CHAPTER 12.150
AGRICULTURAL RESOURCE MITIGATION
SECTION:
12.150.010: Purpose And Findings
12.150.040: Mitigation Obligation
12.150.060: Requirements For Agricultural Mitigation Easements
12.150.070: Requirements For Qualified Entities
12.150.080: Approval And Completion
12.150.010 PURPOSE AND FINDINGS:
A. This chapter is adopted under the city’s police power to regulate the use of land to protect and promote the public health, safety, and welfare of its residents, as recognized by Article XI, Section 7 of the California Constitution.
B. Agriculture is a crucial component of the city’s economy and cultural heritage. Agriculture provides numerous jobs for city residents and substantial tax revenue for the city.
C. Agricultural lands within and adjacent to the city contribute to our national food security and are an essential foundation of the city’s agricultural economy.
D. Most of the nonurbanized soils within the Gonzales planning area are classified as "prime" based on the State Department of Conservation’s Important Farmlands Inventory and as "Class I" or "Class II" based on the SCS Land Capability System. These classifications are based on a variety of factors, such as drainage, salinity, slope, thickness, permeability, and susceptibility to erosion. Those local soils not classified as prime are classified as "soils of statewide significance." In Gonzales, the yields per acre are comparable on both the prime soils and the soils of statewide significance. (City of Gonzales General Plan Conservation and Open Space Section, January 2011)
E. Requiring agricultural conservation easements over an equal area of comparable agricultural land to compensate for those that are to be developed, provides protection for the stock of agricultural land.
F. New development also benefits from the conservation of agricultural land that supports the overall economy and culture of the city.
G. As the city must balance the need for agricultural land conservation with other public goals, prohibiting the conversion of agricultural land in some circumstances will not be in the best interest of the people of the city. An overriding consideration in balancing other public goals may include the city’s needs to facilitate housing, commercial, industrial, and infrastructure development, and habitat restoration.
H. To balance these competing public purposes, the city council has determined that it is in the best interest of the people of the city to allow some conversion of agricultural land to proceed, but to also require that such conversion be accompanied by mitigation that provides increased protection for other, comparable agricultural land proximate to the city.
I. Policy COS 4.2 of the City of Gonzales General Plan – Agricultural Easements includes Implementing Action COS-4.2.1. Require new development to contribute to the cost of purchase of permanent agricultural easements beyond the permanent agricultural edges identified in the Land Use Diagram.
J. Policy COS 4.3 of the City of Gonzales General Plan – No Urbanization Outside of Growth Area includes Implementing Action COS-4.3.3 – Agricultural Impact Fund. Establish an agricultural impact mitigation fund structured to purchase agricultural easements on lands shown on the Land Use Diagram as adjacent to but outside the general plan growth area boundary.
K. In some circumstances, it may be appropriate to implement a method of mitigation other than directly obtaining agricultural conservation easements over comparable agricultural land or paying in-lieu fees, if the alternative method of mitigation would provide a comparable mitigation benefit. This chapter accordingly provides development applicants alternatives.
L. This chapter is further intended to foster coordination and cooperation by the city with the county of Monterey as embodied in the March 25, 2014 Memorandum of Agreement (2014 MOA) that requires that these two (2) entities work cooperatively on common planning, growth, and development issues in the city.
M. The 2014 MOA was signed by both parties and demonstrates basic agreements with the county regarding future planning, growth and development issues in and around the city.
N. The 2014 MOA demonstrated agreement along eight (8) major principles in several sections, including Section 6 – Agricultural Land Conservation Program.
O. In Section 6 – Agricultural Land Conservation Program of the 2014 MOA, the city agreed to implement an agricultural land conservation program for development of land within the city’s urban growth boundary/sphere of influence (UGB/SOI).
P. This chapter satisfies components of the city’s agricultural land conservation program. (Ord. 2023-136, 4-17-2023)
12.150.020 TITLE OF CHAPTER:
This chapter shall be entitled "Chapter 12.150 Agricultural Resource Mitigation." References herein to "ordinance" shall refer to this chapter. (Ord. 2023-136, 4-17-2023)
12.150.030 DEFINITIONS:
A. "Development project or discretionary land use approval" means any project requiring a discretionary land use permit from the city including but not limited to a subdivision, conditional use permit, design review permit, or sign permit.
