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Home My WebLink About; Agricultural Advisory Committee (1981); Program Report; 1981-01-12.- CITY OF CARLSBAD Agricultural Advisory Committee January 12, 1981 Discussion items: Alternative Agricultural Preservation Techniques The following provides a range of agricultural preservation techniques for preliminary discussion purposes. 1. Transfer of Development Rights . Purchase of development. rights from designated preserva- tion areas, and sale of development credits to recipient parcels (proposed in Toups LCP) 2. Planned Unit Development ,I . Utilization of existing Carlsbad Planned Community Zone to protect agricultural lands. Could be applied to large single holdings or multiple ownership area. This would allow for all density on a given parcel to be clustered on lands suitable for development, while allowing the preservat2on of agricultural lands. 3. Phased. Development Scheme . Development of a program designating lands of significint agricultural value, allowing certain portions of the agricultural lands to be phased out of production at five year intervals, with total phase-out of developable lands occurring in twenty to twenty-five years. Program might include development of criteria for determining conversion of agricultural lands. . END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS 7 c .. MEMORANDUM DATE : January 12, 1981 TO : Agricultural Advisory Committee FROM: City Attorney SUBJECT: Transfer of Development Rights The attached memorandum from the Committee and Joyce Crosthwaite, of the Planning Department, seems to request some advice in addition to the memorandum which we sent to the City Council and the Planning Commission on July 9, 1980 regarding transfer of devel.opment rights. With the variety of TDR programs proposed nationwide, that request is well taken, especially since the California law on the subject is not yet certain. The validity of TDR programs in California is still questionable. Because answering the three specific questions asked by the Committee would not provide a full and complete discussion of transfer development rights, We have begun a more detailed analysis of the issues. Unfortunately, it is impossible to separdte practical and policy issues from strictly "legal" concerns when discussing transfer of development rights theories and programs. Because 'i complete analysis of transfer of development rights program must necessarily include a discussion of the underlying assumptions upon which such a program is based, it is impossible to respond within the short period of time indicated in your request.for advice. Because of the importance of this issue we desire to provide the Committee with a complete analysis of the transfer of development rights problem, but we will be unable to prepare a response for the meeting scheduled for January 12, 1981. While a report will be forthcoming as soon as possible, if you would like a member of our office to attend one of the Agricultural Advisory Committee meetings to discuss this-issue in detail, please let us know. /"' \ &CENT F. /BIONDQ, I JR, CidAttorn I City Attorney # DSH/mla Attachment il cc: James Hagaman,. Planning Director . END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS MEMORANDUM DATE : December 30, 1980 To: Vincent Biondo, City Attorney FROM : Agricultural Advisory Joyce Crosthwaite ~ SUBJECT: Transfer of Development Rights .. At the December 29th meeting of the Agricultural Advisory Committee Lefty Anear distributed the attached memorandum. The Committee requested clarification on the following: 1) Is the TDR program as proposed by PRC Toups illegal? 2) If it is illegal, what statutory or case law applies? 3) If it is not illegal, what enabling legislation would be necessary to implement. the program. The Committee wished to emphasize that.they are not requesting advice on the practical implementation problems of such a program. They are only requesting a legal opinion on the use of TDRs. JC: jt 12/30/80 .Note: The next committee meeting is scheduled’ for January 5th. Subsequent meetings are scheduled for January 8th and 12th. 4 3 END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS MEMORANDUM DATE : March 3, 1981 TO : City Manager and Department Head FROM : Agricultural Advisory Committee SUBJECT: AGRICULTURE AND THE LCP Attached is the finalized report by the Agricultural Advisory Committee on the Local Coastal Plan. It is scheduled for the City Council meeting on March 10th. JC: jt 3/2/81 . END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS ? 9 DEVELOPMENTAL . SERVICES 0 Assistant City Manager . . (714)438-5596 0 Building Department (714) 4384525 0 Engineering Department 0 Housing & Redevelopment Department (714) 438-5541 (714) 436-5811 0 Plannlng Department (714) 436-5591 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 DATE : March 2, 1981 TO : Mayor and City Council FROM : Agricultural Advisory Committee SUBJECT: AGRICULTURAL AND THE LOCAL COASTAL PLAN The Agricultural Advisory Committee is pleased to transmit their report on the Local Coastal Plan. The Committee has . been meeting weekly since the beginning of January and has formulated their objections to the plan PRC Toups has pro- posed. The report also contains the concept of an alter- native agricultural program which the Committee believes could be successful. The Committee will be at the meeting on March 10th to present the report and to answer any questions the Council might have. PETER MACKAUF Chairman Enclosure .4- .I END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS MEMORANDUM DATE : March 10, 1981 TO : Mayor and City Council FROM : Agricultural Advisory Committee SUBJECT: AGRICULTURE AND THE LOCAL COASTAL PLAN The Agricultural Advisory Committee was directed by the City Council to investigate the status of agriculture in Carlsbad. Their first task was to review and to comment on the proposed Local Coastal Plan. Summary . Any agricultural policy proposed must be city-wide. It cannot be limited to the coastal zone and still be effective. The concept of agricultural land as a resource and the concept of continued agricultural production must be clearly separated in any policy. The retention of agricultural lands must include production. Therefore the policy adopted must be tied to economics. It must recognize the fragile nature of the agricultural economy. It must also guarantee a fair and equitable compensation to the owner based on current market prices. Land recommended for agricultural use must have suitable soils. The Williamson Act definition of prime agricultural land is no longer appropriate for defining agricultural .land. The Williamson Act was originally designed as a voluntary program to give farmers tax relief. Using the criterion of the Williamson Act to define agricultural land (i.e., if land has produced $200 in gross income or has been in production 3 out of 5 years) is no longer valid due to changing tax situations and to the special nature of farming in Carlsbad. Using those criterion has stopped much farming in the coastal zone. The Committee believes that a definition of agricultural land for Carlsbad should be based on soil classifications and on climate. The city should do everything it can to encourage farming and to promote a favorable atmosphere for its continuance. . SPECIFIC OBJECTIONS TO THE LCP 1. THE-CONCEPT OF TRANSFER OF DEVELOPMENT RIGHTS (TDR) IS TOO NEW AND CONTROVERSIAL TO ASSESS ITS POTENTIAL TO BE EFFECTIVE. 2. 3. A program.based on the use of TDR'S might not be effective if .agriculture were no longer economically viable. The administrative mechanism for TDR's might not prove feasible., There are questions of the legal- ity of TDR'S which must also be solved. THE BASIC PREMISE OF THE LCP IS THAT THE AGRICULTURAL ECONOMY IS HEALTHY; HOWEVER, CURRENT FACTS SUGGEST THAT FARMING IS ECONOMICALLY FRAGILE. The steep rise in water and labor costs are severe determinants to a healthy agricultural economy. The markets for San Diego County products have shrunk; the products have lost.their off-season advantage, For these reasons any agricultural preservation program needs a mechanism to frequently review current cir- cumstances and status. .. THE LCP PLAN DOES NOT RECOMMEND LANDS THAT ARE AVAILABLE OR HAVE SUITABLE SOILS FOR PRESERVATION. a. The bulk of lands recommended for preservation south of Palomar Airport are marginal due to steep slopes, high erosion potential, aggravation and :increase of sedimentation in lagoons, and a lack of access , b. The lands west of the first coastal ridge are .preferred for preservation because of their soil and flatter terrain. Those lands have better .yields and are more economically feasible. 4. 5. 6, A.VIAI3LE AGRICULTURAL PLAN SHOULD INCLUDE ALL OF CARLSBAD'S AGRICULTURAL LAND AND NOT JUST THE COASTAL ZONE. COMPENSATION FOR LAND OWNERS. a. Purchasing lands from farmers at less than market price weakens the farming industry by.not encour- aging farmers to continue. THE LCP FAILS TO PROVIDE INCENTIVES FOR LAND OWNERS TO LEASE LAND. 80% of the local farm land is,leased; therefore, any effective agricultural preservation program should pro- vide incentives for land owners to lease land or, mini- mally, to remove any barriers for leasing. -2- 7. THE LCP DOES NOT RECOGNIZE THE ABILITY OF SAN DIEGO COUNTY AGRICULTURE TO CO-EXIST WITH DEVELOPMENT. Local agriculture is compatible with existing coastal property development. Agriculture does not present undue hardships to neighbors because of local agri- cultural practices, such as hand spraying. .. ALTERNATIVES The committee members recommended several possible alterna- tives to the PRC Toups Plan. It was suggested that if city permanently rezones the land as agricultural then the city should buy the land. This would provide fair compensation to the owner and would allow the city to ensure permanent agricultural production. It was also suggested that if the land is limited to agri- culture the city should pay the owner's property taxes and should pay the owner 12% of the market price annually as a holding rent. Another possibility was to allow development on portions of agricultural land and to zone the remainder as open space or agriculture. Those owners who develop their land in this manner would receive a density bonus. It was also stated that agricultural land is a resource and should be preserved as such. This'could be accomplished through a program of purchasing development rights or through clustering dwelling units. A final alternative was to propose nothing and to refuse to implement the Local Coastal Plan. The committee discussed all the possible solutions and decided to recommend the following alternative to the Local Coastal Plan. It is only an alternative in concept; the details for implementing it will be worked out later. RECOMMENDED ALTERNATIVE The agricultural policy favored by the committee would include the following: 1. A RIGHT-TO-FARM ORDINANCE A farm operation, having been in operation for at least a year and not creating a nuisance when it began and not being operated.negligently or improperly, shall not become a nuisance due to changing local conditions alone. .- 3- 2 . BUFFERS Buffers would be the responsibility of lands developing around agriculture, not the responsibility of current farming operations. CC&R's should also include this. A buffer could be defined as a wall, physical distance, or fences . c 3. CONTINUED PRIORITY OF WATER-RATES AND SUPPLY TO AGRI- CULTURE . 4. A PREFERRED PRIORITY FOR AGRICULTURE FOR ANY RECLAIMED WATER. Staff is currently researching regulations concerning the use of reclaimed water for agriculture. 5. ENDORSEMENT OF POLICY 64 OF THE SAN DIEGUITO LCP. The Coastal Commission staff proposed the following policy for impacted agriculture. . The committee en- dorses it on lands with suitable soils.and with less than 100 contiguous acres which do not have to be under the same ownership. The policy states: '. Encourage continued agriculture, but allow conversion . Detailed conversion criteria to be developed, considering when renewed use - not feasible.* the 'following: 1) encroaching development; surrounding densities 2) impacts of conversion on other agricultural lands 3) diseased soil and/or poor drainage 4) occurence of deteriorating/depreciated structures 5) .profitability of operation declining in relation to prior years, uncertainty concerning reversal of trend . 6. CLUSTERING OF DWELLING UNITS ON AGRICULTURAL LAND WITH SUITABLE SOILS AND WITH 100 CONTIGUOUS ACRES OR MORE. The density allowed by the General Plan and Zoning Ordinance could be developed at one time on a portion of the property (the remainder would.be left as agriculture or open space) or the property could be developed on phases over a number of years with agriculture continuing on the undeveloped portions. Participation in the pro- gram would be voluntary and could be accomplished through a Planned Unit Development (PUD) Zone. . 7. FAIR MARKET VALUE COMPENSATION TO OWNERS. Any'agricultural preservation 'plan must include this item, if the land is totally restricted to agriculture. This isnecessary because the money from a fair market price constitutes the capital against which owners can borrow . * The committee believes economics are the major reason renewed use is not feasible. 8. 9. 10 11. 12. 