Solano County Municipal Code Art. III Agricultural Mitigation Program

The purpose of this article is to create and adopt a farmland conversion mitigation program (“agricultural mitigation program” or “program”) as directed by Implementation Program AG.I-1 in the agricultural element of Solano County’s 2008 general plan. The goal of this program is to provide clear and consistent regulations to mitigate the loss of farmland due to development or conversion to nonagricultural uses in the unincorporated area of Solano County, and to promote the long-term protection, conservation, and enhancement of productive and potentially productive farmland. The mitigation requirements are further intended to ensure the commercial viability of Solano County’s agricultural industry, and support growth management policies that encourage growth in or near developed or developing areas and away from valuable farmland.

(Ord. No. 1858, §1)

For purposes of this article, certain terms used shall be defined below. The definitions set forth in Chapter 28.01 shall otherwise apply.

(a) Agricultural Conservation Easement. A perpetual easement, comparable to a conservation easement as provided for in Sections 815 to 816 of the Civil Code, or an open space easement provided for in Sections 51070 to 51097 of the Government Code, limiting the use of the encumbered land to agricultural and accessory uses, which easement is used to satisfy the mitigation obligations imposed by this article.

(b) Agricultural Land or Farmland. Those land areas of unincorporated area of Solano County, regardless of current zoning, that are identified and mapped under the current California Department of Conservation’s Farmland Mapping and Monitoring Program (FMMP) and classified as prime farmland, farmland of statewide importance, unique farmland, farmland of local importance, or grazing land. Land that is determined to be incapable of supporting the production of agricultural commodities is excluded from this definition and does not require agricultural mitigation under this article. Any such determination shall be made by the appropriate authority in consultation with the agricultural commissioner, whose recommendation shall be given substantial weight unless unsupported by evidence.

(c) Agricultural Mitigation Program. The program implemented by this article, as directed by the Solano County general plan.

(d) Agricultural Reserve Overlay. A Solano County general plan land use designation described in Table LU-5 of the general plan that encourages private landowners to voluntarily participate in agricultural conservation easements.

(e) Alternative Mitigation. Mitigation proposed under Section 2.2-350(D) to satisfy an applicant’s mitigation obligation, subject to approval by the board of supervisors.

(f) Appropriate Authority. That person, official, or body designated to hear, grant, deny, modify, condition, revoke, or otherwise act on entitlement applications as provided by Chapter 28 of the Solano County Code.

(g) Conversion. The change in general plan land use designation, zoning designation, or use of land that requires mitigation under this article as specified in Section 2.2-320.

(h) Farmland Mapping and Monitoring Program (FMMP). The California Department of Conservation’s nonregulatory program for classifying farmland quality, which prepares, updates, and maintains important farmland series maps as defined in subsection (f) of Section 65560 of the Government Code, and prepares and maintains an automated map and database system to record and report changes in the use of agricultural lands every two years on even-numbered calendar years.

(i) Farmland Mitigation Plan. The documentation required to be submitted for review and approval by the county pursuant to Section 2.2-330.

(j) Farmland of Statewide Importance, Unique Farmland, and Farmland of Local Importance. Land as identified and mapped by the FMMP classified as farmland of statewide importance, unique farmland, and farmland of local importance.

(k) Good Faith Effort. An applicant has provided documentation to establish it has:

(1) Made a thorough effort to locate quality mitigation land that provides long-term protection and conservation of substantially equivalent farmland to the land being lost to development or conversion; and

(2) Made a minimum of one bona fide offer for an agricultural conservation easement at the full appraised fair market value, but no seller has accepted the applicant’s offer, if the applicant does not already own the proposed mitigation land.

(l) Grazing Land. Lands identified and mapped by the FMMP classified as grazing land.

(m) In-Lieu Fees. Fees that the applicant pays to satisfy their mitigation obligation under this program.

(n) Mitigation Land. Land encumbered by an agricultural conservation easement or under an alternative mitigation option approved by the board of supervisors to satisfy the mitigation obligation imposed by this article.

(o) Mitigation Ratio. The replacement ratio on an acre-for-acre basis to mitigate for the conversion of farmland required under this article.

(p) Prime Farmland. Farmland identified and mapped by the FMMP classified as prime farmland.

(q) Qualifying Entity. The qualifying entity is Solano County, or another entity qualified and approved by the board of supervisors to hold agricultural conservation easements in compliance with Section 2.2-380.