B. "Permanent agricultural edge" means the area depicted in the Gonzales 2010 General Plan at page II-47 which the city intends to permanently protect for agricultural use.
C. "Agricultural mitigation easement" means a perpetual easement or servitude, comparable to a conservation easement, as provided for in sections 815 through 816 of the Civil Code, or an open space easement, provided for in sections 51070 through 51097 of the Government Code, limiting the use of the encumbered land to agricultural and accessory uses, which easement or servitude is used to satisfy the mitigation obligation imposed by this chapter.
D. "Agricultural land" means land that is either currently in agricultural use or substantially undeveloped and capable of agricultural use.
E. "Agricultural use" means use of land to produce and process food, fiber, or livestock for commercial purposes. For purposes of this chapter, farm worker housing is considered an agricultural use in keeping with state law.
F. "Conversion" means conversion of agricultural land to a nonagricultural use. Conversion includes but is not limited to: "rough" and formal grading for development for nonagricultural uses including the installation of roads anticipated for new development, the installation of utility structures and conveyances, the preparation of building pads and supporting infrastructure systems, and the removal of soil cover or the contamination of those soils. Conversion to a nonagricultural use includes those activities and uses that will result in the physical inability to farm the protected soils of the property.
G. "Qualified entity" means an entity qualified to hold agricultural conservation easements in compliance with this chapter, including but not limited to an agricultural land trust, which entity has been approved by the city council concurrently with approval of a development project’s agricultural mitigation required by this chapter or which has been approved by the city council for a different development project in the past five (5) years. A qualified entity must demonstrate sufficient background and experience in holding and maintaining agricultural or other conservation easements. (Ord. 2023-136, 4-17-2023)
12.150.040 MITIGATION OBLIGATION:
A. Conversion Of Land Requiring Mitigation:
1. The city shall require agricultural mitigation as a condition of approval of any development project or discretionary land use approval that proposes conversion of agricultural land to a nonagricultural use, regardless of the land use designation or zoning applicable to the land.
2. Temporary Uses Of Agricultural Land: The need for agricultural mitigation for temporary uses of agricultural land will be considered by the city of Gonzales on a case-by-case basis. Such uses may include the parking of vehicles, trailers, equipment, baker tanks, rigs, and other accessory activities in general support of farming practices, or special events as may be approved by the city. In determining the need for mitigation, the city will consider whether the proposed temporary use allows for the timely, purposeful and deliberate return of the property to its farmland utility.
B. Required Mitigation: Where agricultural mitigation is required pursuant to subsection A of this section, the following mitigations shall be available to a project applicant, subject to final approval by the city:
1. Offer on-site agricultural mitigation easements. Agricultural mitigation easements may be offered on the development project site consistent with the requirements of section 12.150.060.
2. Purchase and/or otherwise provide agricultural mitigation easements off site. Agricultural mitigation easements may be offered at a location other than the development project site consistent with the requirements of section 12.150.060.
3. Purchase agricultural banked mitigation credits. A development project can purchase agricultural mitigation credits from a qualified entity or the city, if available. Purchased credits must ensure that the amount of land preserved via the credit (in acres) is equivalent to the amount of land converted by the development project.
4. Pay a fee in lieu of preserving agricultural land. This amount shall be verified through appropriate independent city appraisal funded by the development project. In-lieu fees for agricultural mitigation will be updated with other city impact fees and schedules and kept current on a regular basis by the city. In-lieu fees will be collected and deposited into the agricultural impact mitigation fund. Fees in lieu will be collected by the city and used for city-sponsored programs in support of agriculture.
5. Implement another approach as approved by the city. A development project may propose another approach to be approved by the city council, or combination of the above options, that:
a. Results in the preservation of the same acreage of agricultural land that is converted which is proximate to the city of Gonzales; or
b. Includes agricultural mitigation easements in the permanent agricultural edge.
C. Development Projects Responsible For Compliance: Development project applicants must comply with this chapter. It is the development project’s responsibility to secure agricultural mitigation pursuant to this chapter, and/or to pay fees in lieu that satisfy the requirements of this chapter.
Nothing in this chapter shall be construed to compel a development project to convey to the city or to a qualified entity an agricultural conservation easement on property owned by the applicant.
D. Exemptions:
1. Affordable Housing: The city council shall exempt from the requirements to mitigate the conversion of prime farmland those specific land areas reserved to house persons of very low income (less than fifty percent (50%) of AMI) and low income (fifty to eighty percent (50 to 80%) of AMI).
