LandWatch Opposes Use of Prime Farmland For Offices and Factories

December 7, 2003

Juan Sanchez, Chair
Monterey County Planning Commission
County Governmental Center, 240 Church Street
Salinas, CA 93901

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

Meeting Date: December 10, 2003 – Agenda Item #112

Dear Chairperson Sanchez and Members of the Planning Commission:

LandWatch Monterey County urges the Planning Commission to make no decision on the proposed D’Arrigo Brothers agricultural processing facility until the Commission has reviewed a full Environmental Impact Report, as required by the California Environmental Quality Act. If the Commission determines to take action on the proposed project without a full Environmental Impact Report, then we urge the Commission to deny the project.

As you know, the California Environmental Quality Act (CEQA) requires a public agency to prepare a full Environmental Impact Report (EIR) prior to making any decision that might have a significant negative impact on the environment. The proposed construction of a 219,000 square foot agricultural processing facility, including a separate 24,000 square foot office building, on twenty-seven acres of commercially productive agricultural land, utilizing hazardous chemicals, and generating over 900 heavy truck trips a day, certainly qualifies as a project that might have an adverse environmental impact.

Why The Planning Commission Should Require A Full EIR

What follows is a list of our most significant reasons for urging the preparation of a full EIR. I have had an opportunity to review both the Staff Report for your December 10, 2003 meeting, and the Notice of Intent To Adopt A Mitigated Negative Declaration, along with other documents relating to the proposed Mitigated Negative Declaration.

1. The project is described (sometimes using different terminology) as an “agricultural processing facility.” In fact, the project includes a “stand alone” office building of approximately 24,000 square feet in size. The project has thus not been properly described, with the result that it has not been properly analyzed.
   
   
2. Similarly, the Initial Study states on Page 3 that the proposed project is “one mile southeast of the Town of Spreckels.” Page 20 says that “the Town of Spreckels…is locate [sic] over _ mile … from the site.” What is the actual distance between the proposed project and the Town of Spreckels? Adequate environmental analysis cannot properly be based on an inaccurate project description, or on “estimates.”
   
   
3. The “Checklist” found on Page 4 of the Initial Study indicates that Monterey County believes that none of the following environmental factors would be potentially affected by this project: hazards/hazardous materials; public services; cultural resources; land use planning; and population/housing. In fact, as noted in this letter, there are likely to be potential and significant environmental and other impacts in every one of these categories.
   
   
4. Page 7 of the Initial Study outlines (in Section V.) how the County is supposed to evaluate potential environmental impacts. Among other things, the County must “take into account the whole action involved, including offsite as well as onsite, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts. The Initial Study and the analysis that is supposed to support the proposed Mitigated Negative Declaration consistently fail this test.
   
   
5. As also noted on Page 7 (in Section V.), when the use of a Mitigated Negative Declaration is proposed, CEQA requires the County to “describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level.” The documents circulated for public comment do not include an actual mitigated negative declaration, and the proposed mitigated negative declaration has not been submitted to your Commission. Neither you nor the public have had an opportunity to determine that all of the identified impacts have been reduced to the point of insignificance. This reinforces the basic CEQA requirement that a full EIR be prepared.
   
   
6. The Environmental Checklist says, on Page 9, that there are no “potentially significant impacts” with respects to the aesthetics of the proposed project. This is simply not true. While the subject property may not be located within a designated visually sensitive area, CEQA requires that the County independently analyze the possible aesthetic impact of the proposal. Putting a factory into an area largely devoted to field agriculture, and that is nearby the scenic and historic town of Spreckels, may have a significant negative impact on the aesthetics of the area. There must be a real analysis of what the visual and aesthetic impacts of a huge new industrial facility (and a parking lot) will have in this area. Furthermore, the Initial Study does note that the facility will create a new source of substantial light or glare, and dismisses this (with no analysis) as having “less than significant impact.” CEQA requires a real analysis of these issues, in a full EIR.
   
   
7. Under the “Agricultural Resources” section of the Environmental Checklist the County indicates that the farmland conversion proposed will have a “less than significant impact.” No adequate analysis underlies this claim, particularly when potential cumulative impacts are considered. Page 11 of the Initial Study claims that “development of the proposed facility [on 27 acres] would result in the displacement of less than 1% of the owner’s land under the Farmland Security Zone Contracts (2,312 acres).” Aside from the factual error (27 is more than 1% of 2312), this does not address the concern of using land that is designated as ‘Prime Farmlands’ (under the Greater Salinas Area Plan) for the construction of an agricultural processing plant. These lands are scarce, and an owner like D’Arrigo, who holds about 10,250 acres, may well be able to find twenty-seven acres that are not ‘”Prime Farmlands,” and that can be developed without Monterey County losing yet more of its most commercially productive lands. There may well be alternative sites, within existing industrial areas, that could avoid some of the impacts that will be generated if the proposed project goes forward. The discussion of other options is part of a full EIR, and is clearly needed here.
   
