Sierra Club threatens suit over ag land policy

Visalia City Council voted to remove the policy, a tool in preventing sprawl and preserving farmland, from its 2030 General Plan

VISALIA – A month after the Visalia City Council threw out a policy designed to prevent urban sprawl, the Sierra Club is threatening to sue the city over the change. The Kern-Kaweah chapter of the environmental group filed a petition in Tulare County Superior Court on Aug. 31 requesting an injunction against implementation of the new policy, which does not include an ag mitigation policy (AMP). The filing asks the court to order the city to reverse its decision or face a full-scale court battle.

Home builders don’t like AMPs. Farm bureaus say they don’t need them. And the Visalia City Council says agriculture conservation easements like AMPs could adversely affect efforts by both to develop affordable housing or preserve private property rights for farmers who may be forced to fallow their lands.

The Visalia City Council has been watching the boom in residential construction, up 40% in the past year, and worries the city is running out of space to build new homes. Under the AMP, builders within the city’s Tier 1 boundary did not have to pay an ag mitigation fee. Almost eight years after the adoption of the 2030 General Plan, 86% of Tier 1 land has been developed leaving just 1,444 acres of the original 10,460 acres of residential land. Development within Tiers II and III can only occur after the city issues 5,850 residential building permits and 480,000 square feet of commercial development space. The city passed those thresholds in June 2021 and November 2014, respectively. Builders had already filed applications on Tier II land in anticipation of passing the milestones.

Even though the plan was adopted in 2014, no one has had to pay the AMP fee yet. But now their plan called for payments to start. So, they changed the plan.

In July, the Visalia City Council opened the door to another 7,500 acres that could be developed in both Tier II and later Tier III, including 1,500 acres in Tier II. But before they opened the door, they threw out the ag mitigation fee adopted as part of the General Plan in 2014. The lawsuit argues the decision made it “clear the Council’s true intention was to lay the groundwork for eliminating the requirement of [agriculture conservation easements] for any proposed development within the Tier II and III.” Without a challenge, Tier II land could have been subdivided and parceled out.

Uncertain future

The city attorney advised the General Plan could be “modified” due to changes in case law since 2014, such as the Sustainable Groundwater Management Act which could affect the availability of water to some farmland within the city’s growth boundaries.

Greg Collins was the only councilmember to vote against the AMP’s removal in a 4-1 vote on Aug. 2, 2021. Collins championed the program and has long favored more infill projects with higher density residential units. Collins and Mayor Steve Nelsen, who voted to remove the AMP, have been on the council since the 2030 General Plan was originally adopted in 2014.

Several environmental and conservation groups support retention of the program saying it will save farmland and cut urban sprawl. They fear cities will grow together like Fresno/Clovis.

Joining the Kern-Kaweah chapter of the Sierra Club in filing the petition was a group called Central Valley Partnership, which describes itself as a nonprofit with a mission to “achieve social, racial, environmental and economic justice in the San Joaquin Valley.” The complaint alleges the city erred by not doing a full environmental study of the change in policy.

“Petitioners request this relief because Visalia abused its discretion in approving the elimination of the 1:1 agricultural mitigation requirement and violated the California Environmental Quality Act (CEQA) by certifying an Addendum.”

The city made their addendum available for a 10-day public review and comment period from May 19, 2021 to May 28, 2021. But the addendum was not a full environmental study of what the Sierra Club suggests are “substantial changes” that include the “elimination of the requirement for 1:1 mitigation of loss of prime farmland by acquisition of agricultural easements.” Sierra Club argues removing the AMP from the General Plan would require “major revisions” under CEQA, such as a new or supplemental environmental impact report (EIR), and not just a 10-day review.

The city contends the addendum and recent feasibility study on the Ag Mitigation Policy were sufficient in meeting the requirements of CEQA. The addendum found the 2030 General Plan infeasible in its latest analysis, in part, because it drives up the cost of housing. City staff said the AMP fee could drive up the cost of a new single-family home by another $3,000 for a large lot development and $1,400 for an average house. But Sequoia Riverlands Trust argues that if you amortized this over a 30-year mortgage with a 3.5% interest rate, it amounts to $1.60 per month for a high-density home and $13.16 per month for a very low-density home.

By contrast, the value of homes in Visalia has skyrocketed in the past few years from around $200,000 to $300,000 due to surging demand and low inventory, but not due to ag mitigation fees. Visalia still enjoys among the lowest average single-family home price in the state.

Allies of this view include the Building Industry Association, which sees the ag mitigation program as the “forced purchase” of farmland and bad public policy.

One member of the Tulare County Farm Bureau expressed disdain for the approach suggesting “the best conservation strategies for keeping farmland protected is to let farmers farm. Private ownership of land will guide wise decisions about its use.”

The city now argues that “Entering into a binding agricultural conservation easement does not create new agricultural land to replace the agricultural land being converted to other uses. Instead, an agricultural conservation easement merely prevents the future conversion of the agricultural land subject to the easement. Because the easement does not offset the loss of agricultural land (in whole or in part), the easement does not reduce a project’s impact on agricultural land.” They point out that it is likely that only a “patchwork” of easements may be acquired.

Sequoia Riverlands Land Trust, which does easements all over Tulare County, counters that the city has already identified land between Tulare and Visalia as a location where easements “could make the greatest impact.” Funding from the sale of easements may benefit the property owner as an alternative to selling out to a developer, they say.

Judge David Mathias could halt new land permit approvals within Tier II, holding up new construction until the legal dispute is settled. Construction could have moved forward immediately if the ag mitigation program had been left in place and the city would have simply opened the next tier of land. If the judge rules in favor of a need for a new environmental study, that wait could be lengthy. The judge could also just toss out the lawsuit but the Sierra Club is likely to appeal. Any of the outcomes would likely result in more waiting for home builders.

If the judge does not grant an injunction, building activity would go on in Tier II while the case is being litigated.

Sierra Club battled in court over dairy policy with Tulare County for years regarding methane issues resulting in a major digester program that is cutting emissions to fight climate change. Many of the county’s dairies are now part of a California-backed program to sell their methane for renewable transportation fuel instead of letting the gas go airborne.

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