2. Land Converted For Public Uses: Agricultural land converted for the following public uses are exempt from the mitigation obligation imposed by this chapter: schools, public parks or public recreational facilities, permanent natural open space, trails and developed open spaces that are open to the public. (Fenced detention or retention basins are not exempt.)
3. City Projects: City projects and city-initiated zoning and/or general plan amendments are exempt from the mitigation obligation imposed by this chapter.
E. Excess Mitigation And Credits:
1. At its sole option, an applicant may choose to arrange for the imposition of an agricultural conservation easement on a larger area of land than the area of land proposed for conversion and thereby generate a mitigation credit equal to the excess net acreage encumbered with the easement.
2. Any excess area encumbered with the agricultural conservation easement shall fully comply with all requirements of this chapter and shall be comparable to the land proposed for conversion to the same degree as the portion of the land offered to satisfy the mitigation obligation in subsections A and B of this section.
3. The city’s community development director shall maintain a ledger indicating the amount of credits created under this section, the holder of those credits, the administrative fees paid by the creator of the credits attributable to the mitigation land covered by the credits, and any subsequent transactions involving those credits. (Ord. 2023-136, 4-17-2023)
12.150.050 RESERVED:
(Ord. 2023-136, 4-17-2023)
12.150.060 REQUIREMENTS FOR AGRICULTURAL MITIGATION EASEMENTS:
A. Agricultural mitigation easements shall be held in perpetuity by a qualified entity, as defined in this chapter.
B. Per the 2014 MOA with the county of Monterey, priority areas for the establishment of agricultural mitigation easements to perfect the permanent agricultural edge, including those eight (8) properties depicted in the Gonzales 2010 General Plan at page II-47.
C. Agricultural mitigation easements shall be comprised of the type and quality of soil comparable to the agricultural land converted and shall consist of a minimum of the same acreage of land converted and may include more.
D. The city shall not approve proposed agricultural mitigation easements unless it finds that the easements comply with each of the following requirements:
1. Location: Either:
a. The agricultural mitigation easement is located within the planning area of the city as shown in land use maps of the city’s general plan as may be amended from time to time; or
b. The agricultural mitigation easement is within five (5) miles of the city’s boundary, and the applicant has demonstrated that the mitigation land contributes to the city’s agricultural economy.
2. Existing Interests And Encumbrances: The agricultural mitigation easement is not already subject to an encumbrance or interest that would legally or practicably prevent converting the land, in whole or in part, to a nonagricultural use, such as a conservation easement, open space easement, flowage easement, avigation easement, long-term agricultural lease, profit, or an interest in the subsurface estate that would preclude development of the surface estate. A contract entered pursuant to the Land Conservation Act, Government Code section 51200 et seq. (Williamson Act) shall not constitute an encumbrance for purposes of this section.
3. Public Ownership: The mitigation land is not owned by any public agency.
4. Activity Specified: The type of agricultural related activity allowed on the agricultural mitigation easement is specified in the easement, and the easement prohibits land uses or activities that substantially impair or diminish the agricultural productive capacity of the land.
5. Declaration Of Mitigation Intent: The agricultural mitigation easement declares that it is intended to satisfy the mitigation obligation imposed by this chapter and that it is subject to the requirements set forth in this chapter.
6. Runs With The Land: The agricultural mitigation easement must run with the land and bind successor owners of the land in perpetuity. The agricultural mitigation easement must also provide that if the qualified entity holding the easement ceases to exist, ownership of the easement shall pass to another qualified entity, or if no other qualified entity is available, to the city.
E. Amendments To Agricultural Mitigation Easements: After the city has approved an agricultural mitigation easement, the easement shall not be amended without further approval by the city council and compliance with any approval requirements imposed by the Attorney General of the State of California for the amendment.
F. Extinguishment: If a court issues a judgment declaring that the purposes of this chapter can no longer be fulfilled by enforcement of an agricultural mitigation easement, the qualified entity holding that easement may extinguish the easement by selling it to the fee owner of the mitigation land, if (1) the action was contested, and the judgment was not entered pursuant to stipulation, or (2) the city of Gonzales was a party to the action and stipulated to the judgment. In the event of such a sale, the qualified entity shall use the proceeds of sale to acquire an agricultural conservation easement or other mitigation land in compliance with this chapter. (Ord. 2023-136, 4-17-2023)
12.150.070 REQUIREMENTS FOR QUALIFIED ENTITIES:
A. To be considered a qualified entity, an entity must (1) be a nonprofit public benefit corporation operating within the county of Monterey that is qualified to hold conservation easements under section 815.3 of the Civil Code and in compliance with the requirements of section 65965 et seq. of the Government Code, and (2) be approved by the city for the purpose of holding and managing agricultural conservation easements.
