First District Publishes Significant CEQA Decision On Legal Feasibility Of Mitigation For Prime Farmland Losses In Masonite Corporation v. County Of Mendocino

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In a partially-published opinion filed July 25, 2013, the First District Court of Appeal reversed the trial court’s judgment denying a writ petition with directions that the County of Mendocino prepare and circulate a supplemental EIR for Granite Construction Company’s (Granite) terrace mining/sand and gravel quarry project adjacent to the Russian River near Ukiah. (Masonite Corporation Dist. v. County of Mendocino, et al (7/25/13, First Dist., Div. 3) ____ Cal.App.4th ____, 2013 WL 3865101.) The opinion was mostly unpublished, with the noteworthy exception of a portion addressing mitigation for loss of prime farmland, which squarely held that Agricultural Conservation Easements (ACEs) constitute legally-feasible mitigation for the direct loss of prime farmland.

Forty-five acres of Granite’s 65-acre project site are classified as “prime farmland” under the Department of Conservation’s (DOC) Farmland Mapping and Monitoring Program (FMMP), even though these lands have been zoned for industrial use by the County since 1982. The project EIR identified the loss of this prime farmland as a significant unavoidable effect, for which the County determined that no feasible mitigation was available as a matter of law. The County reasoned the lands could not be restored to agricultural use after conclusion of the mining project as they would then be below groundwater level; further, an ACE would not replace the lost lands, since ACEs address and mitigate only indirect and cumulative impacts of farmland conversion (i.e., the “domino effect” on surrounding agricultural lands) which were unlikely to occur here because the quarry project was substantially surrounded by existing and vacant industrial uses.

The Court of Appeal disagreed with the County’s reasoning and sided with the DOC and neighboring landowner Masonite, who argued that ACEs are “common and appropriate means of mitigating the loss of prime farmland” and there was therefore “‘no logical basis’ for the [County’s] conclusion that impacts to agricultural land could not be mitigated.” While the Court noted that an agency’s findings regarding the feasibility of mitigation measures are generally reviewed under the deferential “substantial evidence” standard, that was not the case here because County’s “finding of infeasibility in the EIR rested on the legal conclusion that while ACEs can be used to mitigate a project’s indirect and cumulative effects on agricultural resources, they do not mitigate its direct effect on those resources. The legal feasibility of a mitigation measure is not a question of fact reviewed for substantial evidence but rather is an issue of law that we review de novo.”

Having thus framed the issue, the Court went on to hold that “ACEs may appropriately mitigate for the direct loss of farmland when a project converts agricultural land to a nonagricultural use, even though an ACE does not replace the onsite resources.” The Court noted this “conclusion is reinforced by the CEQA Guidelines, case law on offsite mitigation for loss of biological resources, case law on ACEs, prevailing practice, and the public policy of this state.” Noting that “ACEs preserve land for agricultural use in perpetuity” (citing Civ. Code, §§ 815.1, 815.2; Pub. Resources Code, § 10211), the Court found that their use to “preserve[e] substitute resources” fits within the CEQA Guidelines’ definition of mitigation (14Cal.Code Regs., § 15370(e)), and could not meaningfully be distinguished from “offsite preservation of habitats for endangered species, an accepted means of mitigating impacts on biological resources.” The Court found further support for its conclusion in the “relatively sparse case law involving ACEs[,]” the gist of which is that while ACEs may not completely avoid a significant impact from permanent loss of prime agricultural land on a project site, they constitute a reasonable and legally-feasible means to “minimize and substantially lessen” the impact. Moreover, ACEs are, in practice, commonly used for this purpose and also further the state’s important public policy of preserving agricultural lands.

While its analogy to offsite preservation of habitats is not entirely apt, as creation is often a required component of mitigation for special status species habitat impacts, the First District’s opinion is certainly pragmatic in clarifying the law on this issue and appears, on the whole, to be well-supported and reasoned. Still, this issue ultimately seems like one decided in the gut, rather through deductive legal reasoning, and it brings to mind those ubiquitous AT&T television commercials where the man in a suit sits in a circle with a group of kindergarteners; in sum, when it comes to farmland mitigation: “It’s not complicated. More is better.”