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CITY COUNCIL AGENDA ITEM NO. 18


Meeting Date: June 26, 2001

Subject/Title: Public Hearing for consideration of an Agricultural Enterprise Program

Submitted by: Mitch Oshinsky, Community Development Director
Winston Rhodes, Senior Planner

Approved by: Jon Elam, City Manager



RECOMMENDATION

The City Council Agricultural Sub-Committee, Planning Commission and staff recommend that Council take the following actions:

1. Accept the Agricultural Enterprise Program Committee Final Report and 

2. Introduce and waive the first reading of the proposed Agricultural Land Conservation Ordinance adding Brentwood Municipal Code: Chapter 17.730 the Agricultural Land Conservation Ordinance.

PREVIOUS ACTION 

In 1998 the City Council directed staff to initiate an Agricultural Enterprise Program (AEP), as a Consensus Priority project. On May 25, 1999, the City Council authorized a consultant contract with MIG, to help formulate the AEP. On July 27, 1999, Council appointed a nineteen person committee to work with Community Development Department staff and the consultant, to develop the AEP. On January 25, 2000, Council authorized staff to apply for a grant to help fund the consultant services. A $25,000 grant was received by the City, for that purpose. On November 14, 2000 the Council considered this matter and dead-locked 2 – 2 on adoption of the Agricultural Enterprise Program. On November 28, 2000 the Council reconsidered the Program and directed staff to bring the item back to Council for adoption by July 1, 2001 after continuing discussions with local farmers.

BACKGROUND 

Brentwood has a long and rich agricultural heritage, due to excellent soils and good climate. Agriculture has historically been the leading industry in the Brentwood area and has helped distinguish Brentwood from other Bay Area communities. Today agriculture continues to be an extremely important local and regional industry. According to the County Agricultural Commissioner, the Brentwood area produces crops and products that contribute approximately $303 million annually to the local and regional economy. The annual Corn Fest and u-pick operations are among Brentwood’s most important tourism attractions bringing thousands of visitors to the area. The Brentwood area represents over 50% of the County crop of apples, apricots, cherries, fresh tomatoes and pears. The area also contributes from 10 – 40% of the County’s alfalfa, beans, hay, nectarines, peaches, peppers, plums, processing tomatoes, sweet corn and walnuts. 

The State has recognized the importance of conserving the highest quality farmland and made $25 million available under the California Farmland Conservancy Program with $6.5 million budgeted during the past fiscal year. In addition, 60 private foundations with large funding assets are potentially poised to help fund the AEP.

A major component of the AEP is the Transferable Agricultural Credits (TAC) program, which conveys major potential economic benefits to farmers. TAC designates a pilot area in the south Agricultural Conservation area, where eligible property owners can get a 2 dwelling unit per acre development credit, in exchange for acceptance of a permanent conservation easement on their land. The credit can be transferred to Brentwood land designated for development, as a density bonus. For example, a property owner with 40 acres of agricultural land would get 80 credits. If those credits are applied to low density land in the City, the mid-range density of 3 units per acre, could go to 5 units per acre with the 2 unit density bonus. Both Pulte and Signature, which are large developers in Brentwood, have expressed great interest in this program, and stated the current value they would pay farmers for TAC units is $15,000 to $30,000 per TAC dwelling unit. Therefore, 80 credits would be worth between $1.2 to $2.4 million to the property owner.

GENERAL PLAN

The General Plan identifies agriculture as the primary land use within the eastern and southeastern portion of the Planning Area and the historic industry for the community. Preserving agriculture and the scenic qualities it provides is repeatedly cited as being important. This, coupled with increasing development pressures throughout the Bay Area, led to Brentwood’s desire to balance these two interests. Brentwood’s desire is to maintain the productivity of agricultural lands, protect farmers who wish to farm, while providing for the community’s growth and expansion. This is to be accomplished by protecting agricultural uses so that they do not prematurely develop. The General Plan Conservation Element includes specific policy language implemented through the AEP effort.

Goal 1 of the General Plan Conservation Element states: Preserve productive agricultural lands in Brentwood’s Planning Area.

Policy 1.1.4 – Secure Agricultural Lands: Establish a program which secures permanent agriculture on lands designated for agriculture in the City and/or County General Plan. The program should include land dedication and a transfer of development/in-lieu fee ordinance.

1.1.5 – Maintain Prime Agricultural Land south of the ECCID main channel and east of Sellers Ave. and direct urban growth to the west and north.

1.2.4 - Developers inside the City to be responsible for mitigating impacts upon agriculture.

The Council Agricultural Sub-Committee and staff have worked during the past five years on agricultural land protection strategies. In 1999 the City Council appointed an Agricultural Advisory Committee to provide recommendations for development of an AEP. The Agricultural Advisory Committee met 11 times between September 1999 and October 2000 to prepare AEP report and recommendations. The Committee voted 7 to 6 on October 11, 2000 to recommend approval of the AEP to the Planning Commission and Council. October 25, 2000 the Neighborhood Committee voted 8 to 2 to support the report and recommend approval of the AEP to Council. On October 30, 2000 the Planning Commission voted 4 to 1 to recommend that Council approve the AEP Ordinance with three changes discussed below. The Final Agricultural Committee Report, draft Ordinance, draft Resolution, the Planning Commission’s input, and the Council Agricultural Sub-Committee’s input are attached.

Since November 2000 Mayor McPoland, Councilmember Beckstrand and City staff have discussed the Agricultural Enterprise Program with local farmers; members of the County Board of Supervisors and County staff; representatives from other East Bay cities, State Senator Torlakson and State Department of Conservation staff. Local farmers have identified issues of concern and met with the Council Agriculture Sub-Committee on several occasions to modify program details. The State has been very encouraging about future funding opportunities for the Program if adopted. The County has been encouraging and has formed an Agricultural Advisory Task Force to work on some of the same issues addressed by the AEP.

DISCUSSION

The AEP Committee Report includes a summary of recommendations on pages 4-11, which were the result of lengthy discussions, reconsiderations and votes over the 11 Committee meetings. The AEP has three components: 1) farmland mitigation, 2) transferable agricultural credits, and 3) agricultural enterprise. 

The Planning Commission recommended Council approval of the Committee’s Final Report, with the changes to the Ordinance as follows.