(Ord. No. 1858, §1)

(a) Each of the following actions shall require mitigation as set forth in Section 2.2-330:

(1) General Plan Amendment. A general plan amendment to redesignate land from an agricultural designation to any other designation, except for redesignations consistent with general plan Land Use Policy LU.P-3 and Agricultural Policies AG.P-31 to AG.P-36.

(2) Rezoning. A rezoning petition to change the county zoning assigned to land from any agricultural zoning district to any other zoning district, as defined in Chapter 28 of the Solano County Code, except for resource conservation districts.

(3) Communication and Infrastructure Uses. An application for an administrative permit, minor use permit, or use permit for communication and infrastructure use on land within any agricultural zoning district, as defined and set forth in Chapter 28 of the Solano County Code.

(b) Exemptions.

(1) Small Parcels. Conversion of a legal parcel or a portion of a legal parcel that is less than one (1) acre in area. However, this exemption shall not apply to a parcel that is one (1) phase or portion of a larger project. The appropriate authority may disallow use of this exemption if it finds that the subject property has been subdivided into one (1) acre or smaller parcels in whole or in part to avoid the mitigation obligation.

(Ord. No. 1858, §1)

(a) Mitigation Ratio.

(1) Projects that convert prime farmland, farmland of statewide importance, unique farmland, and farmland of local importance shall be mitigated at a replacement ratio up to 3:1. This means that for every acre converted or developed, up to three (3) acres shall be protected.

(2) Projects that convert grazing land shall be mitigated at a replacement ratio of 1.5:1. This means for every acre converted or developed, one and one-half (1.5) acres shall be protected.

(3) Projects that convert land comprising a mix of farmland classifications may mitigate at the highest applicable ratio.

(4) For purposes of calculating the mitigation obligation under this section, a general plan amendment or rezone application shall require mitigation for the full area of the legal parcel affected by the conversion and not merely any lesser portion of the parcel that may be sought to be developed or converted to another use at the time conversion is proposed. An application seeking an administrative, minor use, or use permit for a communication and infrastructure use shall require mitigation only for the exact acreage within the full legal parcel to be converted.

(5) The mitigation ratio shall be determined based upon the most current published FMMP mapping and farmland classification of the land.

(Ord. No. 1858, §1)

(a) Mitigation lands shall meet the following criteria:

(1) Be assigned an agricultural land use designation under the Solano County general plan;

(2) Be assigned an agricultural zoning district under the Solano County Code;

(3) Any legal nonconforming use of the land has been or will be abandoned prior to execution of the agricultural conservation easement or, if maintained, will not interfere with agricultural use of the mitigation land;

(4) Be of adequate size, configuration, and location to be viable for continued agricultural operations and use;

(5) Be of substantially equivalent FMMP farmland classification or better compared to the land being converted;

(6) Have an adequate water supply available for continued agricultural operations and use;

(7) The mitigation land is not already subject to an encumbrance or interest that would legally or practicably prevent converting the land, in whole or in part, to a nonagricultural use, such as a conservation easement, open space easement, flowage easement, avigation easement, long-term agricultural lease, profit, or an interest in the subsurface estate that would preclude development of the surface estate. A contract entered pursuant to the Land Conservation Act, Government Code Section 51200 et seq. (Williamson Act) shall not constitute an encumbrance for purposes of this section;

(8) There are no physical conditions or contamination on the mitigation land that would legally or practicably prevent converting the land, in whole or in part, to a nonagricultural use;

(9) The mitigation land does not have an existing home, unless the land proposed for conversion includes an existing home.

(Ord. No. 1858, §1)

(a) Mitigation Methods, Generally. Farmland mitigation can be achieved through agricultural conservation easements, in-lieu fees, or alternative mitigation, subject to the requirements of this section.

(1) Twenty (20) or More Acres Converted. If the area to be converted is twenty (20) acres or more in size, the applicant shall grant an agricultural conservation easement on land located within the agricultural reserve overlay or within the same agricultural region (as designated by the agricultural chapter of general plan) as the land converted. If, after at least one (1) good faith effort, the applicant cannot locate an agricultural conservation easement on lands meeting that criterion, then the applicant shall grant an agricultural conservation easement elsewhere in the unincorporated area of Solano County. If, after at least one (1) additional good faith effort, the applicant cannot locate an agricultural conservation easement anywhere in the unincorporated area of Solano County, the applicant shall pay in-lieu fees or complete alternative mitigation to satisfy their mitigation obligation.