13. ENCOURAGEMENT OF AGRICULTURAL LEASING ON LANDS SLATED FOR DEVELOPMENT. Leasing of lands could be made a condition of approval for tentative maps. The leasing would continue until grading began. SUPPORT FOR AGRICULTURAL POWER RATES IN OFF-PEAK PERIODS. AN ANNUAL REVIEW AND REPORT TO THE CITY COUNCIL ON THE ECONOMICS OF FARMING IN CARLSBAD. This report would inform the Council and educate the public. It would be prepared by a committee whose makeup would be similar to the current Agricultural .Advisory Committee. It' would meet only long enough each year to prepare the report. SUPPORT FOR TAX INCENTIVES FOR AGRICULTURAL LANDS THROUGH THE STATE AND COUNTY, A timetable for development should be established and should emphasize development on those lands least suitable for agriculture. SUPPORT FOR CARLSBAD'S CURRENT LAND USE DESIGNATION. The Committee believes Carlsbad's current land use plan is adequate and a new agricultural designation need not be developed. COASTAL ACT AND AGRICULTURE -Section 30241 of the Coastal Act states that "The maximum amount of prime agricultural land shall be maintained in agricultural production to assure the protection of the areas' agricultural economy ..." The Agricultural Advisory Committee believes that the dead- liest blow to agricultural production is mandatory agricultural preservation. The amount of land in Carlsbad removed from production due to Coastal Commission policies is proof. The agricultural economy is, at best, fragile; mandating agri- cultural preservation will destroy what remains. The land presreved will be in open space not in agriculture. . However, if agricultural preservation is a political reality the owners' must c__ be compensated at a fair market price. -5- The committee also has'grave doubts about the definition of prime agricultural lands. According to the USDA soil survey, Carlsbad has no prime soils.. The definition of prime agricultural End is based,upon the Williamson Act, and is no longer accurate or useful. The Coastal Act also states that conflicts with urban Lreas shall be minimized through all of the following: a. "...stable boundaries separating urban and rural areas . . . I' The committee believes that local agricultural practices diminish the need for buffers, However, the responsibility would be protected through a right-to-farm ordinance. ' for buffers would rest with development. The farms b. Il... by limiting conversions...to the periphery of urban areas ... and to lands where the viability of existing agricultural use is already severely .limited. , . 'I An agricultural program based upon preferred soils and coordinated with a growth-management program would assure this condition. C. ,..I' by developing available lands not suited for agriculture prior to the conversion of agricultural : lands . '1 The committee also recommends this. Howeve'r, the PRC .Toups plan recommends lands for development that have soils.suitable for agriculture and recommends lands which have less than suitable soils for agricultural preservation. The entire focus of the committee's policy is to encourage lands suitable for agriculture. d. "By assuring that public service and facility expansions... do not impair agricultural viability. .." ' Coordinating growth management and agricultural lands will ensure that public service and facilities do not increase costs or degrade the environment. Section 30242 of the Coastal Act states that: "All other lands suitable for agricultural use shall not be converted to non-agricultural uses unless: (1) continued or renewed agricultural uses is not feasible, or (2) such conversion would preserve prime agricultural land or concentrate development consistent with Section 30250. Any such permitted conversion shall be compatible with continued agricultural use on surrounding lands." .. -6- . The committee believes that continued agricultural use may not be feasible in many areas of Carlsbad in 5-10 years. The Local Coastal Plan must note this. JC:ar 2/19/81 -1 . _- -7- END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS . - FEBRUARY ?6, 198Y TO: MAYOR et CITY COUNCIL OF CARLSBAD FROM: G. S. MOORE - MEMBER OF AGRICULTURAL COMMITTEE SUBJECT: AGRICULTURAL POLICY REGARDING GREENHOUSE OPERATIONS. .. F.IRST, THE FPRMERS AND FLOWER GROWERS IN THE COUNTY ISLANDS SOUTH OF PALOMAR AIRPORT ROAD (LIST ATTACHED) WOULD LIKE TO THANK THE COUNCIL FOR INCLUDING A REPRESENTATIVE OF THEIR AREA TO PARTICI- PATE IN THE DEVELOPMENT OF CARLSBAD'S AGRICULTURAL PLAN. HOWEVER, MOST PEOPLE INVOLVED IN AGRICULTURAL ACTIVITIES (MOSTLY FLORICULTURE) FEEL THE ATTACHED REPORT UNDULY FAVORS THE LEASEE OR ITINERANT FARMER AT *THE EXPENSE OF THE LAPJD OWNERS AND GREENHOUSE OPERATORS. IT IS ADDITIONALLY DISTURBING THAT MANY OF THESE PEOPLE FEEL THE COASTAL COMMISSION'S STAFF PROPOSAL OF AGRICULTURAL SURSIDYS IMPROVEMENT FUND, WOULD FURTHER THEIR INTERESTS MORE THAN CARLSOAD'S PROGRAM, ALLOCATING IPJ EXCESS OF 3 FAILLION FOR AN AGRICULTURAL AGRICULTURAL PLAN. THE MAJORITY OF THESE PEOPLE RESENT THE CITY NOT EXCLUDING GREENHOUSE OPERATIONS FRObI AGRICULTURAL LAND PRESERVATION. THI 9 IS A BONE OF CONTENTI0,N IN THE DEVELOPMENT OF THE SAN DIEGUITO L.C.P. AS EXEPjPLIFIED BY THE ATTACHED NEWS-CLIP. - IN THE INTEREST OF MAKING CARLSBAD' s AGRICULTURAL ELEMENT MORE COMPATIBLE WITH 11G~~~~~~~~~7f INTERESTS I REQUEST THE COUNCIL TO INCLUDE A POL I CY STATEMENT OF "EXCEPT I NG GREENHOUSE FROM AGR I CULTUR- AL LAND PRESERVATION." ATT : L 1 ST CLIP ._ .. This recommendation lnct with considerable opposition from San Dieguito flower growers at the first coast commission hearing two weeks ago. Growers argued that the county had cxcl~~dtvl ~~rccnhouses.from agricultural land preservation policies becausb greenhouse op- eration wasn't dc~pcndtnt on soil quality. l'hc scco1;cl hearing is scheduled for 10 :~.m. Friday :it the State Office 15uiIdiup;. 1350 Front St., Room 13- 1OY;San Dicgo. , a' Tabat a Brothers P.O. Box 943 Carlsbad, CA 92008 Akira Kurogz 221 Prince House Lane Encinitas, CA 92024 E. P. Schoppe 3754 Balboa Dr. Oceanside, CA 92054. Robert Farris 1929 Alta Vista Dr. Vista, CA 92083 Joseph A. Rudvalis 1638 Valleda Lvle Encinitas, CA 92024 Glichael J. Cordoza 1698 Crest Dr. Encinitas, CA 92024 tlilliam X. Lujan 6505 El Camino Real Carlsbad, CA 92008 Frances E. Alvarez 6491 El Carnino €?ea1 Carlsbad, CA 92008 George Bolton 6519 El Camino Real Carlsbad, CA 92008 Kanuel Hidalgo 6511 El Camino Real Carlsbad, CA 92008 Miquel Padilla 754 Del Riego Encinitas, CA 92024 Anthony Sons 1124 Blue Sage San Narcos, CA 32069 Guy Moore 6503 El Carnino Real Carlsbad, CA 92008 Steve Idartin David 3. .Thomnso 7400 Batlqult-z,s Br. Carlsbad, CA 92008 Poinsettia Lane Euroya Growers Carlsbad Whsle. Florist P.O. 30s 325 Carlsbad, CA 92003 Del Rey Floral Rudvalis Orchids 6517 El Camino 2eal Carlsbsd, CA 92008 The Flower Patch 6525 El Camino Real Carlsbad, CA 92008 Sun-Fresh Floral 6515 El Camino Real Carlsbad, CA 92008 The Flower Peddler 6523 El Camir,o Red Carlsbad, CA 92008. Thompson Rose Co. Poinsettia Lane Carlabad, ~ ~~~ ~~ CA 92008 "~ Produce Farmers Eome 438-0280 Business 433-3689 LzndscaTe Nursexy Home 753-6625 ksiness 426-5681 Carnations Home 433-0960 Business 438-1133 Carnations Home 7 24-4847 Business 438-2266 Orchids Home 436-5665 Business 438-2121 Carnations Hone 753-6$03 3usiness n3E-1601 Resident Home !+38-1722 Resident Home 438-1128 Resident Home 438-1478 Resiclent Home 438-1124 Carnations Home 436-3764 . Business None Roses Efome .727-19A71 Business 438-1741 Orchids Home 438-1170 Carnations Home 753-7778 Roses Home 438-0518 Business d78-7lRo END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS "Ir t DATE : May 6, 1981 TO: , Mayor and City Council FROM: Agricultural Advisory Committee SUBJECT: AGRICULTURAL PROGRAM The Agricultural Advisory Committee prepared a report for the City Council in February 1981. This report contained a series of recommendations which were all included as part of the city's Local Coastal. Plan (LCP). However, the problem of agriculture remains a ci ty-wide issue and ~ needs to be addressed beyond the scope of the LCP. Therefore, il, the Committee is proposing two items to begin implementation of :-; this agricul.tura1 >program. Both were part of the recommendations 72 .:made by the Agricultural Advisory Committee to the City Council "L. '/& . .:- >,? , .- ; ,-.- The first item is t.0 request that the City Council direct the .i . .. , City Attorney to amend Title 6 and Title 7 of the Carl sbad Muni- \ T>:J cipal Code. The amendment to Title 6 would state that Agricul- 4" operated in an efficient2manner could not be declared a nuisa,nce? A:t4- The amendment to Title 7 (offensive odors) would state the same exception. It would also state that any buffers necessary to control offensive odors would be the responsibility of encroach- ing development and not the responsibility of existing agricul- tural operations. The second item is a request to include a standard condition SF" state: - I I.. . tural operations in existence for more than one year and being c [.* i 7- ? Gf *{ .pA" -9 .~ - I J +.- >- <".. .. - " - . 9- for all discret-ionary approvals. The condition would ir : fiv. 'A -:> i . +>;a:* -+i ,- "-1 "If the property is shown as having Class I-IV soils, it shall be made available for-?easing until the land is pre- pared for development according to this entitlement. To ensure compliance with this condition, prior to recordation of the final map the applicant shall provide proof of having advertised once in a local paper that such land is available for agricultural leasing. Such a lease shall be made in good faith and in accordance with current leasing practices- The city shall not be a party to the lease." -. c The Planning Department has maps which show the soil classes throughtout the city. .Obviously not all land will be appropriate for leasing. Very small parcels would not.be attractive to potential leasees. Projects that would be ready for development immediately would also not be appropriate for leasing. The time- table for each development as well as market conditions would dictate which property could be leased. The Agricultural Advisory Committee believes that these are the first steps toward a comprehensive agricultural program. 3C:ls 5/5/81 f -2- END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS DATE : May 8, 1981 TO : Mayor and City Council FROM : Agricultural Advisory Committee SUBJECT: AGRICULTURAL PROGRAM The Agricultural Advisory Committee prepared a report for the City Council in February 1981. This report contained a series of recommendations which were all included as part of the city's Local Coastal Plan (LCP). However, the problem of agriculture remains a city-wide issue and needs to be addressed beyond the scope of the LCP. Therefore, the Committee is proposing two items to begin implementation of this agricultural program. Both were part of the recommendations made by the Agricultural Advisory Committee to the City Council. The first item is to request that the City Council direct the City Attorney to amend Title 6 and Title 7 of the Carl sbad Muni- cipal Code. The amendment to Title 6 would state that agricul- tural operations in existence for more than one year and being operated in a manner consistent with current and efficient local agricultural practices could not be declared a nuisance. The city would make the determination of whether an operation was or was not being operated in such a manner. The amendment to Title 7 (offensive odors) would state the same exception. It would also state that any buffers necessary to control offensive odors would be the responsibility of encroach- ing development and not the responsibility of existing agricul- tural operations. The second item is a request to include a standard condition of approval for all discretionary approvals. The condition would state: "If the property is shown as having Class I-IV soils, it shall be made available for leasing until the land is pre- pared for development according to this entitlement. To ensure compliance with this condition, prior to recordation of the final map the applicant shall provide proof of having advertised once in a local paper that such 1 and is available for agricultural leasing. Such a lease shall be made in good faith and in accordance with current leasing practices. The city shall not be a party to the lease." The Planning Department has maps which show the soil classes throughtout the city. Obviously not all land will be appropriate for leasing. Very small parcels would not be attractive to potential leasees. Projects that would be ready for development immediately would also not be appropriate for leasing. The time- table for each development as well as market conditions would dictate which property could be leased. The Agricultural Advisory Committee believes that these are the first steps toward a comprehensive agricultural program. JC:ls 5/5/81 -2- Aglands .7xchcznge .