BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Patricia Wiggins, Chair
BILL NO: AB 494 HEARING: 7/8/09
AUTHOR: Caballero FISCAL: No
VERSION: 7/1/09 CONSULTANT: Detwiler
AGRICULTURAL LAND AND FARMWORKER HOUSING
Background and Existing Law
The Planning and Zoning Law requires every city and county
to adopt a general plan that is internally consistent.
Major local land use decisions must be consistent with
general plans: subdivisions, zoning, public works, and use
permits. The Subdivision Map Act spells out the procedures
that cities and counties must follow when dividing property
into parcels for sale, lease, or financing. Leases of
agricultural land for agricultural purposes are exempt from
the Map Act. The Williamson Act allows landowners to sign
contracts with cities and counties, enforceably restricting
their land to agriculture, open space, and compatible uses.
The Act declares that agricultural labor housing
facilities are a compatible use and can't be excluded from
agricultural preserves.
Local officials must deny proposed subdivisions if the
resulting parcels will be too small to sustain their
agricultural use or result in residential uses that are not
incidental to the property's commercial agricultural use.
This ban applies to land that is subject to a Williamson
Act contract, an open space easement, an agricultural
conservation easement, or a conservation easement. The
minimum parcel sizes needed to sustain agricultural uses
are 40 acres for prime agricultural land and 10 acres for
nonprime land.
However, land in a Williamson Act agricultural preserve can
be subdivided into smaller parcels when five conditions
exist (AB 1505, Ducheny, 1999):
The parcel to be sold or leased must be no more
than five acres.
The parcel will be sold or leased to a nonprofit
organization or a public agency.
The parcel to be sold or leased must be subject to
a deed restriction limiting its use to agricultural
laborer housing for at least 30 years. When the
AB 494 -- 7/1/09 -- Page 2
parcel is no longer used for housing, it must be
merged with the other property.
There must be a written agreement to jointly
operate the properties for the duration of the
Williamson Act contract.
The parcel to be sold or leased must be located
either :
o Within a city, or
o In an unincorporated territory or sphere
of influence that is contiguous to existing
residential, commercial, or industrial uses.
Changes in agricultural practices have changed farm labor
practices. While there is an increasing need for permanent
housing for farmworkers, the need for housing migrant
laborers continues. The State Department of Housing and
Community Development's Office of Migrant Services runs
1,865 housing units in 25 migrant centers in 15 counties,
serving about 9,500 migrant farmworkers and their families.
The State's Farmworker Grant Program offers 50% matching
grants to build housing for low-income, year-round
farmworkers. Since 1977 the grant program has assisted
9,200 units. Proposition 1C (2006) contained an additional
$135 million for this program.
When nonprofit groups want to build farmworker housing,
they first have to find willing landowners and then get
local officials' approvals. Because local land use
regulations can make it hard to site new housing for
farmworkers, housing advocates want legislators to help.
Proposed Law
Assembly Bill 494 exempts from the Subdivision Map Act the
lease of agricultural land to nonprofit organizations for
the purpose of operating an agricultural labor housing
project if the property meets three conditions:
The property is not more than five acres.
The lease is for at least 30 years.
The lease is signed before January 1, 2020.
AB 494 prohibits a city or county from denying an
application for a use permit for the development of
agricultural labor housing that meets the above
qualifications unless the city or county makes two written
AB 494 -- 7/1/09 -- Page 3
findings, based on substantial evidence in the record:
That the development would have a specific, adverse
impact on the public health or safety, and
That there is no feasible method to satisfactorily
mitigate or avoid the specific, adverse impact.
The bill requires these findings to include the basis for
rejecting the potential feasible alternatives of preventing
the adverse impact.
Comments
1. Gimme shelter . Farmworkers --- migrant and permanent
--- endure some of California's worst housing conditions.
Especially in rural areas, families and single workers need
safe, decent, and affordable housing. Even when public
agencies and nonprofit groups find the money to build
farmworker housing, they still need to persuade willing
landowners and get local permits. The 1999 Ducheny bill
made it easier to subdivide Williamson Act land for
farmworker housing, but local subdivision ordinances and
use permits still get in the way. AB 494 helps those who
want to build more farmworker housing by exempting leases
from the Map Act and prohibiting local officials from
denying use permits.
