BILL ANALYSIS
AB 1505
Page 1
Date of Hearing: April 19, 1999
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Howard Wayne, Chair
AB 1505 (Ducheny) - As Amended: April 8, 1999
SUBJECT : Farmworker Housing: CEQA and Williamson Act
exemptions.
SUMMARY : Exempts certain farmworker housing projects from local
zoning laws and environmental review, and allows cancellation of
Williamson Act contracts if the landowner agrees to build
farmworker housing.
EXISTING LAW :
2)Under the California Environmental Quality Act (CEQA) (Pub.
Res. Code secs. 21000 et seq.):
a) Provides a systematic process for evaluating the
environmental impacts of a "discretionary project"
undertaken or approved by a public agency. A project is
discretionary if its approval requires the exercise of
judgment or deliberation on the part of the agency. CEQA
provides a number of statutory exemptions from its
provisions; in addition, the Secretary of the Resources
Agency is authorized to identify categories of projects
that are exempt because they are determined not to have a
significant effect on the environment.
b) Prescribes specific requirements for evaluating the
impacts of projects that are not exempt. Specifically, the
lead agency (the agency with primary responsibility for
approving the project) first prepares an initial study to
determine if the project may have a significant effect on
the environment. If the initial study shows the project's
effects will not be significant, the lead agency prepares a
negative declaration. If, however, the initial study shows
the project's effects may be significant, then the agency
must prepare an environmental impact report (EIR).
Information developed during preparation of the EIR is used
to set conditions on the project. An agency may only
approve the project if all identified significant effects
have been mitigated, unless the agency makes a finding of
overriding considerations. The CEQA process also serves to
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provide notice to the public concerning the project.
c) Exempts from CEQA projects to construct residential
housing for agricultural employees that are affordable to
low and moderate income households under all of the
following conditions (Pub. Res. Code sec. 21080.10(c)):
i) The developer must provide sufficient legal
commitments to ensure the availability of the housing to
low income households for 15 years.
ii) The development, if proposed for an urban area, must
be adjacent to already developed land on at least two
sides and be limited to 45 or fewer units or for 45 or
fewer employees. If it is proposed for a non-urbanized
area, the development must be located on property zoned
for general agricultural use, and must be limited to 20
or fewer units or employees.
iii) The development must be consistent with the
jurisdiction's general plan and applicable zoning
ordinance, unless the zoning ordinance has not yet been
updated to reflect changes in the general plan.
iv) The development site must be five acres or smaller,
or two acres or smaller in an area with a population
density of 1,000 or more people per square mile.
v) The development:
(1) Can be adequately served by utilities.
(2) Has no value as a wildlife habitat.
(3) Does not involve demolition of a structure
listed, or eligible for listing, in the California
Register of Historic Resources.
d) Overrides the exemption for agricultural worker housing
and subjects a project to CEQA if the lead agency makes a
determination that there is a reasonable possibility that
the project would have a significant effect on the
environment due to unusual circumstances or due to
cumulative impacts of similar projects.
2)Under the California Land Conservation Act of 1965 (Williamson
Act) (Govt. Code secs. 51200 et seq.):
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a) Authorizes owners of property within areas designated as
agricultural preserves to enter into contracts with local
governments to restrict the uses of the land to
agriculture, open space, or other compatible uses in
exchange for lower property tax assessments. Williamson
Act contracts must be executed for a minimum of 10 years;
each contract is automatically renewed or extended for an
additional year on each anniversary date of the contract,
so that the contract term stays at 10 years.
b) Allows termination of Williamson Act contracts under
limited circumstances. First, either the landowner or the
city may cease the automatic yearly extension, so that the
contract will terminate 10 years from the last extension.
Second, the landowner may immediately cancel the contract
if cancellation is consistent with the purposes of the
Williamson Act or in the public interest; however, the
landowner is (with only limited exceptions) required to pay
a cancellation fee. Third, contracts may become void or be
terminated if the land is acquired under eminent domain or
is annexed to a city.
c) Contains specific provisions addressing farmworker
housing:
i) First, statutorially declares that agricultural
laborer housing is a "compatible use" within any
agricultural preserve, unless a local government, after
public hearing, makes a finding to the contrary.
