LandWatch Urges Denial of Proposed D'Arrigo Project

February 18, 2004

Juan Sanchez, Chair
Monterey County Planning Commission
Monterey County Planning and Building Inspection Department
2620 First Avenue
Marina, CA 93933

RE: Proposed D’Arrigo Brothers Agricultural Processing Facility (PLN020069)

Meeting Date: February 25, 2004

Dear Chairperson Sanchez and Members of the Planning Commission:
LandWatch Monterey County is once again writing to urge your Commission either to deny the proposed D’Arrigo Brothers agricultural processing facility and office building, or to take no action to approve the project until after the Commission has reviewed a full Environmental Impact Report (EIR).

LandWatch made this same request last December, and we were delighted that the Commission did not approve the proposed project at that time. We were sorry, however, that the County did not immediately proceed with the preparation of a full EIR. We know that the applicant is eager to bring its proposed project forward for a decision, but what was true in December remains true today. Prior to any approval of the project, the California Environmental Quality Act (CEQA) requires the preparation of a full EIR.

CEQA Issues
LandWatch has submitted an extensive letter on the most recent version of the Notice of Intent to Adopt a Mitigated Negative Declaration for the proposed D’Arrigo project. As that letter shows, the proposed project might cause a number significant environmental impacts. Under state law, when significant environmental impacts might be caused by a proposed project, neither the Commission nor the Board of Supervisors can “shortcut” the environmental review process mandated by CEQA. A full EIR must be prepared. The process involved in the preparation and review of a “Mitigated Negative Declaration” is in no way equivalent to the process involved in the preparation of a full Environmental Impact Report. The full EIR process requires the publication of a “Draft” EIR, the provision of a substantial period to allow the public to review and comment on that “Draft,” and then a required response by the County to each one of the comments made. The “Final” EIR must include the “Draft,” the comments received, and the responses to those comments.

The courts have been very clear that if a proposed project “may” have a significant impact on the environment, a full EIR must be prepared. State law is also clear that “substantial evidence” means “any” substantial evidence. The Revised Initial Study and Notice of Intention To Adopt A Mitigated Negative Declaration does not include an actual mitigated negative declaration, demonstrating that all of the identified impacts have been reduced to the point of insignificance, and does not, in any other way, demonstrate the lack of any possible negative environmental impact. Given this, and as we hope this letter and our more extensive comment letter make clear, CEQA requires that a full EIR be prepared.

Unless and until the Commission has such a “Final” EIR before it, it cannot legally vote to approve the proposed project. It can vote to turn it down, but not to approve it. If the Commission determines to take action on the proposed project without a full Environmental Impact Report, we urge the Commission to deny the project.

Two Fundamental Reasons to Deny the Proposed Project

1. Incompatibility With The Farmland Security Zone

This proposed project is fundamentally inconsistent with the Farmland Security Zone that exists on the subject property. On December 2, 2003, the Board of Supervisors (without environmental review, and certainly over our objections) made a determination that building the proposed facilities on property subject to a Farmland Security Zone contract was permissible, because the proposed facilities were “consistent” with the purposes of the contract. While the Planning Commission has not been asked to pass on the consistency of the proposed project with the Farmland Security Zone contract covering the land, we think that the Commission needs to understand the issues involved, and that the Commission can and should consider whether it is appropriate to build the kind of facilities proposed on lands that have been enforceably restricted to maintain their agricultural production. The Planning Commission has an independent duty to make sure that the County of Monterey follows state law requirements, as it makes decisions about whether or not to approve a proposed project.

We strongly believe that developing a large scale agricultural factory (including a major office building) on prime, commercially productive farmland covered by a Farmland Security Zone contract is not consistent with the purposes of the Farmland Security Zone, nor is it consistent with the provisions of the contract. We also think it is clear that the County’s list of compatible uses does not allow the construction of the proposed large scale agricultural processing facility and office building on property subject to a Farmland Security Zone contract.

The staff report presented to the Planning Commission says that the proposed use “would be consistent with the Principles of Compatibility stated in Section 51238.1(a) of the California Government Code regarding development on lands subject to the Williamson Act. The text of that section is reproduced below. We believe that the Commission will find, upon reading the language of the Code, that the staff report has reached an erroneous conclusion:

51238.1. (a) Uses approved on contracted lands shall be consistent with all of the following principles of compatibility:

(1) The use will not significantly compromise the long-term productive agricultural capability of the subject contracted parcel or parcels or on other contracted lands in agricultural preserves.

(2) The use will not significantly displace or impair current or reasonably foreseeable agricultural operations on the subject contracted parcel or parcels or on other contracted lands in agricultural preserves. Uses that significantly displace agricultural operations on the subject contracted parcel or parcels may be deemed compatible if they relate directly to the production of commercial agricultural products on the subject contracted parcel or parcels or neighboring lands, including activities such as harvesting, processing, or shipping.

(3) The use will not result in the significant removal of adjacent contracted land from agricultural or open-space use.

In evaluating compatibility a board or council shall consider the impacts on noncontracted lands in the agricultural preserve or preserves.