   
8. An obvious alternative to building a new facility at the proposed location (on commercially productive agricultural land) would be to expand operations in some way in Castroville, where D’Arrigo Brothers currently carries out agricultural processing. This alternative has not been studied, or measured against the proposed project. CEQA requires such an analysis. Locations in industrial areas in Salinas might also be available, and environmentally superior.
   
   
9. LandWatch is informed and believes that most of the produce that would be processed in the proposed facility will come from properties located south of the proposed location in the Spreckels area. CEQA requires an environmental analysis that will actually examine the “flow” of the produce, from field, to processing facility, and to market, to see if there are alternatives that could reduce environmental impacts. While an obvious alternative is to expand the current facility, or to locate in an industrial area in Salinas, industrial sites within the City of Gonzales should be specifically examined as a possible alternative. When a full analysis is done, it may well be that overall truck trips, and air and traffic impacts, could be reduced by building the proposed facility on a different site, not to mention the possibility that a different site could eliminate the need to pave over twenty-seven acres of commercially productive agricultural land.
   
   
10. In addition, if this agricultural area is now going to be an area in which factories are permitted, the implications for adjacent lands must be evaluated. Clearly, the agricultural land conversion proposed is a “potentially significant impact,” and a full EIR is required to evaluate this impact.
    
    
11. If the County wishes to claim that the admitted loss of this land is proposed to be “mitigated” in some way, then they need to demonstrate how such mitigation is to be effectuated. Why isn’t a condition proposed requiring the property owner to place binding restrictions on his other land, preventing further factory development? That would be a possible mitigation, but it’s not proposed, or even analyzed. Simply saying that twenty-seven acres isn’t much, which is essentially what the County claims, is absolutely inadequate. The same reasoning would apply to every other twenty-seven acres of land proposed for factory development, and so the “cumulative” impacts could be considerable. A full EIR is required.
    
    
12. The Initial Study claims on Page 10 that there is no “potentially significant impact” with respect to a “conflict with … a Williamson Act contract.” In fact, as an attachment to the Initial Study indicates (represented as Exhibit B to Farmland Security Zone Contract #00-011), the current contract covering the property would not allow the proposed factory use. The contract says, in Paragraph 1, that [only] the following land uses would be compatible with agricultural use: … “The drying, packing or other processing of an agricultural commodity usually performed on the premises where it is produced….” The proposed factory on the D’Arrigo Brothers property is intended to process materials from all over the Salinas Valley. Such processing is currently being carried out in an industrial facility located in Castroville (an “urbanized” setting). Clearly, the processing proposed is not “usually performed” on the premises where the agricultural commodity is produced, and this proposal is not for processing materials produced on the premises where production occurs. This failure to conform the project to the binding Farmland Security Zone Contract is an independent reason to deny the project. With respect to CEQA review, the Checklist under Agricultural Resources is clearly wrong when it says that there is “no impact” with respect to “conflict with … a Williamson Act contract.” Full EIR analysis would examine the provisions on all Williamson Act and Farmland Security Zone contracts now in effect in Monterey County. If (as may be guessed) they all contain similar language, and the same construction could be placed on those contractual provisions as is being placed on these, then mammoth numbers of acres, throughout the County, could be opened to agricultural factory development. This potential cumulative impact needs to be reviewed in a full EIR.
    
    
13. On Page 14, in the “Cultural Resources” section, the County claims that there would be no possible impact whatsoever. The justification for this totally erroneous conclusion is a reference to “Chapter IV of the Initial Study.” In fact, this statement is contained in the Initial Study, which does not have a “Chapter IV.” At any rate, it is clear that there could be a possible substantial adverse change to a significant historical resource. The Town of Spreckels is such a historical resource. The construction of a mammoth agricultural factory nearby, covering 27 acres, might adversely affect the historic character of Spreckels. When the likelihood of massive new truck traffic going through and adjacent to the Town is taken into effect, it is clear that the impacts could be truly huge. These possible impacts deserve full analysis in an EIR.
    