· Replace references to the “Farm Bureau” with references to “local agricultural organizations” per the request of the Farm Bureau, which is neutral on the AEP. This change is reflected in recommendations 3.1, 3.2, 3.8, 3.9, 3.11, and 3.12 of the Committee Report.

· Eliminate term easements to ensure permanent rather than temporary agricultural land protection. It was pointed out that temporary farm assistance is already available through the Williamson Act’s property tax relief. It was also noted that voters would be less likely to support taxpayer funds for temporary rather than permanent farmland protection. In addition, it was mentioned that term easements would be less valuable and make it harder to obtain outside grants, because they do not offer permanent protection.

· Eliminate the AEP sunset clause if voters fail to support a ballot measure for taxpayer funding of the program. The Planning Commission did not want the program to be decided by an additional citizen tax ballot measure vote when the necessary funding appears available from mitigation fees, State and federal agencies and private foundations. 

After discussions with local farmers the Council Agricultural Sub-Committee now recommends approval of the AEP report and Ordinance with the following changes:

1. A mitigation ratio of 1:1 will be attempted for all private and public projects involving the conversion of productive agricultural land [Applies to Final Report Recommendations 1.4 and 1.7].

2. The rate of increase of the in lieu mitigation fee shall be capped at a fixed annual percentage. [Applies to Final Report Recommendation 1.7] 

3. Agricultural lands serving as mitigation areas or participating in the TAC program shall be a minimum of 40 contiguous acres in size [Applies to Final Report. Recommendation 1.8 and 2.1].

4. While permanent easements with fee title purchase as an available option is required to satisfy mitigation requirements or utilize the TAC program, term easements shall be eligible for funding consideration from non-city funding sources unless otherwise prohibited. [Applies to Final Report Recommendation 1.9]

5. The makeup of the new local land trust board of directors shall be a total of seven voting members with three members selected by the City and three selected by ECCID, and the seventh member selected by the other six members. All voting members shall reside in East Contra Costa County [Applies to Final Report Recommendation 1.12].

6. Expand the TAC sending area by approximately 160 acres to include additional agricultural land west of Walnut Boulevard and south of Marsh Creek in the vicinity of Kellogg Creek [Applies to Final Report Recommendation 2.1].

7. Allow the TAC program component to be changed by the new local land trust subject to City concurrence with the proposed change [Applies to Final Report Recommendation 2.1].

8. The City and new land trust board shall work with the County to ensure property tax assessments are decreased after participation in the TAC or comparable permanent agricultural mitigation transaction [Applies to Final Report Recommendation 2.3].

9. Allow a 75’ minimum buffer distance between the edge of an agricultural parcel and an ultimate urban property line [Applies to Final Report Recommendation 3.6].

10. Delete the Planning Commission Agricultural Enterprise Program Report changes in conflict with the changes mentioned above and approve the balance of the Planning Commission AEP report changes.

11. Conservation easements on mitigated agricultural lands shall not preclude utilization of established utility or infrastructure easements (e.g., water, sewer, power, etc.) on non-mitigated agricultural land.

Attachments:

Draft Agricultural Land Conservation Ordinance
Council Agricultural Sub-Committee AEP Report Changes 
Planning Commission AEP Report Changes
Agricultural Enterprise Program Committee Report 




CITY COUNCIL ORDINANCE NO. ___

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE BRENTWOOD AGRICULTURAL ENTERPRISE PROGRAM AND ADDING CHAPTER 17.730 TO THE BRENTWOOD MUNICIPAL CODE TO CONSERVE AGRICULTURAL LAND.

WHEREAS, agriculture is a historically and economically important component of the City of Brentwood; and 

WHEREAS, it is the City's stated goal in the Conservation/Open Space Element of the General Plan to "preserve productive agriculture lands in Brentwood's Planning Area;" and

WHEREAS, Policy 1.14 of the Conservation/Open Space Element of the General Plan calls for the establishment of a program which secures permanent agriculture on lands designated for agriculture in the City and/or County General Plan; and 

WHEREAS, Policy 1.1.5 of the Conservation/Open Space Element of the General Plan calls for the maintenance of prime agricultural lands south of the East Contra Costa Irrigation District Main Canal and east of Sellers Avenue and directing urban growth to the west and the north; and 

WHEREAS, Policy 1.2.4 of the Conservation/Open Space Element of the General Plan calls for the developers inside the City to be responsible for mitigating impacts upon nearby agriculture; and

WHEREAS, Policy 1.4.1 of the Conservation/Open Space Element of the General Plan identifies the use of a density transfer program as a mechanism to investigate for agricultural preservation; and

WHEREAS, Policy 2.3.1 of the Economic Development Element of the General Plan calls for the establishment of a program to promote and maintain prime agricultural lands and locations for continued agricultural use, or agriculture supportive industries; and 

WHEREAS, the City Council created an Agricultural Advisory Committee to recommend a program to protect Brentwood’s agricultural land and to enhance agriculture in the vicinity of Brentwood; and

WHEREAS, the Advisory Committee held eleven publicly noticed meetings and has recommended an Agricultural Enterprise Program that includes land conservation strategies requiring the adoption of an implementing ordinance; and 

WHEREAS, on October 25, 2000, the Brentwood Neighborhood Committee reviewed the draft Agricultural Enterprise Program and voted to support the report and recommend approval to the City Council; and

WHEREAS, on October 30, 2000, the Planning Commission conducted a duly noticed public hearing, considered public comments and passed Resolution 00-77 recommending approval of the proposed Agricultural Enterprise Program to the City Council; and

WHEREAS, this action has been reviewed per the California Environmental Quality Act (CEQA). Pursuant to Section 15061(a)(3) of CEQA this activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. In addition, pursuant to Sections 15168(c) and 15162 of the CEQA Guidelines, the project is within the scope of development evaluated in the 1993 Brentwood General Plan Program EIR. No substantial changes have occurred to the circumstances under which that EIR was certified and no new information, which was not known and could not have been known at the time that the EIR was certified as complete, has become available relating to the environmental effects of this project. Therefore, the Program EIR for the 1993 General Plan is adequate for the approval relating to the project; and

WHEREAS, a Notice of Public Hearing was legally advertised in the Ledger Dispatch on June 16, 2000, according to City policies and Government Code Section 65091; and

WHEREAS, the City Council held a public hearing on the proposed amendment on June 26, 2001, for the purpose of reviewing the Advisory Committee’s Final Report, the draft ordinance, and the Council Agricultural Sub-Committee, Planning Commission, Neighborhood Committee and staff recommendations; and

WHEREAS, after close of the public hearing, the City Council considered all public comments received both before and during the public hearing, the presentation by City staff, the staff report, the recommendations, and all other pertinent documents and associated actions regarding the proposed Agricultural Enterprise Program and ordinance; and 

WHEREAS, the City Council of the City of Brentwood makes the following finding per the Brentwood Municipal Code associated with this amendment:

This amendment is consistent with the General Plan and other applicable City plans, and is appropriate to the public interest, in that it will help implement several General Plan Policies by supporting the preservation of productive agricultural lands and the retention of the agricultural industry in the Brentwood vicinity which produces food, jobs, and a rural character which helps distinguish Brentwood from other communities within the San Francisco Bay Area region.