(2) Less Than Twenty (20) Acres Converted. If the area to be converted is less than twenty (20) acres in size, the applicant shall grant an agricultural conservation easement anywhere in the unincorporated area of Solano County, pay in-lieu fees, or complete alternative mitigation to satisfy their mitigation obligation.

(b) Agricultural Conservation Easements.

(1) An agricultural conservation easement shall be held in perpetuity by a qualifying entity.

(2) Mitigation land shall satisfy the requirements of Section 2.2-340.

(3) The board of supervisors may not approve a proposed farmland mitigation plan that includes an agricultural conservation easement unless it finds that the easement complies with each of the following requirements:

(A) The agricultural conservation easement specifies the land uses allowed on the property, and the uses are at least as restrictive as the requirements of the underlying zoning district.

(B) The agricultural conservation easement prohibits the presence, construction, or reconstruction of homes or other nonagricultural uses except within a development area designated in an exhibit accompanying the easement. Any such development area(s) shall not count towards acreage totals to satisfy the mitigation ratio. The easement shall specify that ancillary uses must be clearly subordinate to the primary agricultural use.

(C) The agricultural conservation easement prohibits the landowner from entering into any additional easement, servitude, or other encumbrance that could prevent or impair the potential agricultural use of the mitigation land.

(D) The agricultural conservation easement provides that the mitigation land will retain adequate water supply for continued agricultural operations and use.

(E) The agricultural conservation easement will be either obtained from a willing seller or voluntarily conveyed by the applicant.

(F) Any existing easement, other than a right-of-way easement, deed of trust, or other servitude or encumbrance on the mitigation land, shall be subordinated to the agricultural conservation easement.

(G) The agricultural conservation easement shall be approved by the qualifying entity that will hold the easement and executed by all parties with an interest in the mitigation land.

(H) The agricultural conservation easement is in recordable form and contains an accurate legal description of the mitigation land.

(I) The agricultural conservation easement names Solano County as an intended third-party beneficiary and authorizes it to enforce all terms of the easement, if applicable.

(J) The agricultural conservation easement recites that it is intended to satisfy the mitigation obligations imposed by this article, and that it is subject to the requirements set forth in this article.

(K) The agricultural conservation easement provides that if the qualifying entity holding the easement ceases to exist, ownership of the easement shall pass to the county, or another qualifying entity approved by the county.

(L) The agricultural conservation easement has been approved as to form by Solano County counsel.

(M) The agricultural conservation easement recites that it shall not be amended without further approval by the board of supervisors.

(4) The applicant, if applicable, shall pay the one-time price to purchase the agricultural conservation easement and all associated transaction costs (including, but not limited to, escrow, recording, title policy, appraisal, the qualifying entity’s administrative costs), plus a one-time payment sufficient to cover the costs of administering, monitoring, and enforcing the agricultural conservation easement.

(5) Extinguishment. If a court issues a judgment declaring that the purposes of this article and of an agricultural conservation easement can no longer be fulfilled by enforcement of that easement, the qualifying entity holding that easement may extinguish the easement by selling it to the fee owner of the mitigation land, if the following requirements are met:

(A) Either:

(i) The action was contested, and the judgment was not entered pursuant to stipulation, or

(ii) Solano County was a party to the action and stipulated to the judgment; and

(B) The qualifying entity shall use the proceeds of sale to acquire an agricultural conservation easement in other mitigation land meeting the requirements of this article.

(6) Excess Mitigation – Credits.

(A) At its sole option, an applicant may choose to arrange for the imposition of an agricultural conservation easement on a larger area of land than the required area pursuant to the applicable mitigation ratio and thereby generate a mitigation credit equal to the excess net acreage encumbered with the easement.

(B) Any excess area encumbered with the agricultural conservation easement shall comply fully with all requirements of this article.

(C) The administrative fee paid by an applicant choosing to create mitigation credits shall include the acreage covered by the mitigation credits. The applicant may pass that fee through to a later purchaser of the credits.

(D) Mitigation credits created under this subsection may be used to satisfy the mitigation obligation created by this article only after the board of supervisors has made the findings required by subsection (b)(3) of this section with respect to the land proposed for conversion and the mitigation land covered by the mitigation credits.

(E) The director of resource management shall maintain a ledger indicating the amount of credits created under this article, the holder of those credits, the administrative fees paid by the creator of the credits attributable to the mitigation land covered by the credits, and any subsequent transactions involving those credits.

(F) The county shall make available to any applicant who requests it the ledger of mitigation credits provided for in subsection (b)(6)(E) of this section. The county shall have no further responsibility for facilitating any private transaction involving mitigation credits.

