Hewson Shepherd

Hewson Shepherd

Court ruling might have valley agriculture implications

Ron McNicoll

A decision in a lawsuit between an environmental group and the City of Oakley appears to strengthen efforts to curb city development sprawl into certain agricultural areas.

It may even have implications for enabling cities to require developers to pay into a fund that would bring about such agricultural improvements as irrigation districts. Such an arrangement could be similar to the kinds of park fees or in-lieu housing fees that developers pay instead of building parks or moderate-priced housing themselves.

Developers in South Livermore already support agriculture through an arrangement with the city that swaps ability to develop with paying for open space easements on agricultural property.

The decision in Contra Costa Superior Court by Judge Barry Baskin on Oct. 1 may go further. It may enable establishment of a framework where cities could perhaps either offer or require that developers mitigate taking of agriculturally zoned lands by acquiring agricultural land elsewhere, with perpetual easements. Then, too, maybe the land might be improved with irrigation, to upgrade the quality of farming.

Water for agriculture has been an issue in the Valley raised by the Agricultural Water Task Force, a branch of the Tri-Valley Business Council. The task force met for several years in the early part of the decade to identify where water could be brought in to support grapes and other crops on land not being tilled now.

The conclusion was that some areas could support agriculture. However, the stumbling block was financing the water infrastructure.

The judge’s decision in the Oakley could also be a spur to the Tri-Valley Conservancy and the Partnership for Land Conservation and Stewardship. The TVC puts open space lands under easements. The Partnership acts as a broker to put landowners in touch with developers who need mitigation through easements.

Baskin’s ruling said that the City of Oakley failed to satisfy California Environmental Quality Act (CEQA) requirements about showing enough mitigation alternatives to the taking of land zoned for agriculture.

Christina Wong, a field representative for Greenbelt Alliance, said that the decision is important not only for Oakley, but for all Bay Area cities with edge agriculture. One of the implications is that cities can take “take low-grade farmland, and make it high grade.” Wong said that concept is in the judge’s ruling. However, there are no details about how the ag land would be upgraded.


Bryan Montgomery, city manager of Oakley, said that in his own opinion, the judge’s decision seems to underwrite “the notion that a developer has to mitigate. That’s why a lot of eyes are on this decision. It seems to go beyond previous CEQA decisions (about what should be in EIRs).”

“This type of ruling could require future mitigation. It is certainly more far-reaching than we anticipated,” said Montgomery.

The judge’s ruling applies to any agriculturally zoned land, even if it is within urban growth limits, said Montgomery.

In Montgomery’s opinion the court “seems to be saying that fees collected for habitat conservation plans cannot be used for acquisition of easements as mitigation for agricultural lands. We need to clarify that legal point. Habitat conservation plans are for open space and habitat preservation. The Greenbelt Alliances argument was that it’s not the same as agricultural land.”

Montgomery emphasized that his views are only his interpretation of what happened.

Valley sources asked for comment on Tuesday said they were not aware of the decision.

One caveat about the ruling came from Terry Huff, head of the Natural Resource Conservation District in Livermore. He said that there are different grades of agricultural land, and different rules about them, depending on whether the federal government or the state is classifying the agricultural lands. As the judge’s decision goes forward, it will be important to see just what kind of land is being addressed, even among different categories of prime agricultural land, he added.


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