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HomeMy WebLinkAboutLetter from Barbara Brenner of Churchwell White regarding Comments to Draft Agriculture Mitigation Ordinance CHURCHWELL WHITE Churchwett White LLP 1201 K Street, Suite 710 Sacramento, CA 95814 M 916.468.0950 F 916.468.0951 January 15, 2014 Barbara A. Brenner 0 916.468.0625 barbara@churchwellwhite.com VIA US MAIL &E-MAIL(DBreedon@buttecounty.net) SOW OF S Butte County Planning Commission 7 County Center Drive JAN 21 2014 Oroville, CA 95965 �� � Attn: Dan Breedon, AICP Re: Comments to Draft Agriculture Mitigation Ordinance Dear Commissioners: We represent the developers of the Rio d'Oro Specific Plan project("Rio d'Oro"),which is located immediately southwest of the City of Oroville, in an unincorporated area of Butte County (the "County"). We have reviewed the County's Draft Agriculture Mitigation Ordinance, dated October 25, 2013 ("AMO"), and we have analyzed the AMO in conjunction with the County's 2030 General Plan("General Plan"),General Plan Land Use Map and General Plan Environmental Impact Report ("General Plan ER"). We also reviewed the AMO in comparison to adopted agriculture mitigation ordinances throughout California. Rio D'Oro is a project comprised of three major components involving the development of up to 2,700 units of compact, mixed housing stock,the creation of up to 282,000 net square feet of retail and commercial uses, and the preservation of more than 275 acres for habitat conservation. The development footprint of Rio d'Oro is designated in the General Plan as a "Specific Plan to be Developed"overlay("Specific Plan Overlay"), with an interim Agriculture designation. The AMO currently exempts Specific Plan Overlays, such as Rio d'Oro, included in the General Plan. During its meeting of November 21, 2013, however, the Planning Commission requested staff to provide additional information about the possibility of applying the AMO to Rio d'Oro and other Specific Plan Overlay areas. In response, this letter provides Rio d'Oro's initial comments and considerations as to the detrimental impacts the AMO would have on areas designated as Specific Plan Overlay. Applying the AMO to Specific Plan Overlays would conflict with the goals and land use designations under the General Plan. Additionally, the AMO provides a robust set of conservation requirements, which the Planning Commission should consider within the greater context of development trends and infrastructure challenges facing the County. Butte County Planning Commission January 15,2014 Page 2 of 5 1. The AMO is inconsistent with the planned growth areas set forth in the General Plan. The AMO currently exempts Rio D'Oro, and other areas included in Specific Plan Overlays that were identified as planned growth areas in the General Plan. (General Plan, pp. 68-73.) This exemption recognizes many of the goals, policies and action items under the General Plan, which aim to balance agricultural preservation with logical and orderly urban development. On the other hand, removing the exemption for Specific Plan Overlays would lead to internal and external inconsistencies with the General Plan, which may subject the AMO to legal challenge. As a governing document, the general plan is "at the top of the hierarchy of local government law regulating land use." (Fonseca v. City of Gilroy (2007) 148 Cal. App. 4th 1174, 1182; citing DeVita v. County of Napa (1995) 9 Cal. 4th 763, 773.) Land use ordinances must be consistent with the general plan (City of Irvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, 879), and the elements of a general plan must be internally consistent with each other(Sierra Club v. Board of Supervisors(1981) 126 Cal.App.3d 698,704). A land use ordinance is consistent with a general plan where, "considering all of its aspects, the ordinance furthers the objectives and policies of the general plan and does not obstruct their attainment." (City of Irvine, supra, at 879.) The General Plan currently provides that the AMO should apply to areas where amendment of the General Plan is required to redesignate Agriculture areas to non-agricultural uses.t It is important to note that the Specific Plan Overlay areas will not require amendment of the General Plan with regard to any land use designations. Although Specific Plan Overlays maintain their underlying land use designations, they are designed to automatically incorporate the land use designations of the specific plan upon adoption. (General Plan, p. 69.) Therefore, by applying the AMO to Specific Plan Overlay areas, the AMO would require mitigation for areas that have already been redesignated under the General Plan, and in areas where no amendment of the General Plan is required with regard to any underlying Agriculture land use designation. This approach raises concerns regarding the internal consistency of the General Plan, and the consistency of the AMO with the General Plan. • Moreover, if the AMO were applicable to Specific Plan Overlay areas,the AMO would treat urban uses proposed by the General Plan similar to remote, agricultural zones and designated areas without the Specific Plan Overlay. This is inconsistent with the following General Plan Goals: Goal LU-1: Continue to uphold and respect the planning principles on which the County's land use map is based. Goal LU-2:Provide for orderly,well-planned,and balanced growth that maintains private property rights. General Plan Action AG-A2.I provides the basis for establishing the AMO,to"[c]reate an agricultural mitigation ordinance in which developers will be required to permanently protect agricultural land of equal or greater value in place of land that is redesignated from Agriculture to a non-agricultural designation. (Emphasis added.) Butte County Planning Commission January 15,2014 Page 3 of 5 Goal LU-6: Provide adequate land for the development of public and quasi-public uses,as a means to provide necessary public services and facilities in support of existing and new residential, commercial, and industrial land uses. Goal LU-8: Promote development near existing infrastructure and services, and within already- developed areas. Goal AG-5: Reduce conflicts between urban and agricultural uses and between habitat mitigation banking and agricultural uses. Lastly, with regard to the General Plan, we note that the AMO is not a mitigation measure under the General Plan ER to reduce the impacts from the conversion of agricultural land in areas already identified for future growth. The General Plan ER identified the conversion of agricultural acreage anticipated by build out of the General Plan. The use of Specific Plan Overlays was intended to allow those properties to continue agricultural operation until development occurred, consistent with the General Plan, and consistent with all mitigation requirements