- .. I_ ~ _. . .. ., 5- Agricultural Lands Project NOVEMBER-DECEMBER 1980 VOX. 2. NO. 2 National Association of Counties Research Foundation, 1735 New York Ave. N.W. Washington, R.C. 20006 ANALYSIS "Right to Farm" Laws Examined by EdwudThonrp- Jr. The encroachment of residential development into agricultural areas -a leading cause of disappearing farmlands - is also responsible for growth in the number and severity of land use conflicts between farmers and suburbanites. Odors. dust. noise and chemical spray drift are normal byproducts of agriculture that are usually offensive to neighboring homeowners and can sometimes pose a threat to public health and safety. More and more homeowners. it seems, are turning to the courts to put an end to what they consider agricultural nuisances. (See, . Farming In the Shadow of Suburbia Publications Update p. 3.) Recognizing that agriculture could hardly continue without its byproducts. agrowing number of states have enacted laws that attempt to protect farmers against nuisance lawsuits which can result in financial liability or the suspension of agricultural operations. These state statutes are known as "right to farm" laws. But a close reading of these laws seems to indicate that they do not really offer much protection to farmers. and that amending them to provide real immunity from suit or nuisance liability would raise constitutional problems that could render the laws invalid. Nuisance is a concept dating back to the English common law that was imported to America by the early colonists. The term nuisance describes any activity that unreasonably interferes with a person's right to use and enjoy his property. Since all property owners have such a right. determining whether a particular land use REGIONAL REPORT Mountain West Showdown by Thomas Billet, NACoRF Intern This Is theflrst of a serles of reports by the Agrfcultural Lands Project on the farmland conversion "hotspots" throughout the nation. Aggregate natfonal statlstics on farmland losses tend to obscure the severity ofthisproblem on a local scale. What is at stake In literally hundreds of rural communlties is the freedom topractice agriculture wlthout interference from nearby resfdential deoelopment. a stable local agricultural economy, and a tradftfonal way of life. conuersfon from the "topclown"- whfch b the view that many academfcs in Washington take- makes it appear relatively LnsignlJicant, perhaps not signfflcant enough to warrant national Viewing theproblem of farmland attention. But when thlsproblem is ofewed from the "bottom up"- theperspectiw that mst citizens take- the number of communlties in which it is becoming seuere quickly adds up to thepofnt where farmland conuersfon demands some kind of natfonal action toassist localities with theirstruggle to reduce its impacts on people. ThfsJlrst regional report focuses on farmland conuersfon "hotspots" in Utah. Colorado. Wyoming. Idaho. Arizona and New Mexfco. Thedimensions of theproblem in Nevada and Montana remain somewhat mysterious. Aglands Exchange inoftes you to helpflll in the blanks by bringing to our attention any local farmland conversion problems we haveomftted from thfs report on the Mountafn West. See SHOWDOWN. page 6 activity constitutes a nuisance requires that competing rights be balanced. For instance. the farmer generally has a right to cultivate his land without interference from neighbors, while neighboring homeowners also have a right to live in peace wlthout excessive agricultural noise. Where the balance is struck depends largely on the particular circumstances in each case. The U. S. Supreme Court has said that a nuisance is simply "the right thing in the wrong place, like a pig in a parlor instead of the barnyard." USDA-SoilConservationSenim State and local legislatures may act to supercede the common law of nuisance -as they have attempted todo by passing the "right to farm" statutes. In effect. these laws shift the balancing point to favor agricultural land uses over competing or conflicting residential land uses. But nuisance lawsuits are still decided by the courts on the basis of the facts of the particular case. And the balancing point cannot be shifted too far in one direction with riskingjudicial invalidation of the statute on constitutional See "RIGHT TO FARM," page 2 NATIONAL AGRICULTURAL LANDS COlYFERENCE SET! The first national conference on agricultural lands, sponsored by the National Association of Counties and many other organizations, will be held on February 8- 10.1981, in Chicago. Illinois. With something to appeal to everyone who has an interest in this timely issue. the conference will feature the announcement of the longawaited conclusions of the National Agricultural Lands Study, addresses by prominent agricultural leaders, educational seminars. exhibits and events related to the future of agriculture and the land. The c*sponsors hope toattract hundredsof their respective constituents and friends to this once-in-a-decade event that will help chart the future of American agrtculture. Don't miss it! Registration information inside! 1 Cohtinued.from page 1 - I grounds. Thus. it will be in the courts that the "right to farm" laws will have to demonstrate their value as a protective measure for agriculture. and their validity in terms of fairness to nonfarmers. The "right to farm" law of North Carolina, enacted in 1979. is typical of the breed of similar statutes passed by the legislatures of Delaware, Florida, Georgia, Mississippi, Tennessee and Washington. and now being considered by Kentucky and Virginia. among other states. An analysis of its provisions will illustrate why the "right to farm" laws are of questionable value as a means of protecting the farmer from nuisance suits that result from land use conflicts that, in turn. stem from the encroachment of residential development into agricultural areas. statement of its purpose: The North Carolina law begins with a It is the declared policy of the State to conserne and protect and encourage the dewlopment and improvement of its agricultural land for theproduction of food and other agricultural products. When nonagricultural land uses extend into agricultural areas. agrfcultural operations often become the subject of nuisancesuits As a result, agricultural operations aresometimesforced tocease operations. Many others are discouraged from making investments in farm (law) to reduce the loss to thestateof its agricultural resources by limiting the circumstances under which ugricultural operations may be deemed a nuisance. I improvements. It is thepurposeofthis This opening statement draws the appropriate connection between land use conflicts as nuisances and the loss of agricultural land. It thus sets the stage for the statutory language that has an actual effect on how agricultural nuisances are defined: No agricultuml operation or any of its appurtenances shall be or become a nuisance.. . by changed conditions in or about the locality thereof ajter thesame has been in operation for more than one year, when such operation was not a nuisanceat the time theoperation began: provided. that theprovisionsof this [law; shall not apply whenever a nuisance results fromthe negligent or improper operation of arty such agricultural operation or its appurtenunces. Thissection of the law defines the circumstances under which a court. acting on a formal complaint by a nearby homeowner, may not declare an agricultural land use to be a nuisance and order it tn cease. It does not immunize the farmer from being sued in the first place. A farmer may still be hauled into court by a neighbor whoclaims that his opcration is creating a nuisance. and he may thereby be forced to take time away from his farm and to pay attorney's fees in the defense of his case. farm" law is unclrar on a number of important qurstions related to the potential 2 Hccarlsc. as wc shall see. thr "right to Whether the "right to farm" laws will make a signijkant difference to the fiture security of agriculture remains to be seen. Theauthor. an attorney. is thedfrectorof the NACoRFAgricultural LundsFTqfect. liability of the farmer. it is likely that many agricultural nuisance suits will be litlgated before it does become clear, ifat all. that such suits are worth the trouble of defending. instead of settling out of court. might look like a desirable objective. it is doubtful that this could be legally accomplished. Those neighboring property owners who have legitimate nuisance claims would thereby be denied the opportunity to have their day in court. This could amount to a denial of their constitutional right to due process of law. which requires the government to "play fair" with all citizens. Once a lawsuit has been flled against the farmer, the court will examine the specific facts of the case to see whether the circumstances warrant declaring the agricultural operation a nuisance. Here is where the language of the "right to farm" statute operates to limit those circumstances. If all the following circumstances are found to exist. the farmer cannot be ruled to be creating a nuisance under the North Carolina law: While keeping farmers out of court entirely The agricultural operation was not creating a nuisance when it began, and changing local conditions alone have given rise to the claim that the operation is a nuisance, The agricultural operation has been in operation for at least one year, and The agricultural operation is not being conducted negligently or improperly. Let's look at these issues one at a time to see how much protection they actually offer the farmer. and goes to the heart of the matter. Was the agricultural operation creating a nuisance before the neighbor who now complains about it moved next door and. thus. changed the local conditions under which the farmer is forced to operate? If none of the farmer's agricultural neighbors have complained in the past. it's a safe bet that his operation will not be found to have been a nuisance when it bcgan. Of course. this provision of the law also prevents a farmer from continuing genuinely harmful agricultural practices - those that would amount to a comnlon law nuisance -just because some poor sucker has moved next door. The first issue Is relatively straightforward .~ Second. there Is the issue of whether the agricultural operation has been going on for at least a year. This appears on its face to be simple enough. but the interpretation of this provision of the law is really more complicated. The one-year provision protects the homeowner from nuisances created by new agricultural Operations by giving him a year to file a formal complaint or forever hold his peace. It also protects established farmers fmm new homeowners who complain that agricultural operations are creating a nuisance. Or does it? The answer is cloudy because the North Carolina "right to farm" statute does not specifically define an agricultural operation, other than by reference to the commodities it produces. Such operations are not defined in terms of the agricultural practices being employed. Thus. it is not clear whether a change in the particular practices used bya farmer will transform a year-old operation into an entirely new one that is not protected by the law. designed to prevent unfair surprises on both sides of the fence, let's consider the following situation: Farmer A has been in operation for overa year. using traditional cultivation methods for growing corn. Homeowner B later builds a house on a tract of land he bought from a neighboring farmer. Farmer A then decides to go to "no till" cultivation. dramatically increasing the dose of herbicide applied to his land. so as to reduce his tillage costs and increase his return from the corn crop. Homeowner B is alarmed when drifting chemical spray gets all over the bedsheets hanging on the washtines: he files suit against Fariner A. claiming that the agricultural spraying is interfering with his right as a homeowner to be free of chemical drift. Certainly, if FarmerA had continued using traditional cultivation methods. hisoperation would be protected under the "right to farm" law (assuming no negligence on hls part] from a claim that. for example. dust was soiling the neighbor's wash. But FarmerA has changed his operation to include practices quite unlike those he was using before Homeowner B came around. Has the agricultural operation changed sufficiently to make it. for purposes of the statute. a new operation that is less than one year old? could arise will depend upon a detailed inquiry into the specific facts of the case. The effect of this legal uncertainty is that the "right to farm" law offers much less protection to the farmer than appearsat first glance. Indeed. if nuisances become a widespread problem in a given locality where residences are mixed in with the farms. the effect of the "right to farm" law might be t@ lock established farmers into their current agricultural practices. giving them little freedom - without risk of liability -to modify their operations to meet changing opportunities to increase production or rcduce costs. might be resolved in the farmer's favor by rcquiring new homeowners to assume the risk that an established farmer might Keeping in mind that the statute is The answer to this and similar questions that The uncertainty of the North Carolina law substantially change his methods of operation. But this could be too much to ask from a legal standpoint - it could shift that balancing point too far. (Indeed. other "right to farm" statutes expressly reject this approach.) Here's why. The one-year provision of the North Carolina law effectively restores the legal concept of "first in time, first in right" which used to. but no longer necessarily governs nuisance lawsuits. In the simple days gone by, when change came slowly. a person had a right to continue an existing land use regardless of changing conditions. If you were there first. you had a right to do what you wanted. This concept has fallen into disfavor with the courts because it began to produce some highly unfair results: things change more quickly now and the adoption of high technology in areas such as agriculture has expanded the potential consequences of land use beyond what was even imaginable in the old days. Still. a return to this concept does not require the new homeowner to assume unreasonable risks. because the "right to farm" law serves notice that he must be prepared to put up with agricultural practices that were going on when he moved nearby. Fair enough. But asking the homeowner to assume all risk of injury fromJut,ure agricultural practices - including some yet to be developed - would be adopting a new legal principle: "the farmer is first in right, even if he is later in time. ' Considering that changing agricultural practices could pose unimaginable risks to the health and safety of neighboring homeowners, there is a serious question whether a "right to farm" law based on this concept could withstand a legal challenge that it violates the "fair play" principle on which the constitutional right of due process of law is grounded. statute is whether the farmer is conducting his agricultural operation in a manner that is neither negligent nor "improper." If