We believe that it is obvious that the proposed factory and office building will “significantly compromise the long-term productive agricultural capability of the…parcel,” and that it will “significantly displace…current…agricultural operations on the…parcel.” In fact, the project will take twenty-seven acres of prime, commercially productive agricultural land out of production. This is the opposite of what the FSZ is supposed to achieve.

We also think that the Commission should closely review the language of the County’s list of compatible uses, for lands subject to a Farmland Security Zone contract. Unless a use is specifically included on this list, the use is not compatible. Here is the language relied upon by D’Arrigo Brothers:

“1. The drying, packing or other processing of an agricultural commodity usually performed on the premises where it is produced but not including slaughter houses, fertilizer yards, bone yards or plants for the reduction of animal or vegetable matter (emphasis added).”

It is obvious that the processing proposed is not “usually performed on the premises.” In fact, as the application materials submitted to the County show, processing of commodities produced on the premises is now (usually) performed in Castroville, an urban and industrial area—and just the kind of area in which agricultural processing facilities are appropriate, and permitted. Not only are the products grown on the premises not now processed on site, but the proposal is to process commodities grown throughout Monterey County. Further, the office building component of the proposed project has nothing to do with the “processing of an agricultural commodity.”

If the County contract were construed to say what D’Arrigo wants it to say, then this would mean that all agricultural lands located in Monterey County on which a Farmland Security Zone contract has been recorded would be deemed appropriate for large scale agricultural processing. The requested determination would also mean that farmland owners could build large office buildings on lands subject to a Farmland Security Zone contract. Such an interpretation would fundamentally change the nature of land uses throughout the County. The possible impacts of this change (one not legally supportable under the current contract) would be extremely significant, and must be analyzed in a full Environmental Impact Report, prior to any decision that could have this result.

As the Planning Commission undoubtedly knows, D’Arrigo Brothers has received significant property tax benefits by promising to abide by the provisions of state law relating to a restriction of possible uses in Farmland Security Zones. The Department of Conservation has written to the county about this matter, and properly cites what the state and the county are supposed to receive in return for the tax benefits provided. As state law has been cited by the Department of Conservation, ”compatibility” exists only when “(a) the use will not significantly compromise long term productive agricultural capability of the subject contracted parcels or other contracted land in preserves; 2) obstruct or displace potential agricultural operations, or 3) induce non-agricultural development of prime farmland.” These principles are to achieve the original purpose of Williamson Act contracts to “preserve the maximum amount of the limited supply of agricultural land [Government Code Section 51220(a)].”

Allowing the placement of the proposed processing facility and office building on the D’Arrigo lands, which are encumbered by a Farmland Security Zone contract, would violate each one of the above principles. Approval would immediately displace existing agricultural production on the contracted parcels. It would displace future agricultural use of this prime land. And the interpretation recommended by County Counsel would “induce nonagricultural development of prime farmland.” Thus, the proposed application must be denied.

2. Inconsistency With the Current General Plan

The proposed project is inconsistent with provisions of the current Monterey County General Plan. As such, it cannot be approved. Specifically, the proposed project is inconsistent with Section 30.0.8 of the Greater Salinas Area Plan. That Section says this:

Agricultural Support Services (coolers, Cold rooms, loading docks and farm equipment shops) may be allowed, subject to obtaining a use permit, on lands designated as "Farmlands", provided that the following findings are made based upon substantial evidence in each case:

a. That the land on which the support facilities are proposed is not suitable for cultivation due to terrain, soil or other physical constraints.

b. That such support facilities are necessary or appropriate in connection with the cultivation, harvesting or processing of crops raised by the applicant on same [sic] portions of the subject property.

c. That the maintenance and operation of such support facilities will not impair the ability to produce crops on the balance of the subject property or on neighboring properties.

Support facilities allowed under this policy shall be subject to the following standards:

a. Such support facilities may be used in connection with the cultivation, harvesting, processing or storage of crops grown on the subject property or crops grown by the applicant or by others on lands in close proximity to the subject property, particularly when such action would retain or increase the amount of farmland for crop production.

b. The land on which such support facilities are constructed shall no [sic] be subdivided from the balance of the subject property.

c. Such support facilities be compatible with land uses on neighboring properties.
[Emphasis added]

The proposed project is fundamentally inconsistent with these General Plan provisions, just as it is fundamentally inconsistent with the Farmland Security Zone on the property. The land involved is eminently “suitable” for cultivation. The applicant is not proposing to process crops that are grown on “some portions of the subject property,” or by others on “lands in close proximity to the subject property.” Because of its inconsistency with these General Plan provisions, the proposed project must be denied.

Conclusion
We believe that the Planning Commission should deny the proposed project, because of its fundamental incompatibility with the Monterey County General Plan, and because of its violation of the state law, local ordinance, and contract provisions that govern what uses are permissible on lands designated as “Farmland Security Zone.” If the Commission chooses not to deny the project, then it must consider a full EIR, prior to voting to approve the project.

We think that the legal provisions relating to this proposed project are clear. We trust that the Commission will not choose to disregard them.

Thank you for taking our views into consideration.

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posted 02.17.04