February 9, 2024
Dear Ms. McKenna,
Thank you for the opportunity to comment on Section 4: “Alternative agricultural mitigation proposals” of the draft Section III “Policy Implementation Guidelines for Agricultural Mitigation.” The current language is overly broad and creates an opening for conversion of agricultural lands without mitigation. Additionally, as currently drafted, adoption of Section 4 would necessitate CEQA review, as it constitutes a new policy.
Recommendation
To remedy these issues, LandWatch recommends the following language:
Alternative agricultural mitigation proposals:
Agricultural mitigation shall occur for all Prime Farmland or Farmland of Statewide/Local Importance, or Unique Farmland, within the area being annexed. However, the Commission retains the independent discretion and duty to consider, on a case-by-case basis, requests for partial exceptions to mitigation requirements, where mitigation is shown to be economically infeasible and where consideration of the exception would be consistent with the California Environmental Quality Act, as determined by LAFCO.
Examples that may be considered for pro rata reductions to agricultural mitigation requirements on the basis of economic infeasibility include projects for deed-restricted affordable housing, inclusionary housing, and agricultural housing, but only to the extent that the projects demonstrate that such specified use is certain and guaranteed.
While exceptions to mitigation may be considered by the Commission for the specific uses cited above, the Commission’s intent remains for agricultural mitigation to be provided in a ratio as close as possible to the 1:1 overall goal, as identified in these Guidelines. The Commission retains the right to deny requests for exceptions where it deems that such exceptions would be inconsistent with its overall goal.
Discussion
- LAFCO should revise paragraph 1 of section 4 to clarify that local agencies cannot rely on arbitrary local policies to exempt projects from mitigation.
LandWatch recommends modification of the language in the first paragraph, which states: “the Commission retains the independent discretion to accept, on a case-by-case basis, an annexation – or portions thereof – that has a lesser or different agricultural mitigation for annexation purposes to the extent that such exceptions would be consistent with a project’s required mitigation measures under the California Environmental Quality Act, as determined by the CEQA lead agency (typically the applicant City).” As currently worded, the Commission would be leaving itself the option of ignoring its standard mitigation requirements any time that a city adopts some lesser agricultural mitigation and finds that it is “consistent with a project’s required mitigation measures under the California Environmental Quality Act.” This would allow the lead agency sweeping power to determine, based on any identified policy objective, that agricultural mitigation is not required for a given project because it is “infeasible.”
Citing California Native Plant Society v. The City of Santa Cruz, which purports to uphold an infeasiblity finding where it is based on policy grounds, the lead agency could determine that mitigation is not feasible solely based on whether it is “desirable” when balancing all relevant factors. LandWatch believes that CEQA does not permit this interpretation of an agency’s latitude to make infeasibility findings. However, by adopting the current draft of section 4, LAFCO would be opening the door for an agency to argue that CNPS allows it to find that mitigation is infeasible if it would inhibit an otherwise “desirable” project, with “desirable” being defined solely and subjectively by the lead agency.
LandWatch believes that agricultural mitigation exceptions should be granted only when an agency makes the determination that this mitigation is economically infeasible under CEQA case law governing findings of economic infeasibility. The agricultural mitigation exception should be limited to at most the pro rata percentage of lost agricultural land on which the economics of committed uses demonstrably cannot support that pro rata share of agricultural mitigation cost. For example, agricultural mitigation may not be economically feasible for tight margin projects such as deed-restricted affordable, inclusionary, and/or agricultural housing. LAFCO should not open the door to exceptions based on a lead agency’s ad hoc balancing of other non-economic factors.
The fact that LAFCO has discretion to accept or deny proposed exceptions does not eliminate the issue. LAFCO’s authority and duty to consider and mandate mitigation under the Cortese-Knox-Hertzberg Local Government Reorganization Act is statutorily independent of CEQA. Under the current draft, LAFCO’s independence would be confined within narrow bounds both by bureaucratic momentum to accept cities’ CEQA findings unquestioningly and by the expectation that LAFCO should subordinate its statutorily independent discretion to the lead agency’s policy-based determinations of infeasibility under CEQA. At minimum, the proposed language would create potential for arbitrary and inconsistent application of the exceptions.
To avoid this scenario, LandWatch recommends that LAFCO replace section 4 in its entirety with the proposed language included at the end of this comment letter. That proposed language clearly states that LAFCO retains both the authority and the duty to make its own determinations as to the sufficiency of agricultural mitigation, which is its duty under the CKH Act, and to determine the sufficiency of the City’s CEQA compliance and determinations, which is its duty as a responsible agency under CEQA. LAFCO should not be hostage to a lead agency’s indefensible determination that agricultural mitigation is infeasible.
- LAFCO should narrow the language of paragraph 2 to create objective certainty about qualifying exceptions.
The current language in this section is overly broad and creates uncertainty as to what exceptions qualify. As a result, it will encourage applicants to argue for a range of exceptions as a means of avoiding cumbersome and costly agricultural mitigation requirements. Specifically, the qualifier in the second sentence “but are not limited to” leaves open an unlimited number of possible exceptions. Additionally, where it states in the same sentence that the policy would extend to proposals “that provide certainty with respect to future uses,” it creates a condition that only requires certainty, whatever the use may be, rather than identifying certain specific uses that may warrant an exception. To clarify the range of specific project exceptions that might be warranted, and thereby reduce the number of viable requests for exemptions, LandWatch recommends that LAFCO replace section 4 in its entirety with the proposed language included at the end of this comment letter.
III. CEQA applies to Section 4 as currently drafted, because it is a new policy rather than an interpretation of existing policy.
Lastly, the Executive Officer’s report notes that adoption of the proposed guidelines “is exempt under the California Environmental Quality Act Guidelines, which provides that CEQA applies only to projects which have the potential for causing a significant effect on the environment.” It goes on to explain that “Adoption of agricultural mitigation guidelines which interpret and guide implementation of LAFCO’s previously-adopted Policy for Open-Space and Agricultural Lands for purposes of future annexation proposals is not a project under Guideline 15378 and is therefore exempt.” (emphasis added)
While this reasoning applies for proposed guidelines Sections 1, 2, and 3, the adoption of Section 4, as currently drafted and tentatively approved by the Commissioners, would not be exempt from CEQA review. The EO report contextualizes Section 4 as “the one area needing additional research by legal counsel following the December 4 meeting” and, more specifically, “whether it would be practical and legally defensible for LAFCO to make exceptions from agricultural mitigation requirements for specific types of land uses.” If LAFCO decides to adopt a policy that permits exceptions on any basis other than a CEQA determination that mitigation for a particular project is infeasible, LAFCO would be creating a new policy. Section 4 is not an interpretation of how to apply the existing policy, because exceptions did not previously exist under the 2010 policy. Loss of agricultural land is always considered a significant impact under CEQA. As such, if Section 4 is included in its current form, LAFCO must comply with CEQA requirements and prepare an EIR which considers the environmental impact of the new policy.
Thank you for the opportunity to comment.
Best regards,
Michael
Michael D. DeLapa
Executive Director