2. More state intervention . AB 494 is another attempt by
legislators to override local elected officials' control
over land uses. Unlike the state laws that require general
plans and land use decisions to fit local conditions and
circumstances, the bill sidesteps local control over
farmworker housing projects. This intervention will create
conflicts between housing advocates and landowners, similar
to what happened after the Legislature mandated density
bonuses and second-unit projects. While there is a clear
need for more farmworker housing, there is no evidence that
local officials abuse their discretion by refusing to issue
use permits. Legislators shouldn't use statewide laws to
micromanage land use decisions that are better left to
local ordinances.
3. Vertical consistency . Planners, builders, and their
legal advisors call it the principle of vertical
consistency --- local land use decisions must be consistent
with the goals, policies, and objectives found in city and
AB 494 -- 7/1/09 -- Page 4
county general plans. More than 25 years ago, the courts
applied the vertical consistency principle to use permits.
In the name of promoting needed farmworker housing, AB 494
radically departs from a key principle of California land
use law. If legislators write an exemption for farmworker
housing, how will future legislators react when other
industries ask for similar favored treatment? If city
councils and county supervisors can't deny use permits for
farmworker housing that don't follow their general plans,
why not also exempt airports, factories, or rock quarries?
4. Lead us not into temptation . A "variance" is a local
permit that allows a landowner to build something that's
not otherwise permitted by the local zoning ordinance.
Granting a zoning variance is a constitutional safety value
that allows local officials to avoid imposing a hardship on
a landowner who bumps up against regulations that don't fit
the parcel's size, shape, topography, location, or
surroundings. But the Planning and Zoning Law prohibits
local officials from granting "use variances" ---
permitting a use not authorized by the zoning ordinance.
By prohibiting cities and counties from denying use permits
for farmworker housing, AB 494 may require them to grant
illegal use variances. Suppose an applicant wants to build
farmworker housing on property where the zoning ordinance
doesn't allow any residential uses. Under current law,
local officials couldn't approve that permit and they can't
grant a use variance, but AB 494 prohibits the permit's
denial. The Committee may wish to consider avoiding this
problem by deleting Section 1 of the bill.
5. So long . Section 2 of AB 494 exempts leases for
farmworker housing from the Map Act, provided the leases
are signed before January 1, 2020 --- in effect, a ten-year
sunset clause. But there is no similar limit on the bill's
prohibition on approving use permits --- that's permanent.
If legislators want to let landowners and farmworker
housing advocates experiment with subdivision exemptions,
the Committee may wish to consider inserting a similar
sunset clause on the use permit provision. When creating
sunset clauses, the Committee often asks for a seven-year
deadline which provides for five years of experimentation,
a year for evaluation, and a year for legislative response.
The Committee may wish to consider sunsetting these
provisions on January 1, 2017.
AB 494 -- 7/1/09 -- Page 5
6. Zoning ordinances . AB 494 focuses on "leases of
agricultural land" without looking at the underlying zoning
designation. Land that's currently farmed could be zoned
for future heavy industrial uses that are not compatible
with housing. Land zoned for permanent open space with no
housing might allow agricultural uses. The Committee may
wish to consider an amendment that refers to "leases of
agriculturally zoned land."
7. Why cities ? Because charter cities have constitutional
authority over ordinances concerning their municipal
affairs and because zoning decisions are made by ordinance,
charter cities are generally exempt from the statutory
requirement that their zoning decisions be consistent with
their general plans. Therefore, AB 494's amendments to the
state laws on zoning ordinances don't apply to the
approximately 110 charter cities. Further, few of the
approximately 370 general law cities have much
agriculturally zoned land. The Committee may wish to
consider an amendment that limits the bill just to
counties' unincorporated territory.
Assembly Actions
Assembly Local Government Committee: 6-0
Assembly Agriculture Committee: 5-1
Assembly Floor: 63-11
Support and Opposition (7/2/09)
Support : California Rural Legal Assistance Foundation,
California Building Industry Association, California
Catholic Conference, California Coalition for Rural
Housing, Community Housing Improvement Systems and Planning
Association, Community Housing Improvement Program,
Grower-Shipper Association of Central California, Housing
California, Mercy Housing, Nonprofit Housing Association of
Northern California, Self-Help Enterprises, Western Center
on Law & Poverty, Western Growers.
Opposition : American Planning Association-California
Chapter, California Farm Bureau Federation, California
State Association of Counties, Regional Council of Rural
Counties, Counties of Santa Barbara and Tulare.
AB 494 -- 7/1/09 -- Page 6