NOW, THEREFORE, the City Council of the City of Brentwood ordains as follows:

SECTION1. The Brentwood Agricultural Advisory Committee Agricultural Enterprise Program Final Report, October 11, 2000 as amended by the Council Agricultural Sub-Committee, Planning Commission, and attached as Exhibit “A” is hereby adopted.

SECTION 2. The foregoing recitals and staff report are found and determined to be true and correct. 

SECTION 3. Chapter 17.730 relating to Agricultural Land Conservation is hereby added to the Brentwood Municipal Code as follows:


Chapter 17.730

AGRICULTURAL LAND CONSERVATION

17.730.010 Purpose and Findings
17.730.020 Definitions
17.730.030 Agricultural Land Mitigation Requirements
17.730.040 Procedure For Establishment of Agricultural Credit
17.703.050 Eligible Lands To Satisfy Agricultural Land Mitigation Requirements
17.730.060 Requirements of Easements or Other Instruments 
17.730.070 Procedure For Transfer of Agricultural Credits
17.730.080 City of Brentwood Farmland Conservation Program Advisory 
Committee
17.730.090 Formation of Local Land Trust
17.730.100 Monitoring
17.730.110 Violations and Enforcement
17.730.120 Precedence


17.730.010 Purpose and Findings

The purpose of this chapter is to implement the agricultural enterprise land conservation policies contained in the Brentwood General Plan with a program designed to protect and conserve agricultural lands located within or adjacent to the Brentwood Planning Area or its approved Sphere of Influence. This includes mitigating the loss of productive agricultural lands converted for urban uses within the City by permanently protecting agricultural lands planned for agricultural use, by working with farmers who voluntarily wish to place conservation easements on their land with fair compensation for such easements, and permitting a transfer of agricultural credits (TAC) from “agricultural donor parcels” within the TAC target area to “receiver parcels.”

The City Council finds this chapter is necessary for the following reasons: (1) to benefit the local economy and provide jobs; (2) East Contra Costa County farmland is of highly productive quality; (3) the City is surrounded by productive farmland on the north, east and south sides; (4) the continuation of agricultural operations preserves the existing landscape, environmental and aesthetic resources of the area; (5) the Brentwood General Plan sets forth policies to preserve productive farmland, including the development of a program to secure permanent agriculture on lands designated for agriculture in the City and/or county General Plan; (6) California is losing farmland at a rapid rate; (7) loss of agricultural land is consistently determined to be a significant impact under the California Environmental Quality Act (CEQA) in development projects; (8) loss of farmland to development is irreparable and agriculture is an important component of the region's economy and rural community character; and (9) losing agricultural land will have a cumulatively negative impact on air quality, traffic, noise, public services demands, and aesthetics in the City and in the County of Contra Costa.

It is the policy of the City to work cooperatively with Contra Costa County to preserve agricultural land within or adjacent to the Brentwood Planning Area and its adopted Sphere of Influence, beyond that land deemed necessary for development. It is further the policy of the City to protect and conserve agricultural land in its vicinity, especially in its Agricultural Conservation Area and Contra Costa County Core Agricultural Area south and east of the City’s boundary. 

176.730.020 Definitions

“Transferable Agricultural Credit” means a potential transferable credit to construct dwelling unit(s) in a City residential zoning district, which can only be exercised when the agricultural credit has been transferred pursuant to the provisions of this section from a donor to a receiver parcel and all other legal requirements are fulfilled.

“Agricultural Donor Parcel” means a parcel of agricultural land from which agricultural credits are transferred

“Agricultural Enterprise Advisory Committee” means a committee appointed by the City Council to assist with the implementation of the City’s Agricultural Enterprise Program and evaluate the effect of City policies on local growers and agricultural land owners.

“Agricultural Land or Farmland” for the purposes of this chapter shall mean those land areas of the County specifically designated as Agricultural Core (AC) or Agricultural Lands (AL) as defined in the Contra Costa General Plan; those land areas near the City designated as Agricultural Conservation (AC) as defined in the Brentwood General Plan; and/or other lands upon which agricultural activities, uses, operations or facilities exist or could exist at the time of adoption of this ordinance that contain Class I, II, III or IV soils as defined by Natural Resource Conservation Service.

“Agricultural Mitigation Land” means agricultural land encumbered by a farmland deed restriction, a farmland conservation easement or such other conservation mechanism acceptable to the City.

“Agricultural Operation” means normal and customary farming and agricultural activities which may occur during any 24-hour period of the day. Normal and customary farming and agricultural activities include, but are not limited to, the cultivation and tillage of the soil, the production, irrigation, cultivation, growing, harvesting, and processing of any agricultural commodity for wholesale or retail markets, including viticulture, horticulture, the keeping and raising of livestock, fur bearing animals, fish or poultry, and any commercial agricultural practices performed as incident to or in conjunction with such activities including preparation for market, delivery to storage or to market, or to carriers for transportation to market.

“Farmland Conservation Easement” means an easement over agricultural land for the purpose of restricting its use to agriculture. The interest granted pursuant to a farmland conservation easement is an interest in land which is less than fee simple. Farmland conservation easements shall be permanent [unless specified as a Term Easement as defined within this section].

“Farmland Deed Restriction” means a recorded deed restriction, covenant or condition which precludes the use of the agricultural land subject to the restriction for any nonagricultural purposes, use, operation or activity. The deed restriction shall provide that the land subject to the restriction will permanently remain agricultural land unless specified as a Term Easement as defined in this section.