Accordingly, farmworker housing can be developed on
property under a Williamson Act contract.
ii) Second, provides that a landowner may petition for
cancellation of a Williamson Act contract if a local
jurisdiction determines that agricultural laborer housing
is not a compatible use on any lands under contract. To
obtain a cancellation on this basis, the landowner must
certify that the property will not be used for other than
farmworker housing for ten years. The local jurisdiction
must approve the cancellation and must make specific
findings, including that the project will not result in
discontiguous development in agricultural areas.
Existing law provides that if a contract is cancelled for
this purpose, the cancellation fees and taxes that would
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otherwise be required to be paid will be waived.
However, a lien for those fees and taxes must be recorded
on the property to ensure that the property remains in
use for farmworker housing. The lien is released after
ten years, if the property is not converted to other
uses. If use on the property is changed, however, then
fees, taxes and interest must be paid to the local
jurisdiction (Govt. Code sec. 51282.3).
2)Under the California Constitution (article XI, section 7)
authorizes a county or city to "make and enforce within its
limits all local, police, sanitary, and other ordinances and
regulations not in conflict with general laws."
2)Under the state's Planning and Zoning Law (Govt. Code secs.
65000 et seq.), requires cities and counties to adopt general
plans with seven mandated elements (land use, housing,
circulation, etc.). Cities and counties are authorized to
adopt zoning ordinances regulating: the use of buildings,
structures, and land for industry, business, residences, and
other purposes; the location, height and size of buildings;
the size and uses of lots; the intensity of land uses; and
building set backs. Zoning ordinances must be consistent with
general plans, with certain exceptions.
THIS BILL :
2)Expands the CEQA exemption for development and use of
residential housing for agricultural employees as follows:
a) Increases the number of units that can be developed
without complying with the CEQA process from 45 to 100 in
urbanized areas and from 20 to 50 in nonurbanized areas.
b) Removes the requirement that, to qualify for a CEQA
exemption, a project must be consistent with the zoning
designation adopted by the local jurisdiction.
c) Eliminates the requirement that projects must be served
by utilities; instead, adequate "onsite services" must be
provided.
d) Exempts projects that have some value as a wildlife
habitat, as long as that value is not "significant." In
addition, if a project is eligible for listing as a
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historic site, but has not been listed, the exemption will
apply.
e) Eliminates the exemption "override", that is, the
requirement that CEQA apply notwithstanding the exemption
if cumulative effects of similar projects would have a
significant effect on the environment.
2)Provides that the CEQA exemption does not apply if adequate
sites to meet the local jurisdiction's need for farmworker
housing have not been identified in the jurisdiction's housing
element.
2)Enacts a new Williamson Act contract cancellation option for
farmworker housing by allowing a landowner to transfer title
to up to 5 acres of land under a Williamson Act contract to a
nonprofit organization or a municipal corporation, if the
organization agrees to use the land to construct or
rehabilitate "agricultural laborer housing." Upon transfer,
the local jurisdiction would be required to cancel the
contract and no cancellation fee would be payable by the
landowner.
2)Prohibits a city, county, or other local government agency
from disapproving a project subject to the CEQA exemption on
the basis that the project is inconsistent with the existing
zoning designation.
FISCAL EFFECT : Likely fiscal effects on local jurisdictions
from loss of Williamson Act cancellation fees if projects are
later converted to uses other than farmworker housing.
COMMENTS :
1) Background
This bill is the result of the author's long-standing concern
over the provision of adequate farmworker housing. According to
information provided by the supporters of this measure, there is
a critical need for more farmworker housing - a needs assessment
conducted by the University of California estimated that 250,000
farmworkers and their families had inadequate housing.
According to the supporters, the average farmworker earns $7,500
per year.