so, he is protected by the law. assuming that all other circumstances are found in his favor. Negligence is another common law concept designed to protect people from others' carelessness. The traditlonai standard of care that one must live up to is defined by what a "reasonable" person would do under the circumstances. (You can begin to see just how important circumstances are in the agricultural nuisance context.) manner that is so careless that even his fellow farmers would not tolerate it, the chances are good that he is acting negligently. This type of agricultural operation is not protected by the "right to farm" law. nor should it be. (Take note, too, that certain kinds of activities are considered dangerous enough - chemical spraying is an example - that the standard of care required by negligence law is higher, and the chances of being found negligent are greater.) But it is the issue of what constitutes "improper" conduct under the law that is trickier still. Although some "right to farm'' laws define proper conduct in terms of "good agricultural practices" or the standards The third issue raised by the North Carolina If a farmer conducts hisoperation in a established by environmental. health and safety regulations. the North Carolina statute is silent on this point. Perhaps the intent of the law was to treat "negligent" and "improper" as essentially the same thing. requiring the same standard of care on the part of the farmer. But if that were the case. the use of one of these terms. rather than both of them. would have sufficed. (The use of the disjunctive term "or" in the operative phrase of the statute suggests that it was not intended to be read as a whole. uiz. "negligent and improper.") The formal rules of statutory interpretation compel the conclusion that the North Carolina law creates another exception -improper conduct of agricultural operations - to the "right to farm" protection given to fanners. Given this further exception of undefined scope, it could be entirely possible that in a case where the circumstances (!I literally demand a decision against the farmer - don't forget that emotions are also part of the Judicial decisionmaking process - an agricultural activity might be deemed "improper." and thus unprotectcd by the statute, simply because it is creating a very harrriful nuisance. At this point. of course., the original purpose of the law would be completely frustrated. But that is just another way of saying that the intent of the North Carolina statute and its kin is not very clear to begin with. This vagueness could become the basis of an attack on the "right to farm" law as a violation of due process. Finally. the North Carolina statute and others like it. including the agricultural district laws of New York and Virginia. declare that local ordinances, both now and in effect and those that may be enacted. are void if they are inconsistent with the protection offered farmers by the state "right to farm" laws. But because of the loopholes in these laws. as described above. creative legal draftsmanship by county and township commissions might very easily result in local ordinances which are entirely consistent with the "right to farm" laws. but which significantly restrict agricultural operations. An example would be a local ordinance declariag certain agricultural practices to be "improper." and thus outside the scope of the state law's protection. In conclusion. the most that can be said for the "right to farm" laws based on the North Carolina model is that they offerfust a bit more protection to the farmer than does the common law of nuisance. Whether this additional increment ofprotection makesa significant difference to the future security of agriculture remains to be seen. The worst chat can be said about the "right to farm" laws is that. if indeed they areconstitutional. they hold out to farmers a false promise of security that cannot be fulfilled. In this sense. they are a poor substitute for the one method of protecting agriculture from land use conflicts that offers real hope for its future security - discouraging residential development of agricultural areas in the first place. PUBLICATIONS UPDATE Farming In The Shadow of Suburbia: Case Studies in Agricultural Land Use Conflict is a booklet published by the NACoRF Agricultural Lands Project, intended for distribution by farm and civic organlzations and government agencies to their members, employees and constituents. The booklet is the result of a survey of hundreds of American farmers who tell in their own words about the bewildering variety of land use conflicts that have beset them as residential development expands into the countryside. It calls these land use conflicts "an unmistakable signal that local agriculture is in trouble" and suggests ways that farmers and other concerned citizens can help avoid such conflicts. Orders of up to 100 copies are FREE. Additional copies are 5 cents apiece. Tborder write: "Agricult~~ral Conflicts." c/oN.'ACoKF. 1735 Xew York Avenue. N.W.. Washington D. C. 20006. Please enclose payment. 3 END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS mMORANDUM DATE : May 12, 1981 TO : Agricultural Advisory Committee Via: Joyce Crosthwaite, Planning Dept. FROM : City Attorney SUBJECT : CITY'S AGRICULTURAL PROGRAM We have been asked by the Planning Department to give our com- ments on two aspects of the city's agricultural program. The first aspect is the right to farm ordinance and the second aspect is the standard condition regarding availability of land for agricultural leasing. Because of the numerous policy questions involved we offer no comment on the issue of whether the city should adopt a right to farm ordinance. Right to farm laws are an attempt by state and local legislatures to supersede the common law of nuisance to favor agricultural land uses over competing or conflicting residential land uses. As one commentator has noted, "there is perhaps no more inpenetrable jungle in the entire law than that which surrounds the word nuisance." The applicability and desirability of right to farm laws is a matter of considerable dispute among various experts in the field. Irrespective of the . merits of a right to farm law, it is our opinion that the city has the legal power to adopt such an ordinance. The power stems both from the constitutional police power vested in the city and from various state statutes, including the State Planning Act and the Civil Code sections dealing with nuisances. If the Agricultural Advisory Cormittee determines that a right to farm ordinance is appropriate in the City of Carlsbad, we suggest that the appropriate recommendation from the Committee to the Council would be to direct the City Attorney to prepare the necessary documents to implement that policy. We would then undertake to draft the ordinance in an appropriate manner and place it in the appropriate portion of the Carlsbad Municipal Code. Of course, prior to returning the documents to the City Council, we would review and comment. . submit them to the Agricultural Advisory Committee for their Concerning the addition of a standard condition for all discre- tionary approvals that the applicant make the land available for agricultural leasing, we offer the following comments. It is -2- our understanding that this condition would state: "If the property is shown as having Class I through IV soils, it shall be made available for leasing until the land is prepared for develop- ment according to this entitlement. To ensure compliance with this condition, prior to recordation of the final map the applicant shall provide proof ' of having advertised once in a local paper that such land is available for agricultural leasing. Such a lease shall he made in good faith and in accordance with current leasing practices. The city shall not . to a party to the lease." * We have been informed by the Planning Department that the reason the Agricultural Committee wishes to recommend this condition to the City Council is that certain agricultural operators have attempted to secure agricultural leases from developers who have received discretionary entitlement but that such request was denied because the land owner feared that use of the land for agricultural purposes could prejudice the landowner's ability to use the land for th.e purposes indicated in the entitlement. If this is the reason for the proposed condition, then that problem can be resolved by methods other than requiring the landowner to utilize his property for agricultural purposes for a certain period of time. One method for resolving the problem would be to amend'the Municipal Code to provide that agricultural use of land after discretionary approval has been granted shall not prejudice the applicant's pursuit of the development for which the entitlement was given. Another possibility would be to add that provision to the discretionary approval itself. If the Agricultural Advisory Committee thinks that it is necessary to mandate the landowner to make his land available for agricultural leasing, then the proposed language is not enforceable and must be rewritten. Because we cannot fully ascertain the intent of the Agricultural Advisory Committee on this matter, we cannot suggest appropriate language to accomplish your goal. As with the right to farm ordinance, this office is of course ready to prepare the appropriate language to implement the Committee's policy decision provided it is within the legal authority of the city. We look forward to working.with the Agricultural Advisory Committee on these and other items as the city progresses toward Carlsbad. the establishment of a agricultural program for JR., City Attorney DSH/mla City Attorney Another possibility was to allow development on portions of agricultural land,and to zone the remainder as open space or manner would receive a density bonus. ,. agriculture. Those owners who develop their land in this It was also stated that agricultural land is a resource and should be preserved as such. This could be accomplished through a program of purchasing development rights or through clustering dwelling units. A final alternative was to propose nothing and to refuse to implement the Local Coastal Plan. ' The committee discussed all the possible solutions and decided to recommend the following alternative to the Local Coastal Plan. It is only an alteraative in concept; the details for implementing it will be worked out later. RECOMMENDED ALTERNATIVE The agricultural policy favored by the committee would include the following: 1. A RIGHT-TO-FARM ORDINANCE A farm operation, having been in operation for at least a year and not creating a nuisance when it began and not being operated negligently or improperly, shall not become a nuisance due to changing local condi- tions alone. 4 2. BUFFERS Buffers would be the responsibility of lands develop- ing around agriculture, not the responsibility of , current farming operations. CC&R's should also include this. A buffer could be defined as a wall, physical distance, or. fences. 3. CONTINUED PRIORITY OF WATER RATES AND SUPPLY TO AGRI- CU LTU . 4, A PREFERRED PRIORITY FOR AGRICULTURE FOR ANY RECLAIMED WATER'. Staff is currently researching regulations concerning the use of reclaimed water for agriculture. , 5. ENDORSEMENT OF POLICY 64 OF THE SAN DIEGUITO LCP. .. The Coastal Commission staff proposed the, following policy for impacted agriculture. The committee en- dorses it on 1ands.with suitable soils and. with less than 100 contiguous acres which do not have to be under the same ownership. The policy states: -. . Encourage continued agriculture, but allow conversion -when renewed use not - feasible: Detailed conversion criteria to be developed, considering the following: 1) encroaching development; surrounding densities 2) impacts of conversion on other agricultural lands 3) diseased soil and/or poor drainage 4) occurence of deterioratiny/depreciated structures 5) profitability of operation declining in relation to prior years, uncertainty concerning reversal of trend. 60 CLUSTERING OF DWELLING UNITS ON AGRICULTURAL LAND WITH *SUITABLE SOILS AND WITH 100 CONTIGUOUS ACRES OR MORE. The density allowed by the General Plan and Zoning Ordinance could be developed at one time on a portion 05 .the property (the remainder would be left as agricuiture or open space) or the-property could be developed on ' phases over a number of years with agriculture continuing on the undeveloped portions. Participation in the pro- gram would be voluntary and could be' accomplished through a Planned Unit Development .(PUD) Zone. 7. FAIR MARKET VALUE COMPENSATION TO OWNERS. Any agricultural preservation plan must include this item, ' - if the land is totally restricted to agriculture. This is necessary because the money from a fair market price . ' constitutes the capital owners to borrow against. 8. ENCOURAGEMENT OF AGRICULTURAL LEASING ON LANDS SLATED FOR DEVSLOPY5NT. Leasing of lands could be made a condition of approval for tentative maps. The leasing would continue until grading began. 9 9. SUPPORT FOR AGRICULTURAL POWER RATES IN OFF-PEAK PERIODS. 10. AN ANNUAL REVIEW AND REPORT TO THE CITY COUNCIL ON THE ECONOI.IICS OF FARMING IN -CARLSBAD. This report would inform the Council and educate the public. It would be prepared by-a committee whose make- up would be similar to 'the current Agricultural Advisory Committee. It would meet only long enough each year to prepare the report.' ' 11. SUPPORT FOR TAX INCENTIVES FOR AGRICULTURAL LANDS THROUGH THE STATE AND COUNTY. 