“Qualifying Entity” means a nonprofit public benefit 501(c)3 corporation operating in Contra Costa County for the purpose of conserving and protecting land in its natural, rural or agricultural condition. The following entities currently are qualifying entities: Contra Costa Land Trust, John Muir Heritage Land Trust and American Farmland Trust. Other entities may be approved by the City Council from time to time. 

“Receiver Parcel” means a residentially zoned parcel within the City’s jurisdiction to which agricultural credits are transferred.

17.730.030 Agricultural Land Mitigation Requirements

In order to mitigate and offset the loss of valuable farmland resources, the City shall require agricultural land mitigation by any applicant for a subdivision or any other discretionary land use entitlement which will permanently change agricultural land over one acre in size within the City’s jurisdiction to any nonagricultural use.

Agricultural land mitigation shall be satisfied by one of the following mechanisms:

(1) Granting a farmland conservation easement, a farmland deed restriction or other farmland conservation mechanism (including fee title purchase by the City or qualifying entity) to or for the benefit of the City and/or a qualifying entity approved by the City on lands deemed acceptable by the City. The mitigation shall be required for agricultural land that is permanently converted to an urban use, including any portion of the land used for park and recreation purposes, on a one to one land area ratio; or

(2) By payment of an in lieu fee based upon a formula for a one to one land area ratio. The fee shall be established by City Council resolution and shall be reviewed and adjusted periodically to ensure that the fee is adequate to offset the cost of purchasing farmland conservation easements on a one to one ratio. The fee shall be fixed for a 12 month period after enactment of this ordinance. Thereafter the fee may be adjusted annually but may not be increased by more than ten percent during any twelve month period. For non-residential projects, that the City Council determines are important for economic development purposes, some or all of the mitigation requirements of this chapter may be waived. 

The in lieu fee, paid to the City, shall be placed in a trust account and used solely for farmland mitigation purposes. The interest from funds in this account shall also be used for farmland protection purposes. A limited portion, not to exceed 5 percent of the fees collected, may be used by the City or City–approved qualifying entity for administrative costs associated with establishing, monitoring, and managing farmland conservation easements.

17.730.040 Procedure For Establishment of Transferable Agricultural Credits

Transferable agricultural credits are eligible to be allocated to the property owners of record of agricultural land within the approximately 2,160 acre portion of the established Contra Costa County Agricultural Core Area, in effect on the date of adoption of this ordinance, that is bounded by Marsh Creek on the west, the East Contra Costa Irrigation District Main Canal on the north, Sellers Avenue on the east, and Marsh Creek Road on the south except as noted in Exhibit 1 for approximately 160 acres south of Marsh Creek Road. This area consists of donor parcels and is identified in Exhibit 1 which is hereby attached and made part of this ordinance.

Transferable agricultural credits shall run with the land. Existing agricultural parcels in the subject area, and over an acre in size are eligible to transfer two credits for each acre of agricultural land which is placed in a permanent conservation easement. In the calculation of agricultural credits, a fraction which is 0.5 or larger shall be considered a full agricultural credit.

17.730.050 Eligible Lands To Satisfy Agricultural Land Mitigation Requirements

The following minimum criteria shall be met for a property to be eligible for placement in an agricultural conservation easement or satisfy agricultural land mitigation requirements identified within this chapter:

▪ The property shall have adequate water supply to support the historic agricultural use on the land. The water supply for the land shall be protected in the farmland conservation easement, the farmland deed restriction or other document evidencing the agricultural mitigation; or 

▪ The property is of adequate size, configuration and location to be viable for continued agricultural use. 

In addition, a property that meets any or all of the following criteria can be considered as agricultural mitigation land:

▪ The mitigation land is located along a roadway and contains unique visual values;

▪ The mitigation land is not strategically located for other economic development purposes;

▪ The mitigation land is contiguous with other areas sought for agricultural protection and comprise a minimum of 40 acres; and 

▪ The mitigation land provides open space and wildlife habitat values.

The lands to be conserved are to be located in the following areas: 

§ First priority will be given to the Brentwood Agricultural Conservation Area as defined on the Brentwood General Plan Land Use Map. 

§ Lands to be conserved may also be located in the following areas: the Contra Costa County Agricultural Core lands as defined on the Contra Costa County General Plan Urban Limit Line Map. 

§ Agricultural land within the City limits that possess unique agricultural, visual, historic or other important values may also be considered. 

Neither of the two circumstances below may exist for a property to be eligible to serve as agricultural mitigation land.

(1) The property is not subject to any easements or physical conditions that legally or practicably precludes modification of the property's land use to a nonagricultural use.

(2) Land previously encumbered by a conservation easement of any nature or kind is not eligible to qualify as agricultural mitigation land.

17.730.060 Requirements of Easements or Other Instruments

To encumber agricultural mitigation land, all owners of the land shall execute the instrument. The instrument shall be in recordable form and contain an accurate legal description setting forth the description of the land. The instrument shall prohibit any activity that substantially impairs or diminishes the agricultural productivity of the land. The instrument shall protect the existing water rights and retain them with the agricultural mitigation land.

The City or a qualifying entity approved by the City shall pay the costs of administering, monitoring and enforcing the instrument. The City shall be a named beneficiary under any instrument conveying the interest in the agricultural mitigation land to a qualifying entity, unless waived by the City Council.

Interests in agricultural mitigation land shall be held in trust by a qualifying entity and/or the City in perpetuity.

If judicial proceedings find that the public interests described in this section of this chapter can no longer reasonably be fulfilled as to an interest acquired, the interest in the agricultural mitigation land may be extinguished through sale and the proceeds shall be used to acquire interests in other agricultural mitigation land in Contra Costa County, as approved by the City and provided in this chapter.

If any qualifying entity owning an interest in agricultural mitigation land ceases to exist, the duty to hold, administer, monitor and enforce the interest shall pass to the City. 

17.730.070 Procedure For Transfer of Agricultural Credits

Agricultural credits may be transferred to any residential zone within the City. Approval by the City must be based on findings that the transfer is consistent with the General Plan and provides for the permanent conservation of the donor parcel as farmland. The transfer of agricultural credits shall be authorized as part of a development agreement and shall be subject to all City policies, regulations and codes, including the requirement to obtain development entitlements for the receiver parcel. A development agreement application shall include both the donor and receiver parcel.