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The author of this measure has convened a task force of farmers,
lending institutions and housing advocates to examine the
problem. This group has recommended the exemptions from the
Williamson Act, zoning law, and the California Environmental
Quality Act (CEQA) contained in this bill as possible solutions.
For the reasons set forth below, however, it is unclear whether
the provisions of this bill will actually accomplish the
author's intent. It is also unclear whether any specific
projects have ever been denied or discouraged because of the
Williamson Act and CEQA provisions the bill seeks to amend.
2) CEQA Exemption
The supporters of this measure have proposed broadening the
existing CEQA exemption for farmworker housing as a way to deter
opponents of housing projects that may be tempted to use
environmental concerns to mask their true racial or "NIMBY" (not
in my backyard) motives. While this is the intent of this
portion of the bill, it is unclear whether this bill as drafted
will accomplish this intent.
The CEQA exemption for farmworker housing in existing law (Pub.
Res. Code sec. 21080.10(c)) was enacted in 1994 in AB 3373
(Bustamante) (Chapter 1058, Statutes of 1994). Also that same
year, SB 749 (Thompson) (Chapter 1230, Statutes of 1994) enacted
a parallel exemption for urban low-income housing projects. The
committee analyses of these earlier measures indicate that they
were proposed for the very same reasons that this bill is
proposed: to deter litigation over low-income housing. This
goal, however, was apparently not achieved, as the supporters of
the earlier measures are now requesting a further and broader
exemption. No information has been provided to suggest that
this bill will be any more successful.
Although the supporters of this measure have provided articles
relating to certain affordable housing controversies, it is not
clear whether the changes proposed in this bill would have made
a difference or even would have applied to these controversies.
In fact, a number of the articles show that the controversy was
about other issues: a housing element of a general plan or a
locally-imposed moratorium, for examples. Some of the projects
involved more acreage and more units than would be allowed under
this exemption.
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The urban low-income housing exemption initially enacted in the
Thompson bill was amended last year to increase the size of an
exempt project from 45 to 100 units (AB 175, Torlakson). The
proponents state that one of the purposes of this bill is to
conform the farmworker exemption to the urban housing exemption.
However, this bill goes much further than the Torlakson bill
and removes many of the existing conditions included in both the
farmworker and the urban low income housing exemptions.
Specifically, this bill:
Deletes the requirement that the project be consistent with
local zoning.
Exempts a project from all environmental review even when
cumulative impacts of successive projects may have a
significant effect on the environment.
Removes the requirement that the project be served by
utilities, and instead substitutes a broader, undefined term,
"other onsite services."
Requires that the site's value as a wildlife habitat be
significant before environmental review is required.
Allows the exemption to be used when a site is eligible for
listing as a historic site, but has not yet been listed.
Several issues are raised by these changes. For example, this
bill will provide an exemption from environmental review for
affordable housing for farmworkers that is broader and sets a
different standard than that governing all other housing
developments and even other affordable housing developments.
While the intent is to facilitate the building of housing
projects, the application of these provisions may suggest that
some state residents are determined to be undeserving of
protections afforded other residents. The purpose of the
environmental review process is, in part, to obtain information
so that potential hazards can be identified and mitigated (such
as hazards caused by nearby pesticide spraying, potential
flooding, dangerous traffic intersections, noise, etc.). Not
doing this review may actually facilitate the building of
inferior housing. Often, the environmental review process can
be helpful to project applicants by leading to project
improvements and changes that may remove, or at least blunt,
neighborhood opposition and the resulting delay.
In addition, creating pockets of multiple-unit housing in the
midst of agricultural land not served by utilities may poorly
serve the people it is intended to help. It may be more
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difficult for residents to obtain access to other services such
as fire protection, schools, and even grocery stores.