12. COORDINATION WITH THE GROWTH. MANAGEMENT REPORT. .A timetable for development should be established. (. .. . END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS MEMORANDUM DATE : June 29, 1981 To: Agricultural Advisory Committee FROM : City Attorney SUBJECT: RIGHT-TO-FARM LAW Attached to this memorandum is a draft of a new chapter to be added to the zone code. New Chapter 21.63 entitled "Agricultural Operations" adds three new sections to the Carlsbad Municipal Code. The three sections are a declaration of purpose, a section determining that agricultural operations will not be nuisances and a section stating the City's policy regarding subsequent use of agricultural land. Our office would appreciate your review and comments on the proposed ordinance. New Section 21.63.020 declares that agricultural operations shall not become or be declared a nuisance by any change in the conditions in or around the agricultural operations. This provi- sion modifies the common law of nuisance and reinstates a first- in-time, first-in-right priority among uses. There are four conditions which must exist before the section is effective. First, the agricultural operation must have been maintained on the property for more than one year. Second, the operation must be conducted in a reasonable fashion and not have a substantial adverse effect on public health and safety. Third, the land upon which the agricultural operation is conducted must be appropri- ately zoned for such operation and the operation must be conduct- ed in a manner that is consistent with the provisions of that zone. The Committee should remember that agricultural operations are authorized in many zones other than agricultural zones in the city. However, when agricultural operations are conducted in other than the agricultural zone, the type of operation is limit- ed. Fourth, the agricultural operation must be conducted in a manner that is consistent with any state law regulating any aspect of the agricultural operation and the agricultural oper- ation must not be conducted in an unreasonable, negligent or improper manner. As we indicated in our last memorandum to you, nuisance law is one of the most complicated areas of all tort law. Nuisance law implements a social policy that people should be able to use their property and conduct their life free from interference by Agricultural Advisory Committee June 29, 1981 Page 2 other persons. In applying principles of nuisance law, courts look to the rights of both parties and balance the considerations in determining whether a certain use is a nuisance to the individual bringing the complaint. For a long time a first-in-time policy existed in the common law; however, with increased urbanization and the advent of more noxious types of uses, the common law changed as the social policy changed. With more urbanization the first-in-time principle was gradually changed to the rule that exists today. That rule states that because of changed circumstances, the use that was entirely appropriate when it began, may no longer be appropriate in the location that it is located. Because courts look with disfavor on legislation denying individuals their remedies against an abnoxious or offensive operation, we have included a provision in the ordinance which maintains a person's right to sue to recover money damages for any injury caused or resulting from any agricultural operation. This would mean that an agricultural operation could continue to operate in a manner that was detrimental to a neighbor as long as the agricultural operation paid damages for doing so. To give agricultural operations an absolute immunity from nuisance law is beyond the power of the City. We feel we must warn the Committee that even as drafted the provisions of Section 21.63.020 may be preempted. The City's power to adopt an ordinance such as the right-to-farm law stems from Article XI, Section 7, of the State Constitution. Section 7 states: "A County or City may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws." When a local ordinance is in conflict with state law courts may deem it is preempted and invalid. Presently, California Code of Civil Procedure Section 731(a) provides an exemption from private nuisance actions for industrial, commercial or airport uses in appropriate zones unless there is evidence that the operation employs unnecessary or injurious methods of operation. . Agricultural Advisory Committee June 29, 1981 Page 3 This protection would apply to agricultural operations conducted in zones which expressly permit such operation. This protection in the Code of Civil Procedure has been severely restricted by the courts which, as we have indicated earlier, frown on any legislation which alters the common law of nuisance. In addition to the provisions of Section 731(a) of the Code of Civil Procedure, there are a number of other laws which regulate agricultural operations. Provisions of the Agricultural Code regulate pesticide and fertilizer use, including crop dusting, and require permits for various types of fertilizer and pesticide application. In addition, the Health and Safety Code regulates air pollution aspects of agricultural operations, including odor, and provides certain exemptions from the operations of the Clean Air Act for certain of agricultural operations. Because of all of this legislation the courts may determine that the City's ordinance has been preempted. However, that determination will not be made unless somebody challenges the ordinance and raises the issue. Because we can find no case law in California or even any other city which has adopted this type of ordinance, there is no precedent as to whether or not it is preempted. We have taken the opportunity to talk with an attorney for the Department of Agriculture about the right-to-farm law. In his opinion the right-to-farm law would be preempted by the state legislation. Because of these and other legal problems the right-to-farm law may provide agricultural operators with nothing more than a false sense of security. The provisions of Section 21.63.030 are intended to establish the City's policy regarding future use of agricultural lands for other purposes. Basically what the section provides is that use of land for agricultural operations shall not create a presumption that continued agricultural operations are in fact feasible, nor will it preclude subsequent issuances of other permits necessary to use the property for purposes other than agricultural operations. This ordinance restates existing law that the use of property will be determined by the City's policymakers on the merits of each application, consistent with the general plan and the zone code, and recognizes that the evolution of cities precludes any "permanent" land use. Agricultural AdvisoryCommittee June 29, 1981 Page 4 If you have any questions with regard to the proposed ordinance after you have had an opportunity to study it, please feel free to request our attendance at one of your meetings so that we may address your concerns. VIN 0 NT F. BIONDO, JR., City Attorney City Attorney DSH/mla Attachment cc: Planning Director 1 2 3 4 5 6 7 E 9 1c 13 1: 2( 2: 2: 2: 24 ' 2! 2( 2' 2r 1 / ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD MUNICIPAL CODE BY THE ADDITION OF CHAPTER 21.63 RELATING TO AGRICULTURAL OPERATIONS. . . CARLSBAD, CALIFORNIA, AMENDING TITLE 21, OF THE The City Council of the City of Carlsbad, California does ordain as follows: . SECTION 1:' That Title 21 of the Carlsbad Municipal Code is amended by the addition of Chapter 21.63 to read as follows: "Chapter 21.63 AGRICULTURAL OPERATIONS Sections: 21.63.010 Declaration of purpose. ' 21.63.020 Agricultural operations not nuisances. 21.63.030 Subsequent use. 21.63.010 Declaration.of purpose. It is the declared policy of the City of Carlsbad to conserve, protect and encourage the development and improvement of agricultural lands for the production of foods and other agricultural products. In order to insure continued economic feasibility of agricultural operations, it is necessary to offer certain protections to agricultural operations. The City Council has found that agricultural operations are faced with .increased urbanization and the inability to raise necessary financing if land is designated for a permanent agricultural operation. Therefore, it is -the intent df the City Council in adopting this chapter to protect agricultural operations from urban encroachment and to assure agricultural operators that use of la.nd for agricultural purposes shall not preclude the use of the land for other purposes in the future. 21.63.020 Agricultural operations not nuisances. No agricultural operation or any of its .appurtenances shall become OK be declared a nuisance, public or private, by any change in conditions in or about the locality thereof, provided that: /// /// -. (a) The agricultural use has been maintained on the (b) The agricultural operation is conducted in a roperty for more than one year; easonab1e.fashion and does not have a substantial adverse effect n the public health and safety; (c) -The land upon which the agricultural operation is onducted is appropriately zoned for such operation and the . peration is conducted in a manner that is consistent with the one. h'at is consistent with any state law regulating any aspect of gricultural operation and the agricultural' operation is not 'onducted in an unreasonable, negligent or improper manner. For the purposes of this section agricultural .operation ncludes, without limitation, any agricultural use allowed by .his title provided, however, that nothing in. this section shall. luthorize an agricultural use in any zone except as pe'rmitted by .he provisions of that zone. This section shall not affect or lefeat the right of any person to recover damages for any injury faused or resulting from any agricultural operation. (d) The agricultural operation is conducted in a manner 21.63.030 Subsequent use. Use of land for agricultural ,perations shall not preclude other future uses of the property )r create a presumption that continued agricultural operations tre feasible. Agri.cultura1 operations instituted or continued tfter the issuance of a discretionary permit for use of property ior other than agricultural operations shall not preclude le-velopment of the project pursuant to such permit or preclude .ssuance Qf subsequent permits in pursuit of the levelopment. EFFECTIVE DATE: This ordinance shall be effective :hirty days after its adoption, and the City Clerk shall certify :o the adoption of this ordinance and cause it to be published 3t least once in the Carlsbad Journal within fifteen days after its adoption. 1 2 3 4 5 6 7 ,% 9 3.0 11 19 20 21 22 23 24 25 26 27 28 , .. INTRODUCED AND FIRST READ'at- a regular meeting of the Carlsbad City Council held on the day of I 1981, and thereafter PASSED AND ADOPTED at a regular meeting of said City Coouncil held on the day of I 1981, by the following vote, to wit: AYES : NOES: ABSENT: RONALD C. PACKARD, Mayor ATTEST: ALETHA L. RAUTENKRANZ, City Clerk (SEAL) -3- END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS MEMORANDUM DATE : July 29, 1981 TO : Mayor Packard and City Council Members FROM : Agricultural Advisory Committee SUBJECT: AGRICULTURAL PROGRAM The City Council formed the Agricultural Advisory Committee in December 1980. The Committee's primary responsibility was to recommend an agriculture program which would be acceptable to the City, the Coastal Commission and the local farming community. The community agreed upon an outline of an agricultural program. The City Council presented this program to the Regional Coastal Commission in March 1981. The Regional Commission approved the program for the city of Carlsbad and a similar one presented by the County of San Diego for the San Dieguito area. Both the City's and the County's agricultural programs were rejected by the State Coastal Commission in June 1981. A program based on the transfer of development rights was approved, but was not acceptable to the City or the farming community. The Agricultural Committee believes that there is a need to implement the original program they recommended on a city-wide basis. are: 1) 2) 3) By doing this, three purposes will be accomplished. They Address the Local Coastal Plan. The possibility of a successful change to the State Coastal Commission aqri- cultural plan would be increased. Carlsbad could prove that its agricultural program was city-wide and was supported by the City, the Regional Coastal Commission and by the local farming community. Satisfy the Requirements of LAFCO. For the County islands within the City to annex, Carlsbad must have an agricultural program. LAFCO (Local Agency Formation Commission) must approve the agricultural program before annexation takes place. Maintain the Character of Carlsbad. The Agricultural Committee feels that Carlsbad has a unique character and identity which is partially the result of its open space and agriculture. This character would be preserved if the agricultural program is implemented. An additional benefit would be that Carlsbad would have a unified program to preserve agriculture. There would be one set of standards for the entire city. The Committee has designed a three-step implementation process for the agricultural program. The steps are as follows and are explained more fully in the accompanying sections: 1) General Plan Amendment 2) City County policy Statement 3) Zoning Ordinance Amendment -2- I. GENERAL PLAN AMENDMENT n I. GENERAL PLAN AMENDMENT Two elements of the General Plan would be amended - the Land Use Element and the Open Space Element. Amending both would ensure consistency among all the elements. The purpose of amending the General Plan is to state the general goals and policies of the agricultural program within the context of other City goals and policies. Staff would process this amendment like all other GPAs. It would' be scheduled at the next available General Plan Amendment hearing and would be required to have environmental review. The amend- ments to the Land Use Element are as follows: Goal C now states: "Promote the economic viability of the agricultural and horticultural industries." This Goal would be amended to read: "Promote the economic viability of the agricultural and horticultural industries by concentrating agriculture on land with suitable soils and by encouraging development on land with less suitable soils. Suitable soils are dedined as Class 1,II or I11 based on the United States Department of Agriculture soil survey. A new Dolicv M would be added and would state: "Require all owners of land with suitable soils to participate in the agricultural program while encouraging other land with less suitable soil to voluntarily participate." A new progam would be added to Implementation (page 15- 16) to describe the agricultural program. It would state: 'I ( f ) Agricultural Program The City shall require all owners of land comprised of 50% or more Class I, 11, and 111 soils, as defined by the Soil Conservation Service, to concentrate 100% of the development potential on 50% of their property. The remaining one-half of the property shall be encumbered by an easement and shall be made available for agricultural activities. The City encourages concentration of such easements to form contiguous agricultural areas. The City also encourages all other land owners to participate in this program. The City shall offer some flexibility in development standards for all land enrolled in the agricultural program. The Planning Director shall establish guidelines for allowing flexibility in standards." -3- 4) Finally, in the Open Space Element under Agricultural lands (page 12), number 4 would be eliminated and the following substituted: "4) Class I, I1 and I11 soils will be preserved through participation in the Agricultural Program as described in the Land Use Element." 