When agricultural credits are transferred from a donor site, the corresponding acreage generating the transferred credits shall be maintained as farmland subject to conditions specified in the farmland conservation easement deed restriction. Partial transfer of allocated credits for donor parcels may be allowed and any remaining credit allocation balance shall be monitored until all credits are transferred.

The number of agricultural credits which may be transferred to a receiver parcel shall not exceed the maximum density range specified in the General Plan.

The City Council may adopt rules and procedures it considers necessary to implement these provisions to facilitate the transfer of allowable development. Such rules and procedures shall be adopted by resolution.

17.730.080 City of Brentwood Agricultural Enterprise Program Advisory Committee

The City Council should consider creating an Agricultural Enterprise Advisory Committee to advise the Council on how City policy affects local growers and landowners. 

17.730.090 Formation of Local Land Trust 

A new local land trust should be formed pursuant to Sections 1.12, 1.13, 1.14, 1.15 and any other relevant Sections of the Agricultural Enterprise Program Adopted Final Report, dated June 26, 2001.

17.730.100 Monitoring

Annually, beginning one year after the adoption of this article, the Community Development Director shall provide to the City Council or Advisory Committee once established an annual report delineating the activities undertaken pursuant to the requirements of this chapter and an assessment of these activities. The report shall list and report on the status of all lands and easements acquired under this chapter.

A status report shall be filed annually for each conservation easement held by the City or qualifying entity. The status report will indicate the percent of the land under the easement, any changes in the use of the land during the year, a set of ground photos and/or aerial photos documenting the property, and any violations, enforcement actions or other events during the year.

17.730.110 Violations and Enforcement

Any person or entity who violates any provision of this chapter shall be deemed guilty of an infraction and, upon conviction thereof, shall be punished by a fine not exceeding the maximum prescribed by law. In addition, any person or entity who violates any provision this article shall be liable to the transferee of the property for actual damages. In an action to enforce such liability or fine, the prevailing party shall be awarded reasonable attorneys' fees. 

17.730.120 Precedence

This chapter shall take precedence over all ordinances or parts of ordinances or resolutions or parts of resolutions in conflict herewith. 

SECTION 4. This Ordinance shall take effect and be in force thirty (30) days following its adoption and, prior to the expiration of fifteen (15) days after its adoption, it shall be published once with the names of the council members voting for and against it in a newspaper of general circulation, available in the City of Brentwood.

SECTION 5. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, the holding shall not affect the validity or enforceability of the remaining provisions, and the council declares that it would have adopted each provision of this ordinance irrespective of the validity of any other provision. 

SECTION 6. Any judicial review of this Ordinance shall be by writ of mandate under Code of Civil Procedure 1085. Any action or proceeding seeking to attack, review, set aside, void or annul this ordinance shall be commenced within 90 days after the adoption of this Ordinance.

SECTION 7. This Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the ordinance in accordance with that law. Further, the City Clerk is directed to cause Section 3 of this Ordinance to be entered in the Brentwood Municipal Code.

SECTION 8. In accordance with Government Code Section 65863.5, upon the effective date of this Ordinance, a copy shall be delivered to the County Assessor.

THIS ORDINANCE was introduced with first reading waived at a regular meeting of the Brentwood City Council on the 26th day of June, 2001, and adopted at a regular meeting of the Brentwood City Council the 10th day of July,2001 by the following vote: 


CITY COUNCIL
AGRICULTURAL SUB-COMMITTEE RECOMMENDED
AGRICULTURAL ENTERPRISE PROGRAM
REPORT CHANGES
MAY 7, 2001


Page 6
1.4 In addition, all public projects that are constructed on former agricultural land should pay into the mitigation fund and attempt to reach a protection ratio on an acre-for-acre basis to demonstrate equitable treatment under the Interim Ordinance. The fee should be set at the same level for all projects.

Page 6 - 7
1.7 The City’s Interim Ordinance should be based on strive for a mitigation ratio of 1:1 (acre for acre) for every developed acre, a fee equal to the costs associated with protecting one acre of conserved farmland is required. A developer should have several methods for achieving this required mitigation including offering an agricultural parcel with a conservation easement directly (provided it meets the City’s established criteria) or paying the appropriate fee. In lieu of an actual agricultural easement, the fee should be initially set at $5,000 per gross acre, reflecting a range of $4,000-6,000 per gross acre for conservation easements. This is not necessarily the price that the City (or land trust) would pay for any particular easement. Each easement purchase would be based on proper land appraisals and negotiations with a willing seller. The fee should be evaluated periodically and modified to reflect changes in land values, transaction costs or other variables.

The Committee felt that the The $5,000 fee should be kept static during the lifetime of the interim ordinance. If there is a long-term ordinance, the fee should be reviewed annually, and adjusted based on the East County Land Trust recommended changes. The Committee believes that the fee should not increase significantly, and therefore, recommends placing a cap on the maximum percentage rate of future allowed increases. 

Page 7 
1.8 The City should retain full authority to accept or reject any offered parcel as part of a development mitigation. A 40 acre minimum mitigation area comprised of one or more contiguous parcels should be required.

Page 7
1.9 The program should rely primarily on permanent conservation easements, although fee title purchase could be an available option. There was considerable debate over the use of temporary or “term” easements instead of or in addition to permanent easements. Assuming the Interim Ordinance with the citizen vote provision, the Committee agreed to recommend permanent easements for lands secured through the developer mitigation program. Term easements could supplement the basic program. The Committee agreed to recommend that outside non-mitigation additional funding should be eligible for purchase of term easements unless otherwise prohibited.

Page 7
1.12 A new local land trust (“East Contra Costa Agricultural Land Trust”) should be formed to negotiate, monitor, hold and manage easements and land. The land trust board should consist of three members appointed by the City, three members appointed by the East Contra Costa Irrigation District (representing agricultural interests), and three members one member selected by the first six. All The six members appointed by the City and ECCID must reside in East Contra County. (The three additional members may reside outside the area.) Other at large, non-voting members could be added to provide additional expertise at the discretion of the board. The concept is an independent body focused on local agricultural and open space conservation efforts. The board should fairly represent farm and urban interests. The land trust offers the maximum flexibility and potential to seek outside funds and political independence. The board should have the expertise to coordinate successfully with agricultural, funding, regulatory and conservation partners.