    
14. The section of the Environmental Checklist directed at the possible impacts of Hazards and Hazardous Materials has been left “blank,” with another erroneous reference (to “Chapter V of the Initial Study). The Hazardous Materials Questionnaire prepared by the applicant states that the plant will be using hazardous materials (such as oil, fuel, solvents, compressed gases, acids, corrosives, pesticides, fertilizers, paints or other chemicals, and particularly including ammonia, chlorine, sulfuric acid, formaldehyde, hydrogen peroxide, and methyl bromide). The factory will be using them in quantities of 55 gallons/500 lbs/200 cu. ft. and above. It will be generating some quantities of hazardous wastes (such as waste oil, waste solvents, etc.). Yet in spite of all this, the Initial Study does not check “Hazards/Hazardous Materials” as even being potentially affected by this project. The fact that the facility’s operation would be subject to compliance with various laws (Title 19 and Title 22 of the California Code of Regulations and Chapters 6.95 and 6.50 of the California Health and Safety Code) does not mean that the County doesn’t have to do a full CEQA analysis. It does. It is incredible for the County to claim zero potential for impact, given that the plant will be using these hazardous materials. A full EIR is definitely required under state law.
    
    
15. The Environmental Checklist section on “Hydrology and Water Quality” follows the pattern of claiming no potentially significant impacts. Yet, the potential for adverse water quality impacts is obvious even to a layperson Water will be provided by agricultural wells on site. Wastewater, in large amounts, will be sent back to the very same aquifer. What analysis convinces the County that this isn’t going to be a problem for long term water quality? Materials in the project file indicate that the County Health Department has done percolation testing on the property, and found a number of areas that are not adequate or suitable. Again, an analysis of the issues is required. The Initial Study notes a possible alleviation of current groundwater extractions, but does not analyze water quality impacts at all. In order to comply with CEQA, a full EIR is required.
    
    
16. The “Land Use Planning” section of the Environmental Checklist again indicates no potentially significant impacts. However, the cumulative impact of allowing large scale agricultural processing facilities on commercially productive agricultural land, demands a full EIR analysis. The County’s land use plan indicates that this area is to be used for growing crops. Factories related to agricultural use are located in areas like Pajaro and Castroville (where the current D’Arrigo facility is, in fact, located). The land use implications of a project approval for this project are very significant. This is a precedent-setting application. The possible impacts demand analysis in a full EIR.
    
    
17. The discussion of possible “Noise” impacts in the Initial Study is woefully inadequate. First, the County claims on Page 20 that there will be only a “slight” increase in traffic volumes. Yet, if the project were approved, over nine hundred large trucks a day would begin driving into and out of the factory, along roads adjacent to (and in) the historic Town of Spreckels, and into the City of Salinas. What analysis indicates that the truck and factory noises are not even “potentially” significant? None. What “mitigations” are proposed? No specific mitigations are included. CEQA demands better, and an EIR undertaking the required analysis should be prepared.
    
    
18. The November 22, 2003 comment letter from Robert Russell, Deputy City Engineer for the City of Salinas, attached to the Planning Commission staff report, clearly requires a response that can only be provided by a full EIR.
    
    
19. The applicant indicates that up to 200 persons would be employed in the proposed new factory. If so, why is there not going to be a possible housing impact? On Page 21, the Initial Study simply claims, without analysis, that there is no potentially significant impact. CEQA requires that if there might be an impact, a full EIR should be done. That’s what’s needed in this case, particularly in view of the affordable housing crisis affecting all lower income persons in Monterey County (especially farmworkers).
    
    
20. The Initial Study Environmental Checklist claims, at Page 21, that there is no potentially significant impact with respect to “fire protection.” This is a project that, if approved, would bring significant quantities of highly toxic and volatile chemicals (ammonia, as an example) into fairly close proximity to the residential Town of Spreckels, and into a factory environment in which up to 200 persons might be employed. What fire protection response could and would be provided in the event of a hazardous materials emergency, or a fire? What agency is responsible, and what are their current capabilities? A full EIR is needed to evaluate an impact that is definitely “potentially significant.”
    
    
21. Perhaps the most egregious and obvious deficiencies of the Initial Study are found in the section dealing with “Transportation/Traffic.” Massive numbers of new truck trips will occur is the project is approved. Here’s the mitigation measure proposed: “No traffic from the project shall go through the Town of Spreckels.” This is not a “mitigation measure.” This is a completely unsubstantiated and unenforceable assertion. CEQA demands that if the impacts of the project are to be “mitigated,” then a full set of mitigation measures that have a chance of being effective need to be made conditions of the project. As published, the Notice of Intention To Adopt A Mitigated Negative Declaration” is totally inadequate under state law, and a full EIR is legally required.

LandWatch works on land use policy issues, and we do everything we can to insist that local governmental agencies follow the environmental review requirements of state law. This proposed project would cover twenty-seven acres of prime farmland with a new agricultural processing factory. It’s a huge project. It is not an appropriate candidate for a “Negative Declaration.”

Our concern is not only with the direct impacts of the proposed project—which appear considerable—but also in the possibly adverse impact of the proposed project on the future of the Spreckels area. This area contains some of the most productive agricultural land in the world. It also is home to the historic town of Spreckels, and the proposed project would have an extremely and very negative impact on that community.