11. CITY COUNCIL POLICY STATEMENT A policy will be recommended for adoption by the City Counil to unify all parts of the Agricultural program. The policy will provide a concise statement of the objectives of the program in a form readily available to the public. The policy shall state: -4- AGRICULTURAL PRESERVATION ORDINANCE SECTIONS: I. INTENT & PURPOSE 11. APPLICATION OF CHAPTER 111. PROCESSING REQUIREMENTS IV. EXCEPTIONS V. ESTABLISHMENT OF AGRICULTURAL REVIEW BOARD VI. AGRICULTURAL DEVELOPMENT PERMIT APPLICATION VII. TRANSMITTAL TO THE PLANNING COMMISSION VIII.APPEAL PROCESS IX. GENERAL PROVISIONS X. DEVELOPMENT CRITERIA XI. PERMITTED USES XII. USES PERMITTED BY CONDITIONAL USE PERMIT I. INTENT AND PURPOSE: It is the intent and purpose of this chapter to: A. Protect land suited to agriculture and encourage B. Recognize that agricultural activities are a necessary C. Assist the continuation of healthy agricultural economy agricultural production and use where feasible; part of the character of Carlsbad; in appropriate areas. 11. APPLICATION OF CHAPTER: Compliance with the provisions of this chapter shall be mandatory for all properties, within the city of Carlsbad, comprised of a significant amount of Class I, I1 or 111 soils, as defined by the United States Department of Agriculture. All other properties shall be encouraged to utilize the provisions of this Chapter. 111. PROCESSING REQUIREMENTS: Unless specifically exempted from the requirements of this Chapter, no building permit or other entitlement shall be issued for any use or development, for any property with a significant amount of Class I, I1 or 111 soils without a valid Agriculural Development Permit approved for the property. All other properties wishing to utilize the mechanisms of this chapter shall also obtain an Agricultural Development Permit and comply with all processing requirements of this Chapter. IV . EXCEPTIONS: The following areas and uses, if permitted by the underlying zoning, are exempted from the processing requirements of this chapter: 1. 2. 30 40 5. 6. 7. 8. One single-family residential structure may be constructed or enlarged on any residentially zoned lot where no new lots are created; Off ice buildings; Commercial uses; Industrial uses; Infill area: see Exhibit X; Accessory uses to agricultural operations; Properties with soils deemed not appropriate for agriculture by the Agriculture Review Board (ARB); Any other use that the Agriculture Review Board determines does not meet the intent or purpose of this chapter for agricultural reasons. V. ESTABLISHMENT OF THE AGRICULTURAL REVIEW BOARD: This Chapter does hereby establish an Agricultural Review Board. The board will comprised of no more than five (5) Carlsbad residents appointed by the City Council for a period of two (2) years. Members of the board shall be knowledgable in the field of agriculture. The purpose of the board shall be to determine exemptions, to grant Agricultural Development Permits and act in an advisory capacity to the Planning Commission on agricultural matters on developments requiring discretionary actions to which the provisions of this chapter are applicable. VI. AGRICULTURAL DEVELOPMENT PERMIT APPLICATION: All landowners with properties containing a significant amount of Class I, I1 or I11 soils shall make application to the Agricultural Review Board and obtain an Agricultural Development Permit prior to any request for entitlements or discretionary approvals. The Planning Director shall prescribe the form for applications for an Agricultural Development Permit and type of information to be submitted. The application, after payment of required fees shall be filed with the Planning Director. The City Council shall establish an appropriate fee schedule for permits and appeals. VII. TRANSMITTAL TO THE PLANNING COMMISSION: For all developments requiring descretionary action by the Planning Commission, the Planning Director shall transmit the application, together with his recommendation and the recommendation of the Agricultural Review Board, to the Planning Commission when all necessary reports and processing have been completed. No application, for discretionary action by the Planning Commission, shall be accepted for lands containing a significant amount of Class I, I1 or I11 soils without a valid Agricultural Development Permit approved for the project. When an application is relative to another discretionary permit, it may be considered by the Planning Commission concurrent with their consideration of the discretionary permit. The Planning Director shall notify the applicant of the date and place at which the Commission will consider the matter at least seven (7) days prior to such consideration. VIII.APPEAL PROCESS: All actions of the Agricultural Review Board shall be directly appealable to the City Council. The determination of the City Council shall be final. IX. GENERAL PROVISIONS: Properties comprised of a significant amount of Class I, I1 or 111 soils, and requesting any entitlements from the City of Carlsbad, shall be subject to the following provisions: X. 1. The applicant shall offer for dedication an open space easement, to the city of Carlsbad, for agricultural purposes. This easement shall encompass the portion of the property containing the suitable soils as determined by the Agricultural Review Board. The responsibility for maintenance of the easements shall remain with the property owner. this chapter shall be entitled to the full development rights of the underlying zone for the entire property. The property owner shall have the option of developing to the full potential on the unencumbered portion of the property or developing to a portion of the overall potential and reserving the remaining development rights for future use. 3. The open space easements shall be concentrated wherever possible. 4. Properties complying with the processing requirements of this chapter may be considered for modification of these development standards only; height, coverage, setbacks. The Planning Director shall establish guidelines for modification of these development standards. The approval of these modifications shall rest with the final decision- making body of the requested action. reason of lack of maintenance become a public nuisance, the City shall have the right to maintain the property at the expense of the property owner. 2. Properties complying with the processing requirements of 5. Should an agricultural easement remain unused and by DEVELOPMENT CRITERIA: In granting an Agricultural Development Permit and in making recommendations to the Planning Commission regarding a proposed development, the Agricultural Review Board shall consider the following: 1. 2. 3. 4. 5. 6. 7. 8. Prior leasing of land for agricultural purposes; Concentration of agricultural easements; Access to the land; Provision of suitable soils for agriculture; Availability of water and fertilizer; Suitability of the property for agricultural purposes; i.e. terrain, climate; Provision of suitable buffers (walls, fences, open areas, roads ) ; Compatibility with all surrounding potential and existing land uses . XI. PERMITTED USES: uses and chapter: 1. 2. 3. 4. 5. 6. 7. 8. 9. Within an established agricultural easement, only the following structures are permitted subject to the provisions of this Crop production; Floriculture; Greenhouses less than two thousand square feet; Nursery crop production; One horse for each ten ( 10) thousand square feet in the easement provided; however, that any such horse may be kept only if it is fenced and stabled so that at no time is it able to graze, stray or roam closer that fifty (50) feet to any building used for human habitation, other than buildings on the lot or lots, and as to those buildings, no closer than forty (40) feet; Roadside stands for display and sale of products produced on the same premises, provided that the floor area shall not exceed two hundred (200) square feet and is located not nearer than twenty (20) feet to any street or highway; Tree farms ; Truck farms; Other uses or enterprises similar to the above customarily carried on in the field of general agriculture. XII. USES PERMITTED BY CONDITIONAL USE PERMIT: Subject to the provisions of chapters 21.42 and 21.50, the following uses are permitted by conditional use permit: 1. 2. Cattle, sheep, goats and swine production, provided that the number of any one or combination of said animals shall not exceed one animal per half acre of lot area. Said animals shall not be located within fifty (50) feet of any habitable structure, now shall they be located within three hundred (300) feet of a habitable structure on an adjoining parcel zoned for residental uses, nor shall they be located within one hundred (100) feet of a parcel zoned for residential uses when a habitable structure is not involved. In any event, the distance from the parcel zoned for residential uses shall be the greater of the distances so indicated. Poultry, rabbits, chinchillas, hamsters and other small animals, provided not more than twenty five (25) of any or combination thereof shall be kept within fifty (50) feet of any habitable structure, nor shall they be located within one hundred (100) feet of a parcel zoned for residential uses when a habitable structure is not involved. In any event, the distance from the parcel zoned for residential uses shall be the greater of the distances so indicated; 3. Wildlife refuges and games preserves; 4. Other uses or enterprises similar to the above customarily carried on in the field of agriculture. END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS MEMORANDUM DATE : TO: FROM : SUBJECT: September 9, 1981 Mayor Packard and City Council Members Agricultural Advisory Committee AGRICULTURAL PROGRAM The City Council formed the Agricultural. Advisory Committee in December 1980. The Committee's primary responsibility was to recommend an agriculture program which would be acceptable to the City, the Coastal Commission and the local farming community. The Committee agreed upon an outline of an agricultural program. The City Council presented this program to the Regional Coastal Commission in March 1981. The Regional Conmission approved the program for the city of Carlsbad and a similar one presented by the County of San Diego for the San Dieguito area. Both the City's and the County's agricultural programs were rejected by the State Coastal Commission in June 1981. A program based on the transfer of development rights was approved but was not acceptable to the City or the farming community. The Agricultural Committee believes that there is a need to implement the original program they recommended on a city-wide basis. are : 1) 2) 3) By doing this, three purposes will be accomplished. They b *. Address the Local Coast'al Plan. The possibility of a successful chanqe. to the State Coastal Commission agri- cultural plan would ,be increased. Carlsbad cou1d"prove that its agricultural program wa9 -city-wide and was supported by the City, .,the Regional Coastal Commission and by the local farming community. Satisfy the Requirements of LAFCO. For the County islands within the City to annex, Carlsbad must have an - agricultural program; LAFCO (Local Agency Formation Commission) must approve the agricultural program before annexation takes place. Maintain a Viable Agricultural Economy. This agricultural program is intended to provide a unified, city-wide method of ensuring the most viable ,? agricultural economy. There would exist one set of standards for the entire city. Also the lands best -a0 .I \ + 0 L I suited for agriculture would be preserved thus providing the best conditions for production. An additional benefit would be the retention of Carlsbad's unique character and identify which is partially the result of its open space and agriculture. The Committee and City staff have designed a three-step imple- mentation process for the agricultural program. The steps are as follows and are explained more fully in the accompanying sections: 1) General Plan Amendment 2) City County Policy Statement 3) Zoning Ordinance Amendment .. I- GENERAL PLAN AMENDMENT .. Io GENERAL PLAN AMENDMENT Two elements of the General Plan would be amended - the Land Use Element and the Open Space Element. Amending both would ensure consistency among all the elements. The purpose of amending the General Plan is to state the general goals and policies of the agricultural program within the context of other City goals and policies. Staff would process this amendment like all other GPAs. It would be scheduled at the next available General Plan Amendment hearing and would be required to have environmental review. The amend- ments to 1) the Land Use Element are as follows: Goal C now states: "Promote the economic viability of the agricultural and horticultural industries." This Goal would be amended to read: "Promote the economic viability of the agricultural and horticultural industries by concentrating agriculture on land with suitable soils and by encouraging development on land with less suitable soils. Suitable soils are defined as Class 1,II or I11 based on the United States Department of Agriculture soil survey. A new policy M would be added and would state: "RFquire all owners of land with suitable soils to participate in the agricultural program while encouraging -owners with land of less suitable soil to voluntarily participate. 