Page 8
2.1 The City should further study and, if feasible, adopt a program that allows for transferable agricultural credits in a selected portion of the Brentwood Planning Area. The “pilot” area that should be initially-selected for the program is approximately 2,000 2,160 acres located southeast of the City and is characterized by relatively small, County agricultural parcels at the southern entrance to Brentwood.

Under the program, the City would designate this area as a “credit sending area.” The parcels in the sending area would be designated as having a credit “value” of 2 units per acre. Sending areas should be a minimum of 40 contiguous acres. Developable parcels identified within Brentwood’s General Plan designated for residential use would become credit “receiving areas;” that is, they would be eligible for an increase in residential density (i.e. density bonus) if the developer could transfer in the credits from one or several parcels in the agricultural sending area. The density bonus might increase the urban development density above the current mid-range density to a higher density, but never exceeding the top end of the density established under the General Plan and zoning. To transfer credits, a property owner/developer would be required to purchase or place a permanent conservation easement on the agricultural “sending” parcel(s). The Land Trust Board with concurrence of the City could recommend modifications over time.

Page 9
2.3 The City and Land Trust Board should work with the Contra Costa County Assessor and the Board of Supervisors to ensure that a transfer of agricultural credits is not a taxable event that triggers an increase in property tax assessment but instead results in a reassessment at a decreased rate after participating in the TAC or comparable permanent agricultural mitigation transaction.

Page 9 –10
3.6 The City should adopt a clear and consistent agricultural buffer policy to separate urban and agricultural uses and reduce nuisance opportunities. The details of this policy should be developed as part of its General Plan Update and implemented during the development applications and subdivision review. Recommended parameters include the following:

§ Width: A width of 75 –150 feet between the edge of the agricultural parcel to the ultimate urban property line. 
§ Allowable uses: At least half of the buffer should be free from public use to provide a separation between uses and to address growers’ concerns about trespass, theft and liability. Where feasible, the remainder of the buffer should be used for infrastructure, recreation, natural area or other beneficial use. 
§ Land dedication: Buffers should be provided on existing public land (such as a road or drainage basin), or from the developer’s land. Buffers should be created around land planned (and zoned) for future agricultural use. 


Farmland Mitigation Program


Page 29 Paragraph 2
The Committee felt that the $5,000 fee should be kept static during the lifetime of the interim ordinance. If there is a long-term ordinance, the fee should be reviewed annually, and adjusted based on the East County Land Trust recommended changes. The Committee believes that the fee should not increase significantly, and therefore, recommends placing a cap on the maximum percentage rate of future allowed increases. 

Page 29 –30
1.9 The Committee recommends the primary use of conservation easements, although fee title purchase should be an available option. The Committee had a divided opinion on recommending permanent versus term easements. While term easements provide greater flexibility to the landowner (since he/she can develop at some future time), term easements do not ensure long-term protection of the agricultural land base and may not be the best use of limited mitigation funds. Term easements also do not provide tax-benefits to the grantor, nor do they qualify for state or federal funds (such as the California Farmland Protection Program or the Federal Farmland Protection Program). For these reasons, the majority of the Committee agreed to recommend permanent easements as the primary mechanism based on development impact fees. The Committee agreed to recommend that other non-mitigation funding sources could be used for purchase of term easements unless otherwise prohibited. 


Transferable Agricultural Credits (TAC) Program

Page 40
Expand TAC Sending Area to reflect the inclusion of approximately 160 acres of agricultural land east of Walnut Boulevard and South of Marsh Creek in the vicinity of Kellogg Creek.

Page 41 – 42
2.1 The City should further study and, if feasible, adopt a program that allows for transferable agricultural credits in a selected portion of the Brentwood Planning Area. The “pilot” area that should be initially-selected for the program is approximately 2,000 2,160 acres located southeast of the City and is characterized by relatively small, County agricultural parcels at the southern entrance to Brentwood.

Under the program, the City would designate this area as a “credit sending area.” The parcels in the sending area would be designated as having a credit “value” of 2 units per acre. Sending areas should be a minimum of 40 contiguous acres. Developable parcels identified within Brentwood’s General Plan designated for residential use would become credit “receiving areas;” that is, they would be eligible for an increase in residential density (i.e. density bonus) if the developer could transfer in the credits from one or several parcels in the agricultural sending area. The density bonus might increase the urban development density above the current mid-range density to a higher density, but never exceeding the top end of the density established under the General Plan and zoning. To transfer credits, a property owner/developer would be required to purchase or place a permanent conservation easement on the agricultural “sending” parcel(s). The Land Trust Board with concurrence of the City could recommend modifications over time.

Page 42
2.3 The City and Land Trust Board should work with the Contra Costa County Assessor and the Board of Supervisors to ensure that a transfer of agricultural credits is not a taxable event that triggers an increase in property tax assessment but instead results in a reassessment at a decreased rate after participating in the TAC or comparable permanent agricultural mitigation transaction.

Agricultural Enterprise Program

Page 44 - 45
In brief, this discussion of agricultural support policies is based on two parameters. 

(1) While important to support agriculture, these programs cannot and should not replace an active and strategic conservation easement acquisition program.

(2) These programs are not intended to support the return or development of large-scale, production agriculture in the Brentwood area. Instead, and these programs seek to support the development of high-value, niche-market agriculture – an approach that many agree is a strategic path for local growers.

Page 50 -51
3.6 The City should adopt a clear and consistent agricultural buffer policy to separate urban and agricultural uses and reduce nuisance opportunities. The details of this policy should be developed as part of its General Plan Update and implemented during the development applications and subdivision review. Recommended parameters include the following:

§ Width: A width of 75-150 feet between the edge of the agricultural parcel to the ultimate urban property line. 
§ Allowable uses: At least half of the buffer should be free from public use to provide a separation between uses and to address growers’ concerns about trespass, theft and liability. Where feasible, the remainder of the buffer should be used for infrastructure, recreation, natural area or other beneficial use. 
§ Land dedication: Buffers should be provided on existing public land (such as a road or drainage basin), or from the developer’s land. Buffers should be created around land planned (and zoned) for future agricultural use. 


Additional Recommendations

Delete the Planning Commission report changes in conflict with the changes mentioned above.