State Public Resources Code Section 21082.2 is the provision of state law that determines when an Environmental Impact Report must be prepared:

“(a) The lead agency shall determine whether a project may have a significant effect on the environment based on substantial evidence in light of the whole record.

“(b) The existence of public controversy over the environmental effects of a project shall not require preparation of an environmental impact report if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment.

“(c) Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment, is not substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.

“(d) If there is [any] substantial evidence, in light of the whole record before the lead agency, that a project may have a significant effect on the environment, an environmental impact report shall be prepared. (Emphasis and brackets added.)

“(e) Statements in an environmental impact report and comments with respect to an environmental impact report shall not be deemed determinative of whether the project may have a significant effect on the environment.”

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 Initial Study and Notice of Intention To Adopt A Mitigated Negative Declaration do not include an actual mitigated negative declaration, demonstrating that all of the identified impacts have been reduced to the point of insignificance, and do not, in any other way, demonstrate the lack of any possible negative environmental impact. Given this, and as we hope this letter makes clear, CEQA requires that a full EIR be prepared.

The Proposed Project Is Inconsistent With the Farmland Security Zone and FSZ Contract

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.

I have had an opportunity to review the memo of County Counsel, included in the Agenda Packet for the Board of Supervisor’s December 2, 2003 meeting. If the Commission has not reviewed this material, it should. Among other things, the County Counsel’s memo says, “The Department of Conservation concurs” with the County Counsel’s recommendation that development of the proposed agricultural processing plant is consistent with the County’s approved compatible uses within Farmland Security Zones. In fact, this is not an accurate representation of what the Department of Conservation said in its letter, and the Department of Conservation has now asked for an opportunity to review the proposed project. The Planning Commission should (at the very least) delay its decision on this proposed project until after the County has heard from the Department of Conservation.

The original Department of Conservation letter says that the County has asked for an “official determination.” It then immediately indicates that it is providing “the following comments.” In other words, the original Department of Conservation letter is a comment letter, and is not an “official determination’ Further, and contrary to what the County Counsel says, the Department of Conservation does not agree with County Counsel’s recommendation. Their letter states, “the expanded cooler facility could be considered a compatible use… (emphasis added). They most emphatically do not say that it “is” a compatible use. Further, the proposed project is not only for processing facilities. It also includes a 24,000 square foot office building, and parking to support such office uses, a fact clearly not understood by the Department of Conservation.

We 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.

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 letter from the Department of Conservation 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.”

The original comments of the Department of Conservation were clearly not a statement determining that what is proposed is acceptable, or consistent with either state law or the existing contracts. Furthermore, it is clear that the Department’s comment letter was based on an erroneous or partial understanding of what is being proposed. The Department, once it learned how its original letter was used, officially asked the County for time to do a review of the proposal, so that its opinion could properly reflect what D’Arrigo Brothers is actually proposing. The Commission should get that analysis before proceeding to a decision.

If The Commission Acts on the Project, It Should Deny It

As we hope the foregoing comments have made clear, the law requires the Commission to have reviewed a full EIR prior to acting on the proposed project. CEQA is intended to provide decisionmakers with the kind of information they need to make good decisions. Because you don’t have the right information, you can’t really evaluate this proposed project in any proper way. The stakes for Monterey County agriculture, and for the Town of Spreckels, are very large. All we are asking is that you require that a full EIR be prepared, and presented to you for your study, before making such an important decision.

If the Commission determines to make a decision without the legally-required EIR, we urge the Commission to deny the project.

First, the project as proposed includes a “stand alone” 24,000 square foot office building, and there is no justification for proposing to build such an office building on prime, commercially viable agricultural land. The ‘Farmland Security Zone” contract governing the use of this property does not in the most remote way authorize such an office structure. The structure is not “incidental,” and cannot and should not be approved. Since the proposed project proposes this inadmissible element, it needs to be redesigned, at the very least. The Commission should deny the project in its current configuration.

Finally, we believe, as a matter of policy, that the County of Monterey should not approve a project that would set a precedent for the future conversion of the commercially productive agricultural land surrounding Spreckels, or that would undermine the provisions of Williamson

Act contracts designed to protect commercially productive agricultural land throughout the entire county. The “Farmlands” zoning designation does not give a property owner the “right” to place an agricultural processing plant on prime, commercially productive farmland. Whether or not to approve the current application is a matter within the discretion of the Commission. If the Commission proceeds to consider the project on the merits, without the required EIR, and without hearing further from the Department of Conservation, we urge the Commission to deny the project.

Thank you for taking our views into consideration.

[Return to Spreckels Issues and Actions]

posted 12.08.03