under the General Plan EIR. In light of the above General Plan considerations, the AMO should not apply to Specific Plan Overlay areas, including Rio d'Oro. The developers of Rio d'Oro have partnered with the County since 2009, prior to the adoption of the current General Plan, to develop the project in a manner that fully mitigates impacts identified under the General Plan EIR, such as the conversion of agricultural land. As a result, the General Plan includes the entire development footprint of Rio d'Oro as a Specific Plan Overlay. If the County approves Rio d'Oro, the land use designations described in the specific plan document would replace the designations in the General Plan without a formal General Plan amendment,which is the purpose of the Specific Plan Overlay. The General Plan also includes a rough outline of development densities for Rio d'Oro,which would take effect immediately upon approval of the project. (General Plan,p.73.) Applying the AMO to Rio d'Oro would be inconsistent with the General Plan, as it would require mitigation of agricultural lands in situations where formal amendment of the Agriculture land use designation is not required. 2. Applying the AMO to Rio d'Oro does not fulfill the overall policy objectives of agricultural mitigation ordinances. The AMO, in its current form, provides a strong set of conservation principles. Aside from the Specific Plan Overlays and other limited areas of concern,the AMO applies to all lands designated as Agriculture under the General Plan. As a result,in-kind mitigation is required for the conversion of Prime Farmland, Non-Prime Farmland, Farmland of Statewide Importance, grazing lands, and any other land zoned Agriculture, whether or not the land is actively farmed. In addition, the County is considering adopting an aggressive 2:1 mitigation ratio, which is on par with jurisdictions in California where development pressures are much greater. The AMO also includes a broad set of options for mitigation banking and the payment of in-lieu fees to ensure that conservation easement parcels are unified and administrable. Finally,the AMO requires adequate Butte County Planning Commission January 15,2014 Page 4 of 5 water supplies for properties to be included in an agricultural easement. These are all expensive objectives. The American Farmland Trust raises five objectives in establishing agricultural conservation ordinances: (1) stabilize agricultural land uses and values; (2) direct growth away from the most important farmland; (3) promote more efficient urban development; (4) finance permanent protection of the best farmland; and (5) promote agricultural economic viability. Here, removal of the exemption for Specific Plan Overlays would run counter to the objectives of directing growth away from the most important farmland and promoting efficient urban development. A sample project included in the AMO staff report provides a good sense of how the AMO could affect Rio D'Oro, if it were applicable to the Specific Plan Overlay areas. Staff forecasted that the conversion of a 520-acre orchard and pasture to a non-Agriculture land use designation would add over$1.02 million in mitigation costs to the development of that project. Actual costs under a 2:1 mitigation requirement, however, would exceed $2 million.2 (November 21, 2013 Planning Commission Staff Report,p.6.) This cost would be in addition to other mitigation costs associated with federal wetland permits, and Swainson's Hawk and other habitat mitigation requirements pursuant to CEQA, or the Butte Regional Conservation Plan, once adopted. The AMO, as proposed, includes substantive mitigation requirements on par with other jurisdictions in California that have adopted similar ordinances. By requiring payment of more than $2 million in agricultural mitigation, as a precursor to develop areas already anticipated for urban uses, the County would be creating disincentives for smart growth and orderly, sustainable development patterns, which were envisioned by the local community, analyzed in the General Plan ER and memorialized in the General Plan through the Specific Plan Overlays. These disincentives would inevitably lead to haphazard development within rural areas, frustrating the overall purpose of agricultural mitigation and the underlying principles of the AMO. 3. The County faces challenges in providing vital infrastructure which, under current development finance models, must be achieved through balanced growth. As illustrated in the above example, it seems illogical to penalize areas identified for growth, and areas with close proximity to necessary infrastructure and existing development, with the same mitigation fees that would be applied to similar projects in rural Agriculture areas far removed from public infrastructure, such as roads, sewer and water service. Moreover, the County should consider the AMO in the context of infrastructure challenges facing the region. Projects such as Rio d'Oro are prepared to commit significant resources for infrastructure improvements, which will aid the County and local agencies to meet increasingly stringent state requirements, such as discharge standards for water and sewer services. Rio d'Oro is committed to developing the most 2 The staff report provides that a 520-acre orchard and pasture would cost $910,000 in conservation easement acquisition costs. Although the staff report did not indicate whether this acquisition cost incorporated a 2:1 conservation ratio, we confirmed with staff that a 1:1 ratio was used in its calculation. Therefore,overall easement acquisition costs for a 520-acre orchard would likely total more than$2 million. Butte County Planning Commission January 15,2014 Page 5 of 5 advanced and efficient housing stock in the region,which will utilize tertiary treated water,passive solar design and other measures to reduce discharges and other environmental impacts of the built environment. As the region remains highly affected by the collapse of the housing market, the County should consider the impacts that the AMO would have on the economic feasibility of projects such as Rio d'Oro. Based on the above, we encourage the County Planning Commission and staff to include the exemption for Specific Plan Overlays in the Commission's recommendation to the Butte County Board of Supervisors regarding the AMO. Please do not hesitate to contact me should you have any comments, concerns, or questions. Best Regards, CH - LLP ctI Partner cc: Scott Belyea Mary Kennedy,Planning Commission Chair Charles Nelson, Planning Commission Vice Chair Rocky Donati,Planning Commissioner Alan White, Planning Commissioner Harrel Wilson,Planning Commissioner Bill Connelly, Board Supervisor Larry Wahl, Board Supervisor Maureen Kirk, Board Supervisor Steve Lambert, Board Supervisor Doug Teeter, Board Supervisor