Conservation easements on mitigated agricultural lands shall not preclude utilization of established utility or infrastructure easements (e.g., water, sewer, power, etc.) on non-mitigated agricultural land.


SUMMARY OF COUNCIL AG. SUB-COMMITTEE 
AGRICULTURAL ENTERPRISE PROGRAM 
RECOMMENDED CHANGES
OF 5-07-01



The Council Sub-Committee recommended:

1. A mitigation ratio of 1:1 will be attempted for all private and public projects involving the conversion of productive agricultural land [Applies to Final Report Recommendations 1.4 and 1.7].

2. The rate of increase of the in lieu mitigation fee should be capped. [Applies to Final Report Recommendation 1.7] 

3. Agricultural lands serving as mitigation areas or participating in the TAC program should be a minimum of 40 contiguous acres in size [Applies to Final Report. Recommendation 1.8 and 2.1].

4. While permanent easements with fee title purchase as an available option is required to satisfy mitigation requirements or utilize the TAC program, term easements should be eligible for funding consideration from non-city funding sources unless otherwise prohibited. [Applies to Final Report Recommendation 1.9]

5. The makeup of the new local land trust board of directors shall be a total of seven voting members with three members selected by the City and three selected by ECCID, and the seventh member selected by the other six members. All voting members shall reside in East Contra Costa County [Applies to Final Report Recommendation 1.12].

6. Expand the TAC sending area by approximately 160 acres to include additional agricultural land west of Walnut Boulevard and south of Marsh Creek in the vicinity of Kellogg Creek [Applies to Final Report Recommendation 2.1].

7. Allow the TAC program component to be changed by the new local land trust subject to City concurrence with the proposed change [Applies to Final Report Recommendation 2.1].

8. The City and new land trust board work with the County to ensure property tax assessments are decreased after participation in the TAC or comparable permanent agricultural mitigation transaction [Applies to Final Report Recommendation 2.3].

9. Allow a 75’ minimum buffer distance between the edge of an agricultural parcel and an ultimate urban property line [Applies to Final Report Recommendation 3.6]
10. Delete the Planning Commission Agricultural Enterprise Program Report changes in conflict with the changes mentioned above.

11. Conservation easements on mitigated agricultural lands shall not preclude utilization of established utility or infrastructure easements (e.g., water, sewer, power, etc.) on non-mitigated agricultural land.


PLANNING COMMISSION RECOMMENDED
AGRICULTURAL ENTERPRISE PROGRAM
REPORT CHANGES
OCTOBER 30, 2000

Page 5
1.3 The following criteria should be used for determining which types of development projects are required to provide farmland mitigation. The Interim Ordinance should apply to all proposed development projects involving the conversion of farmland within the City that have not received full discretionary approval from the City, as well as approved projects that have been conditioned to mitigate for the loss of agricultural land. Residential and non-residential projects should be subject to the same mitigation requirements.

Page 6
1.4 In addition, all public projects that are constructed on former agricultural land should pay into the mitigation fund on an acre-for-acre basis to demonstrate equitable treatment under the Interim Ordinance. The fee should be set at the same level for all projects.

1.5 All development subject to the Interim Ordinance should be required to mitigate at the same level regardless of soil type and quality. 

1.7 The City’s Interim Ordinance should be based on a mitigation ratio of 1:1 (acre for acre) for every developed acre, a fee equal to the costs associated with protecting one acre of conserved farmland is required. A developer should have several methods for achieving this required mitigation including offering an agricultural parcel with a conservation easement directly (provided it meets the City’s established criteria) or paying the appropriate fee. In lieu of an actual agricultural easement, the fee should be initially set at $5,000 per gross acre, reflecting a range of $4,000-6,000 per gross acre for conservation easements. This is not necessarily the price that the City (or land trust) would pay for any particular easement. Each easement purchase would be based on proper land appraisals and negotiations with a willing seller. The fee should be evaluated periodically and modified to reflect changes in land values, transaction costs or other variables.

The Committee felt that the The $5,000 fee should be kept static during the lifetime of the interim ordinance. If there is a long-term ordinance, the fee should be reviewed annually, and adjusted based on the East County Land Trust recommended changes. The Committee believes that the fee should not increase significantly, and therefore, recommends placing a cap on future allowed increases. 

Page 7
1.9 The program should rely primarily on permanent conservation easements, although fee title purchase could be an available option. There was considerable debate over the use of temporary or “term” easements instead of or in addition to permanent easements. Assuming the Interim Ordinance with the citizen vote provision, the Committee agreed to recommend permanent easements for lands secured through the developer mitigation program. Term easements could supplement the basic program. The Committee agreed to recommend that outside additional funding should be available for purchase of term easements.

1.10 The City of Brentwood Community Development Department should place an Interim Farmland Mitigation Ordinance before the Planning Commission and City Council. Once adopted, the Department would apply the mitigation requirement as it would any other development fee or project condition. The Ordinance and the mitigation requirement will “sunset” if the citizens are opposed to the concept or may be codified permanently if the citizens are in favor of the concept.

Page 9
3.0 AGRICULTURAL ENTERPRISE PROGRAM

3.1 The City should work with and support the County, the County Agricultural Task Force, the Farm Bureau local agricultural organizations and others in their efforts to create a Farmland Securities Zone (FSZ) program in east County. This program (the so-called “Super Williamson Act”) can offer additional property tax relief to active farms with 20-year restrictions on land conversion. 

3.2 The City, in cooperation with the Farm Bureau local agricultural organizations and others, should facilitate seminars in estate tax benefits for interested growers and/or their financial, legal and tax advisors. Such training is available from the California Oak Foundation and other appropriate conservation organizations. 

Page 10
3.8 The City should continue to actively consult with the Farm Bureau local agricultural organizations, growers, U.C. Cooperative Extension, the County Agricultural Commissioner and other agricultural interests on projects that may impact agricultural operations in the Brentwood area. 

3.9 The City, in consultation with the Farm Bureau local agricultural organizations and other agricultural representatives, should work with the County to analyze options to revise the County zoning code to better support agriculture and agricultural tourism activities in the Brentwood area. 

3.11 The City should work with the County in consultation with farm worker organizations, the Farm Bureau, other local agricultural organizations and affordable housing organizations to develop plans to increase the supply of quality farm worker housing as part of a broader low-income/affordable housing development strategy in existing urban areas. Innovative plans for on-site farm accommodations might also be considered.