'I - A new progam would 6e added to lbplementation (page 15- 16)' to describe the agricultural program. It would state : I*( f) Agricultural Program The Zoning Ordinance shall be amended to state that if an owner has land with a significant amount of Class I, I1 or I11 soils, as defined by the United States Depart- ment of Agriculture, he -must participate in the agricul- tural program. Also, land meeting this criteria shall concentrate 100% of their development potential on the portion of their land not having the suitable soils. All plans- proposed - for such land shall be reviewed by an Agricultural Review Board prior to regular processing. That land which is not developed will be encumbered by an offer by the applicant to dedicate an open space easement to the City. Maintenance of the easement will be the responsibility of the project applicant. Efforts will be made to consolidate all the easements of adjoining areas into a contiguous agricultural area. The City Council shall develop guidelines for offering the applicant flexibility in development standards. 4) Finally, in the Open Space Element under Agricultural Lands (page 12), number 4 would be eliminated and the following substituted: "4) Class I, I1 and I11 soils will be preserved through participation in the agricultural program as described in the Land Use Element." h \ .. "' 11. CITY COUNCIL POLICY STATEMENT A policy will be recommended for adoption by the City Counil to unify all parts of the agricultural program. The policy will provide a concise statement of the objectives of the program in a form readily available to the public. The policy shall state: ” ”‘ ' CITY OF CARLSBAD Poli'cy NO . Date Issued Effective Date Cancellation Date Supersedes No. COUNCIL POLICY STATEMENT General Subject: Specific,Subject: .. Copies to: City Council, City Manager, City Attorney,' Department and ,Division Heads, Employee Bulletin Boards, Press File Purpose .To establish a policy that will preserve the unique character of Carlsbad's agricultural economy; to preserve the best natural re- . sources; and to encourage -agriculture .by all feasible means. Background Traditionally .Carlsbad has had a s*rong agricultural economy due to . its mild coastal climate and unique land forms. Flowers, fruits and vegetables can be grown all year and shipped to the rest of the country. example, the north county area of San Diego has -1 produced 6% of the nation's tomato crop 'on 3% of the available 0 ' farmland. However, as the City develops and more pressure is brought to bear upon what was once productive farmland, a special policy must be implemented by the City Council. One,purpose of this policy is to preserve the best agricultural soils. This is necessary, according to the Agricultural Advisory Committee, to preserve the most crucial of all the natural resources necessary for continued agriculture. Preservation is needed as local agriculture shifts from an export business to a Local business producing goods for the local market. Procedures for Agriculture 'Program The City shall require all owners of land comprised of a significant amount of Class I, I1 or 111 soils, as defined by the USDR, to concentrate up to 100% of the develbpment otential on the The development pokential shall be calculated on he entire acreage. The remaining one-half of the property shall-be encumbered by an '. . easement and shall be made available for agricultural activites. Property owners shall concentrate such easements to form contiguous agricultural areas. All other land owners are encouraged to participate in this program. The City shall offer some flexibility in development standards for all lands participating in the a Agricultural Program. The City Council shall adopt appropriate ordinances to establish guidelines for allowing flexibility in the standards. A 50% of their property which is less suitable fo Ggriculture. .I. AGRICULTURAL PRESERVATION ORDINANCE ' SECTIONS I. .II. 111. IV. V. VI. VII. ' VIII. IX. X. XI XII. XIII. XIV. xv . XVI . XVII. XVIII. INTENT & PURPOSE APPLICATION OF CHAPTER EXCEPT1 ONS AGRICULTURAL DEVELOPMENT PERMIT APPLICATION MAILING NOTICE OF DECISION OF AGRICULTURAL REVIEW BOARD TIME FOR APPEAL . TRANSMISSION OF RECORD TO THE, CITY COUNCIL APPEAL HEARING DECISION OF CITY COUNCIL TRANSMITTAL TO THE PLANNING COMMISSION ESTABLISHMENT OF THE AGRICULTURAL REVIEW BOARD REGULAR & ADJOURNED .MEETINGS DUTIES OF THE AGRICULTURAL REVIEW BOARD SPECIAL EXEMPT1 ONS GENERAL PROVISIONS DEVELOPMENT CRITERIA PERMITTED USES USES PERMITTED BY CONDITIOXAL USE PERMIT & I. INTENT AND PURPOSE: It' is the intent and purpose of this chapter to: A. Protect land suited to agriculture and encourage B. Recognize that agricultural activities are a necessary C. Assist the continuation of healthy ag'ricultural economy agricultural production and use where feasible; part of ,the character of Carlsbad; in appropriate areas. 11. APPLICATION OF CHAPTER: Compliance with the provisions of this Chapter shall be mandatory for a11 property, other than those zoned industrial and commercial, comprised of a significant amount of Class I, I1 or I11 soils, as defined by the United State Department of Agriculture. An owner of 'any other land may utilize the provisions of this Chapter. 111. EXCEPTIONS: A. The following uses, if permitted by the underlying zone: 1. One single-family residential structure may be constructed or enlarged on any residentially zoned lot where no new lots are created; 2. Off ice buildings ; 3. Accessory uses to agricultural operations, as permitted by this Chapter; B. The following areas: All landowners with properties containing a significant amount of Class I, I1 or I11 soils shall make application to the Agricultural Review Board, established by this Chapter, and obtain an Agricultural Development Permit prior to any request for entitlements or,discretionary approvals. No decision-making body shall take action to authorize any entitlements without a valid Agricultural Development Permit approved for the property. Other developments utilizing the provisions of this Chapter shall also obtain an Agricultural Development Permit. Application for an Agricultural Development Permit shall be made to the Agricultural Review Board through the Planning Department in accordance with the procedures set forth in this Chapter. A. An application for an Agricultural Development Permit may be made by the record owner or owners of the property on which the project is proposed. The application, after payment of required fees, shall be filed with the Planning Director. B. Applications shall be filed upon forms provided by the Planning Director and shall be accompanied by plans in sufficient detail to allow review pursuant to this Chapter, a legal description of the property involved and an explanation and description of the proposed project. The Planning Director shall prescribe the form and content for such applications. C. The application shall be accompanied by drawings indicating the site plan of the proposed development. The site plan shall indicate topography and the portion of the property ,to be reserved for agricultural purposes. D. The City Council shall, be resolution, establish an appropriate fee schedule for permits and appeals. VI. EFFECTIVE DATE OF ORDER FOR AGRICULTURAL DEVELOPMENT PERMIT OR EXEMPTION TIME FOR APPEAL: The order of the Agricultural Review Board in .granting or denying an Agricultural Development Permit or exemption shall become final and effective ten (10) days after the rendering of its decision unless within such ten (10) day period an appeal in writing is filed with the City Council by either an applicant or opponent. The filing of such appeal, within such. time Limit, shall stay the effective date of the order of the Agr'icultural Review Board until such time as the City Council has acted on the appeal as hereafter set forth in this title. The determination of the City Council shall be final. VII. TRANSMISSION OF THE AGRICULTURAL REVIEW BOARD'S RECORD TO THE CITY COUNCIL: Upon receipt of a written appeal filed with the City Council by the applicant or opponent, as provided in this chapter, the clerk of the City Council shall advise the secretary of the Agricultural Review Roard who shall transmit to said clerk of the City Council the complete record of the case. VIII. APPEAL -- HEARING : Within and not to exceed sixty (60) days following the receipt of the written appeal the City Council shall conduct a public hearing, public notice of which shall be given as provided in Chapter 21.54. IX. DECISION OF CITY COUNCIL: The City Council may grant, deny or modify, subject to such conditions or limitations that it may’ impose, the Agricultural .Development Permit. Any action by the City Council shall be final and conclusive; provided, however, that any action reversing the decision of the Agricultural Review Board on such matters shall be by the affirmative vote of at least three members of the City Council. X. TRANSMITTAL TO THE PLANNING COMMISSION: For all developments requiring discret.ionary action by the Planning Commission, the Planning Director shall transmit the application, together with his recommendation anQ the recommendation of the Agricultural Review Board, to the Planning Commission when all necessary reports and processing have been completed. No application, for discretionary action by the Planning Commission, shall be accepted for lands containing a significant amount of Class I, I1 or I11 soils without a valid Agricul.tura1 Development Permit approved for the project. When an application is relative to another discretionary permit, it may be considered by the Planning Commiss,ion concurrent with their consideration of the discretionary permit. The Planning Director shall notify the applicant of the date and place at which the Commission will consider the matter at least seven (7) days prior to such consideration. XI ESTABLISHMENT OF THE AGRICULTURAL REVIEW -BOARD: An Agricultural Review Board is hereby established to consist of five (5) members to be appointed by a majority vote of the City Council, and a sixth member to be a Planning Commissioner appointed by the Planning Commission. The first board to b’e appointed shall, at its first meeting, so classify its members by lot, that one shall serve for a term to .expire in one year, two shall serve for terms to expire in one year and six months and two shall serve for terms to expire in two years. The representative member of the Planning Commission shall serve for a term of one year. At the expiration of each of the terms .so provided for, a successor shall be appointed by a majority vote of the City Council, for a term of two years. Each successive Planning Comrnission member of the Agricultural Review Board shall serve for a term of one year. The Agricultural Review Board shall - adopt rules of procedure and shall select a chairperson from among its members, who shall act as presiding officer. Vacancies on the Agricultural Review Board, other than by expiration 'of term, shall be filled by appointment by a majority vote of the City Council for the unexpired portion of the term. Each member shall serve until reappointed or a successor is appointed and qualified. A majority vote of the City Council shall be required to appoint or remove a member of the Agricultural Review Board. .Members of the Agricultural Review Board shall be residents of the city and shall be knowledgable in thk field of agriculture. The representative Planning Commission member of the Agricultural Review Board shal.1 act as liason between the Agricultural Review Board and the Planning Commission. No other person shall be appointed to the board who holds any salaried office, employment or appointive position with this city. XII. REGULAR AND ADJOURNED MEETINGS: , A regular meeting shall be held at least once a month, or more often if the Agricultural Review Board may by rule adopt. Any meeting held pursuant to rule of the Agricultural Review Board, or any special meeting advertised as a public hearing, shall be deemed a regular meeting. The Board may adjourn any regular meeting from time to time to meet at a time and place specified at the regular meeting and any such adjourned meeting shall be deemed to be a regular meeting. XI11 . DUTIES OF THE AGRICULTURAL REVIEW BOARD: The Agricultural Review Board shall determine the order of business of its meetings. A majority of the members of the Board shall constitute a quorum for the transaction of business. The Board, as provided by this Chapter, shall .determine exemptions, grant Agricultural Development Permits and act in an advisory capacity to the Planning Commission and City Council on agricultural matters on developments requiring discretionary actions to which the provisions of this chapter are applicable. XIV. SPECIAL EXEMPTIONS: . The Agricultural Review Board shall have the authority to grant ,special exemptions from this Chapter for any-property which, for agricultural reasons, does not meet the intent or purpose of'this Chapter or for any use which does not preclude the fulfillment of the intent of this Chapter. XV GENERAL PROVISIONS : Properties comprised of a significant amount of Class I, I1 or I11 soils, and requesting any entitlements from the city of Carlsbad, .shall be 1. 