B. Approval Criteria: In considering whether to approve an entity as a qualified entity, the city shall consider the following criteria:
1. Whether the entity’s principal purpose includes holding and administering easements for the purposes of conserving and maintaining lands in agricultural production; and
2. Whether the entity has an established record of holding and administering easements for the purposes of conserving and maintaining lands in agricultural production; and
3. The extent and duration of the entity’s involvement in agricultural land conservation within the county of Monterey; and
4. Whether the entity has been accredited by the Land Trust Accreditation Commission; and
5. Whether the entity is a member in good standing of an established and widely recognized California statewide association of land trusts.
C. Although the city may hold agricultural conservation easements, it is the intent of the city to transfer most, if not all, of the easements that are received under this chapter to a qualified entity for monitoring, management, and enforcement.
D. No qualified entity shall sell, lease, hypothecate, or encumber any interest in any agricultural mitigation easement within the sphere of influence of the city without the prior approval of the city council.
E. Termination Of Qualified Entity: If a qualified entity intends or reasonably expects to cease operations, it shall assign any agricultural conservation easements it holds to another qualified entity or to the city.
F. Monitoring And Enforcement: The qualified entity shall monitor the use of all mitigation land subject to agricultural conservation easements held by the entity and enforce compliance with the terms of those agricultural conservation easements.
G. Reporting: On or before December 31 of each year after a qualified entity is approved by the city council, the entity shall provide to the city of Gonzales community development director an annual report describing the activities undertaken by the entity under this chapter. That report shall describe the status of the mitigation land and/or agricultural conservation easements held by the entity, including a summary of all action taken to enforce its agricultural conservation easements, and an accounting of the use of administrative and in-lieu fees remitted to it by the city. (Ord. 2023-136, 4-17-2023)
12.150.080 APPROVAL AND COMPLETION:
A. All mitigation proposed by an applicant to comply with this chapter shall be reviewed by the planning commission for consistency with the terms and purposes of this chapter. The planning commission shall recommend approval, conditional approval, or disapproval to the city council. The planning commission shall not recommend approval of the proposed mitigation unless it finds that mitigation to be consistent with the requirements for mitigation land and agricultural conservation easements set forth in section 12.150.060.
B. The city council shall consider the planning commission’s recommendation and shall either approve, conditionally approve, or disapprove the proposed mitigation.
C. The city shall not issue any permit or other approval for any project involving a conversion subject to the mitigation obligation under this chapter unless the city council has previously approved proposed mitigation in compliance with this chapter.
D. Completion Of Mitigation:
1. The applicant for conversion must complete all required mitigation prior to initiating any activity resulting in interference with agricultural practices on the property subject to conversion. The city shall not issue any building, grading, or encroachment permits until mitigation has been completed.
2. Mitigation shall be deemed complete when the approved agricultural mitigation easement has been recorded and the applicant has paid the required administrative fee. However, if the applicant elects to seek approval of an alternative mitigation option, mitigation shall be deemed complete when the city provides the applicant with a letter indicating that mitigation is complete. (Ord. 2023-136, 4-17-2023)
12.150.090 MISCELLANEOUS:
A. The provisions of this chapter shall not be applicable to the extent, but only to the extent, that their application would violate the constitution or laws of the United States or of the state of California. The city shall apply the chapter to avoid such unconstitutionality or illegality.
B. If any portion of this chapter is held to be unconstitutional, such decision shall not affect the validity of the remaining portions of the chapter. The city council declares that it would have enacted this chapter and each section, subsection, paragraph, sentence, clause, or phrase thereof even if a portion of the chapter were declared unconstitutional.
C. Nothing in this chapter shall be construed to abridge or narrow the city’s police power. The city retains its full power and discretion to deny a proposed conversion on the basis that the proposed conversion is inconsistent with the public health, safety, or welfare because of the loss of agricultural land or otherwise. (Ord. 2023-136, 4-17-2023)