3.12 The City should work with the Farm Bureau, local agricultural organizations County, Chamber of Commerce and area growers to encourage the development of agricultural retail businesses by promoting local agricultural 


Farmland Mitigation Program

Page 25 Paragraph 1
The Committee grappled with the fundamental mitigation concept for some time. Ultimately, the Committee supported the concept, but only if the existing residents of Brentwood also demonstrated support for farmland and open space preservation, and willingness to contribute some type of funding. Therefore, the recommendation that the Committee is putting forth is for an interim a program to address the development applications occurring now, but a citizen vote should be taken to gauge support for the concept. The interim program would be removed if the citizens did not support the concept. The interim mitigation program would become permanent if the voters were in support. Voter support was defined by the Committee as conceptual support plus some willingness to fund future agricultural preservation activities. The Committee also believed that the program would be greatly strengthened if the County also developed a requirement to mitigate for loss of agricultural land. 

Page 28
1.7 The City’s Interim Ordinance should be based on a mitigation ratio of 1:1 (acre for acre) for every developed acre, a fee equal to the costs associated with protecting one acre of conserved farmland is required. A developer should have several methods for achieving this required mitigation including offering an agricultural parcel with a conservation easement directly (provided it meets the City’s established criteria) or paying the appropriate fee. In lieu of an actual agricultural easement, the fee should be initially set at $5,000 per gross acre, reflecting a range of $4,000-6,000 per gross acre for conservation easements. This is not necessarily the price that the City (or land trust) would pay for any particular easement. Each easement purchase would be based on proper land appraisals and negotiations with a willing seller. The fee should be evaluated periodically and modified to reflect changes in land values, transaction costs or other variables.

Page 29 Paragraph 2
The Committee felt that the $5,000 fee should be kept static during the lifetime of the interim ordinance. If there is a long-term ordinance, the fee should be reviewed annually, and adjusted based on the East County Land Trust recommended changes. The Committee believes that the fee should not increase significantly, and therefore, recommends placing a cap on future allowed increases. 

Page 29
1.9 The Committee recommends the primary use of conservation easements, although fee title purchase should be an available option. The Committee had a divided opinion on recommending permanent versus term easements. While term easements provide greater flexibility to the landowner (since he/she can develop at some future time), term easements do not ensure long-term protection of the agricultural land base and may not be the best use of limited mitigation funds. Term easements also do not provide tax-benefits to the grantor, nor do they qualify for state or federal funds (such as the California Farmland Protection Program or the Federal Farmland Protection Program). For these reasons, the majority of the Committee agreed to recommend permanent easements as the primary mechanism based on development impact fees. The Committee agreed to recommend that other funding sources would be available to be used for purchase of term easements. 

Agricultural Enterprise Program

Page 46
3.1 The City should work with and support the County, the County Agricultural Task Force, the Farm Bureau local agricultural organizations and others in their efforts to create a Farmland Securities Zone (FSZ) program in east County. This program (the so-called “Super Williamson Act”) can offer additional property tax relief to active farms with 20-year restrictions on land conversion. 

Page 47
3.2 The City, in cooperation with the Farm Bureau local agricultural organizations and others, should facilitate seminars in estate tax benefits for interested growers and/or their financial, legal and tax advisors. Such training is available from the California Oak Foundation and other appropriate conservation organizations. 

Page 52
3.8 The Committee recommends that the City continue to actively consult with local agricultural organizations, growers, U.C. Cooperative Extension, the County Agricultural Commissioner and other agricultural interests on projects that may impact agricultural operations in the Brentwood area. The Committee also recommends that the City create project conditions of approval that support continued agricultural uses within City Limits.

Page 53
3.9 The Committee recommends that the City, in consultation with the Farm Bureau local agricultural organizations and other agricultural representatives, work with the County to analyze options to revise the County zoning code to better support agricultural tourism activities in the Brentwood area. In most cases, this would involve revising the zoning code to better implement the agricultural support goals and policies in the General Plan. Options to consider in this analysis might include ways to streamline the land use permit process for agricultural tourism facilities such as farm stands, agriculturally-themed bed and breakfasts and wine-tasting rooms in the Agricultural Lands areas. Any revisions to the County zoning code should include provisions to ensure that such facilities are developed in support of maintaining a viable agricultural sector as opposed to promoting the sub-division of agricultural parcels, reducing minimum parcel sizes, or converting to non-agricultural uses. Traffic safety concerns near existing and new agricultural enterprises must also be addressed. 

Page 55
3.11 The Committee recommends that the City work with the County in consultation with farm worker organizations, other local agricultural organizations, and affordable housing organizations to develop plans to increase the supply of quality farm worker housing as part of a broader low-income/affordable housing strategy in existing urban areas. Innovative plans for on-site farm accommodations might also be considered. 

Page 58
3.12 The Committee recommends that the City work with the Farm Bureau local agricultural organizations, County, Chamber of Commerce and area growers to encourage the development of agricultural retail businesses by promoting local agricultural events and other direct marketing programs by advertising them on the City’s web site, through other regional media, and through the promotion and distribution of the Harvest Time brochure and map. 
The Committee recommends that the City work with the Chamber of Commerce and the Farm Bureau to market the unique historic and scenic values associated with Brentwood agriculture in regional and statewide tourism promotion venues.


SUMMARY OF PLANNING COMMISSION 
FINAL AGRICULTURAL ENTERPRISE REPORT 
RECOMMENDED CHANGES
OF 10-30-00



Planning Commission recommended:

1. The implementing ordinance for the program not be an interim ordinance with provisions requiring “sunset” if citizens are opposed to the program. [Applies to Final Report Recommendations 1.3–1.5, 1.7, 1.9, and 1.10].

2. The in lieu mitigation fee of $5,000 per acre not be kept static during life of the ordinance. [Applies to Final Report Recommendation 1.7] 

3. The program rely on permanent easements with fee title purchase as an available option but not use of term easements. [Applies to Final Report Recommendation 1.9]

4. Deletion of specific reference to Farm Bureau at the request of the Farm Bureau. [Applies to Final Report Recommendation 3.1, 3.2, 3.8, 3.9, 3.11, and 3.12]


 

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