2. 3. 4. 5. subject to the following provisions: The applicant shall offer for dedication, to the city, an open space easement for that portion of the subject property with soils suitable for agriculture as determined by the Agricultural Review Board. The city shall have no responsibility to maintain, improve or farm the land subject to the easement. Properties complying with the processing requirements of this Chapter shall be entitled to the full development rights of the underlying zone for the entire property. Potential density of a project shall be calculated based on the entire property and concentrated on that portion of the property unencumbered by the open space easement. The open space easements shall be concentrated wherever possible. Properties complying with the processing requirements of this Chapter may be considered by the Planning Commission for modification of these development standards only; height, coverage, setbacks. The Planning Commission shall establish guidelines for modification of these development standards. Should an agricultural easement remain unused and by reason of lack of maintenance become a public nuisance, the city shall have the right to maintain the property at the expense of the property owner. XVI. DEVELOPMENT CRITERIA: In granting an Agricultural Development Permit and in making recommendations to the Planning Commission regarding a 'proposed development, the Agricultural Review Board shall consider the following: L 1. 2. 3. 4. 5. 6. 7; 8. Prior leasing of land for agricultural purposes; Concentration of agricultural easements: Access to the land; Provision of suitable soils for agriculture; Availability of water and fertilizer: Suitability of the property for agricultural purposes; i.e. terrain, climate; Provision of suitable buffers between agricultural easements and other developments (walls, fences, open areas, roads) ; Compatibility with all surrounding potential and existi'ng land uses. XVII. PERMITTED USES: Within an established agricultural easement, only the following chapter: .uses and structures are permitted subject to the provisions of this 1. 2. 3: 4. 5. 6. 7. 8. 9. 10. Storage shed less than 400 square feet in size; Crop production: Floriculture; Greenhouses less than two thousand square feet; Nursery crop production; One horse for each ten (10)’ thousand square feet in the easement provided; however, that any such horse may be kept only if it is fenced and stabled so that at no time is it able to graze, stray or roam closer that fifty (50) feet to any building used for human habitation, other than buildings on the lot or lots, and as to those buildings, no closer than forty (40) feet; Roadside stands for display and sale of products produced on the same premises, provided that the floor area shall not exceed two hundred (200) square feet and is located not nearer than twenty (20) feet to any street or highway: Tree farms ; Truck farms : Other uses or enterprises similar to the above customarily carried on in the occupation of general agriculture. , .. XVIII .USES PERMITTED BY CONDITIONP-L USE PERMIT: Subject to the provisions of chapters. 21.42 and 21.50, the following uses are permitted by conditional use permit: - -. 1. Cattle, sheep, goats and swine production, provided that the numb.er of any one or combination of said animals shall not exceed one animal per half acre of lot area. Said animals shall not be located within fifty (50) feet of any habitable structure, now shall they be located within three hundred (300) feet of a habitable structure on an adjoining parcel zoned for residental uses, nor shall they be located within one hundred (100) feet of a parcel zoned for residential uses when a habitable structure i.s not involved. In any event, the distance from the parcel zoned for residential uses shall be the greater of the distances so indicated. animals, provided not more than twenty five (25) of any or combination thereof shall be kept within fifty (50) feet of any habitable structure, nor shall they be located within one hundred (100) feet of a parcel zoned for residential uses when a habitable structure is not involved. In any event, the distance from the parcel zoned for residential uses shall be the greater of the distances so indicated: 2. Poultry, rabbits, chinchillas, hamsters and other small 3. Wildlife refuges and games preserves; 4. Packing sheds in excess of 400 square feet; 5. Labor housing; 6. Other uses or enterprises similar to the above customarily carried on in the field of agriculture. END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS . DiVELOPMENTAL SERVICES 1200 ELM AVENUE CARLSBAD, CALIFORNIA woos 3 Assistant City Manager (714) 438-5596 El Building Department (714) 438-5525 0 Engineering Department (714) 438-5541 n Housing & Redevelopment Department (714) 438-5611 0 Planning Department (714) 438-5591 October 5, 1981 Frank Aleshire, City Manager 1200 Elm Avenue Carlsbad, California 92008 Dear Mr. Aleshire: During the nine months that the Carlsbad Agricultural Ac?visory Committee has been in operation, the Agricultural Subsidy Program a3 mandated by the Carlsbad Local Coastal Plan has beo,n discussed any times I There is no questisn in my mind, and in those of the other diverse qricultural interests who served OR the Carlsbad Aqricultzral Advisory Committee, that the preservation progrxn mandated by the Local Coastal Plan is a disaster for agricc;zItare in the short and lc~g terms. The Agricultural Subsidy Progrm compIetzl.>T fails to recognize: 1) the uniqueness of local agriculture; 2) the historical and future foms of local agricultures; and 3) the fundamental resources necessary to support prcfitabie fooc-? production. If local agricultare is to have any possible chance of long-term survival, it must sperate on preferred soils which, in our case, is Class III or bettr?r. These soils provide a higher probabil-ity of prcr:' to today's farrners in what is already a fragile r:czrno~nic sifilation and consistently produce 20-30% higher yields. r. The Agriclzltural SuSsidy program as nandated by the 1,ocal Coastal Pian is b.?.sed on the preservation of Class IV and poorer soils. The false lnriucement of a subsidy fund or agricultural inprovexent fund cannot hide these Sasic facts. Class I11 soils or better zre the only resources which can encourage agricultural survival in the future. For the purposes of encouraging agriculture in the future, it is imperative that " quality soils be preserved, not quantity of acres. Mr. Frank Aleshire October 5, 1981 Page 2 The Agricultural Advisory Committee has, therefore, developed an agricultural program based on the przservation of Class TI1 or bet.ter soils. We believe this progrzn offers the best chance for the survival of agriculture. This progra??. will be presented to the City Council at the October 13th meeting. Our comments on the proposal by the State Coastal Conservancy are identical to our comments on the Local Coastal Plan. No meaningful short or long term goal 03 the behalf of agriculture can be accomplished by the Agricultural Subsidy Prograi. The Agricult-ural Advisory Com.ini-ttee will not support this program. Thank you for the opportunity to cominent on the letter from the State Coastal Conservancy. We would appreciate it if you would ensure that copies of this letter are distributed to the City Council before the October 13th meeting. Sincerely, PETER G. MACKAUF, Chairman Carlsbad Agricultural Advisory Committee PGM : JC : ms END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS .r . t MEMORANDUM DATE : November 2, 1981 TO: Agricultural Advisory Comm FROM : Catherine D. Nicholas, Planning Department SUBJECT: AGRICULTURAL ADVISORY COMMITTEE MEETING MONDAY, NOVEMBER 9, 1981 PLANNING/ENGINEERING CONFERENCE ROOM 7:OO - 9:00 pm ittee On October 13, 1981, the Agricultural Advisory Committee and city staff presented the committee's recommended Agricultural Program to the City Council for discussion and direction. Considerable public testimony and Council discussion addressed the differences .in the committee's proposal and the Coastal Commission's subsidy program and the resultant confusion for affected property owners, possible discouragement of annexations into the city, the future of the agricultural easements, the affect of the program on city slope policies and the extent of the city's commitment to pre- serving agriculture At the conclusion of the discussion, the City Council referred the proposed agricultural policy back to the Agricultural Advi- sory Committee for refinement and the preparation of alternatives to the program. The Council directed that the committee specifi- cally prepare a modified alternative to the program which applied only to the coastal zone. Please plan to attend the meeting and cone prepared with sugges- tions for alternatives to the program. We will discuss policy and direction for the committee and a range of alternatives for City Council consideration. Some possible alternatives have been outlined on the attached agenda: staff will provide more detailed information at the meeting. If you have any questions or cannot attend, please call me at 438-5591. CDN : wl END OF PREVIOUS DOCUMENT. ANOTHER DOCUMENT FOLLOWS . ... DEVELOPMENTAL SERVICES 0 Assistant City Manager (7 1 4) 436-5598 0 Building Department (714) 438-5525 0 Engineering Department 0 Housing a Redevelopment Department (714) 438-5541 (714) 438-5611 0 Planning Department (714) 43&65Q1 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 MEETING ANNOUNCEMENT TO: AGRICULTURAL ADVISORY COMMITTEE DATE: MONDAY, NOVEMBER 9, 1981, 7 PM; LOCATION : CARLSBAD CIVIC CENTER PLANNING CONFERENCE ROOM AGENDA I. Review City Council direction of October 13, 1981. 2. Consider alternative agricultural programs for amendment of Carlsbad LCP, including : %?a L /5-c 5 P”- a. Original LCP submittal (city); b. San Dieguito LCP submittal (county); .4’’s#;’ dp’,@’d./-‘ c. / Modificat ons to Advisory Committee recommendations. d. /,d. -;L-&j T-‘g 3. LCP amendment proce ures 4 . Adjournment CDN : wl CITY OF CAFGSBAD AGRICULTURAL ADVISORY COMXITTEE NOVEMBER 9, 1981 1) ' 'Retu'rn' :td 'Or'igin'al LCP Submittal (attachment A) A) 50/50, with density transfer for class I to I11 soils. . B) "Impacted" agricultural designation for class IV to .. VIII. Conversion criteria, emphasize conversion nearest services, on periphery first. 2) ' 'S'ubm'it' San .Die'g.u'ito ZCP, or Variation (attachment B) .. .. A) Impacted Agriculture: Infill areas; develop conversion criteria. B) Emphasize mixed use ''PAD" approach: 1) Placid Oil/Ecke- 2.8 du density calculation on entire property, exclusive of wetlands, steep slopes. Cluster on lk3, least agriculturally suited lands. No specific mention of soil types. 2) County to develop "continued feasibility criteria in "implementation phase. 'I 3) ' Nixed' Use: Remaining agricultural lands subject to "appropriate restrictions as a condition of development." 4) ' -Seabl,uff- Prope.r.ty: Overall density based on Carlsbad General Plan; cluster on 40% of land, subject to "appropriate control mechanism" on remaining agricultural lands. 5) ' 'Use Seabluff Prop'e'rty Conditions and other acceptable comments of San Dieguito LCP (attachment B, p.10) . 6) ' M6dify Subsidy Pro'g'r'am: (attachment C) 1) Allow for payment into program by those developers willing to pay. 2) Advise other owners not to accept payment, but may be voluntary. 3) Use improvement funds to construct and maintain farmers market complex near Poinsettia, Andersons or other appropriate location. Consider other uses (reclaimed water, access, loans, etc. 4) Increase portion of fund allocated to improvements; consider purchase of land leases (5 years +); consider purchase of land in fee. 7) Use - Traditional. Zoning. (attachment D) Allow mixed use on presently incorporated properties. Maintain agriculture/estate type designations - on properties as they annex to city. Amend city E-A zone to allow smaller parcel lines 1 1/2,. 2 to 5 acres). Encourage continued agricultural uses. Allow eventual development of area into large lot equestrian/agriculture type estates. Amendment to city E-A zone (smaller lots), and existing Coastal Commission zoning uses (modify to allow smaller lot splits) would allow this type of program. Use in conjunction with subsidy program, or consider non-participation in subsidy program. 8) Modify- Agricultural- Advisory- Committee's Program Apply to coastal zone only. Modify program to allow properties with slopes in excess of 25% or other areas of environmental constraint credit towards required easement. Apply on a voluntary basis. Set a timetable for review or proqram expiration; 1) allow easements to revert to developable property. Develop partial density on 1/2 of property and reserve future development rights; 2) Allow alternatives uses in easements after agriculture no longer econmic; 3) Establish criteria for determining economically feasibility and devise a phase-out- plan Increase exemptions x Expand program to include Class IV soils.