2) Williamson Act Provisions
Under existing law, an owner of land in a Williamson Act
contract may donate property to a nonprofit or other entity for
farmworker housing and, the farmworker housing is deemed a
compatible use. Cancellation of the Williamson Act contract is
not required, unless the city or county has determined that
housing is not compatible in that particular setting. If a
non-compatibility determination has been made, then a contract
may be cancelled if the required findings can be made and if a
lien is imposed to insure that cancellation fees are paid if the
land is converted to other uses. This bill does not change
these provisions.
Instead, this bill adds a new provision that allows smaller
parcels of up to 5 acres to be donated. Existing law prohibits
the subdivision of land in a Williamson Act contract into
parcels of less than 10 acres if the land is prime agricultural
land, or 40 acres if it is non-prime (see section 66474.4 of the
Government Code). These restrictions are imposed to keep
agricultural land in economically viable units. In addition,
the bill allows Williamson Act contracts to be cancelled without
making the findings or paying the cancellation fee required by
existing law. Williamson Act contracts allow significant tax
advantages for landowners, justified by the public benefit
gained from preservation of agricultural land. Existing law
(both statutory and case law) does not allow cancellations as a
matter of course. Rather, specific findings related to the
purpose of the contract must be made; for example, that
cancellation is not likely to result in the removal of adjacent
lands from agricultural use, or will not result in discontiguous
patterns of urban development. Further, according to
information provided by the Farm Bureau, the courts have found
that cancellation should be justified for the program's tax
relief benefits to pass constitutional muster. The cancellation
fee is intended to recapture some of the public subsidies that
keep the private land in open space.
Although existing law allows cancellation fees to be waived,
this is only possible when the landowner demonstrates that he or
she has actually built farmworker housing on the site and
maintained the site in that use for at least ten years. This
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bill, however, removes the restrictions that currently exist to
ensure that the property removed from the Williamson Act remains
in farmworker housing. The result may be counterproductive to
the intent of this bill. A non-profit organization or municipal
corporation (these terms are undefined) need only "agree" to use
the land for housing to obtain an automatic cancellation without
payment of fees. There is no enforcement mechanism to ensure
that the housing gets built, no requirement that the land be
dedicated to use as housing for a specified amount of time, no
limits on the location or size of the projects that may be
built, and no definition of what qualifies as eligible
"agriculture laborer housing". Further, this bill allows
cancellation of Williamson Act contracts even when the local
jurisdiction has determined that farmworker housing is a
compatible use and can be built there without cancellation.
4) Planning and Zoning Law
This bill will prohibit a local jurisdiction from disapproving a
project that falls within the CEQA exemption on the basis that
the project does not comply with the jurisidiction's zoning
ordinance. Generally, zoning ordinances are used by cities and
counties as part of their police power to protect the public
welfare. These ordinances regulate the use of buildings,
structures and land between different uses, including the
location, height, lot sizes, and bulk. Zoning is the primary
tool cities and counties use to implement their general plans.
This bill is opposed by the League of California Cities, in
part, because it preempts local jurisdictions' land use planning
authority.
Because zoning ordinances also generally undergo environmental
review, non-compliance with the zoning ordinance as well as CEQA
may mean that the project will receive no environmental review
at all. Again, this bill may be counterproductive if it allows
housing to be built next to incompatible or harmful land uses.
Although the zoning preemption provisions of this bill are
within the purview of the Assembly Local Government Committee,
the bill has not been referred there.
5) Premature?
In the Assembly Housing Committee hearing on this bill, the
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author and proponents expressed a willingness to work to resolve
the problems with this bill, and to enact sufficient protections
to ensure that the bill does not invite or lead to abuse of
these exemptions. What these protections will be is, at this
point, undetermined. The committee may wish to consider whether
the bill, in its present form, is premature.
REGISTERED SUPPORT / OPPOSITION :
Support
Agricultural Council of California
California Catholic Conference
California Manufactured Housing Institute
California Rural Legal Assistance Foundation
Western Center on Law and Poverty
Western Growers Association
Opposition
California Farm Bureau Federation
League of California Cities
Sierra Club California
Analysis Prepared by : Sally Magnani Knox / NAT. RES. / (916)
319-2092