instance, could
prevent any development or construction on
parcels where access is not adequate, or where
other reasonable conditions are not met. Absent
a positive program by the County, individual lot
owners will proceed to build, and the long-term
integrity of South County will be undermined. I
hope the Board will direct County Counsel to
help the Board develop an effective program to
achieve its policy objectives, faced with the
"paper subdivision" problem.
- Finally, as I indicated at your meeting,
strengthening the land use policies for South
County should be a major effort as part of the
General Plan Update. Naturally, LandWatch will
seek to present positive alternatives for your
consideration.
Thank you for taking these views into
account&emdash;and thank you for taking a proactive
approach to the land use policy challenges that can
undermine the long-term economic and environmental
health of South County, absent a vigorous effort by
the County Board of Supervisors to forestall that
result.
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Each Board Member
County Administrative Officer
County Counsel
Anthony Lombardo
Common Ground Monterey County
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