(G) The board of supervisors may designate another approved qualifying entity to implement the credit program as set forth in this subsection.

(c) In-Lieu Fees. In-lieu fees shall be subject to the following provisions:

(1) The board of supervisors shall establish the amount of in-lieu fees on a case-by-case basis unless it has previously adopted the resolution provided for in subsection (c)(5) of this section.

(2) Any in-lieu fee shall include each of the following components:

(A) The appraised fair market value of acquiring an agricultural conservation easement on the land being converted, multiplied by the applicable mitigation ratio set forth in Section 2.2- 330. The value of the agricultural conservation easement shall be determined by an independent real property appraiser with experience valuing conservation easements for the California Department of Conservation Sustainable Agricultural Lands Conservation Program (SALC) or a similar program. The appraisal shall be completed within ninety (90) days from consideration by the appropriate authority. The appraisal shall be considered by the agricultural commissioner, who may recommend that the applicant obtain a second appraisal and return to the agricultural commissioner for consideration of the second appraisal.

(B) The applicant’s pro rata share of Solano County’s administrative costs in implementing the in-lieu fee program.

(C) All transaction costs associated with acquisition of the agricultural conservation easement.

(D) An amount sufficient to endow the cost of monitoring, administering, and enforcing the agricultural conservation easement in perpetuity, if applicable.

(E) A reasonable amount to cover additional contingencies.

(3) Resolution. As an alternative to case-by-case establishment of in-lieu fees, the board of supervisors may adopt a resolution establishing a generally applicable per acre in-lieu fee to be applied in all cases in which an applicant seeks to pay an in-lieu fee as mitigation. Such a generally applicable fee shall comply with the requirements of this section and shall include an annual adjustment for inflation.

(4) The in-lieu fees shall be paid to the county, and the applicant shall provide evidence of the payment of the in-lieu fees to the director of resource management.

(5) Use of In-Lieu Fees.

(A) The county shall ensure that in-lieu fees are held in a separate account.

(B) In-lieu fees shall be expended for the sole purpose of mitigating the loss of farmland by acquiring and managing agricultural conservation easements that meet the criteria in this article and funding the cost of implementing the in-lieu fee program.

(C) The county may either expend the in-lieu fees directly or remit the fees to another qualifying entity for the purpose of acquiring and managing agricultural conservation easements.

(d) Alternative Mitigation.

(1) The applicant may propose alternative mitigation measures that fulfill the purpose of the agricultural mitigation program and demonstrate that they will protect, preserve, or benefit farmland and the agricultural industry in the county. Alternative mitigation is wholly optional and made available solely for the applicant’s convenience. Under no circumstances shall the county require any applicant to implement any such alternative mitigation.

(2) Alternative mitigation must fulfill the purpose of this article, as specified in Section 2.2-300, and demonstrate that they will protect, preserve, or benefit farmland and the agricultural industry in the county.

(3) The total dollar value of the alternative mitigation project must be equal to or valued more than the appraised fair market value of acquiring an agricultural conservation easement on the land being converted, multiplied by the applicable mitigation ratio set forth in Section 2.2-330. The applicant shall provide documentation substantiating the total dollar value of the alternative mitigation project. The value of the agricultural conservation easement shall be determined by an independent real property appraiser with experience valuing conservation easements for the California Department of Conservation Sustainable Agricultural Lands Conservation Program (SALC) or a similar program. The appraisal shall be completed within ninety (90) days from consideration by the appropriate authority. The appraisal shall be considered by the agricultural commissioner, who may recommend that the applicant obtain a second appraisal and return to the agricultural commissioner for consideration of the second appraisal.

(4) The county agricultural commissioner shall consider and make a recommendation to the board of supervisors regarding any proposed alternative mitigation.

(5) Alternative mitigation is subject to review and approval by the board of supervisors.

(6) The applicant shall bear all the costs of the county or a third party reviewing, approving, managing, and enforcing the alternative mitigation.

(Ord. No. 1858, §1)

(a) When an applicant submits an application to the county that triggers mitigation under this article, the applicant shall concurrently submit a farmland mitigation plan. The farmland mitigation plan shall contain the following information and documentation in sufficient detail, as specified in this section:

(1) Map and calculate the applicable project acreage of the following: prime farmland and farmland of statewide importance, unique farmland, and farmland of local importance, and grazing land; and

(2) The proposed mitigation method to mitigate the conversion of agricultural land in accordance with this program.

(b) Before the application is heard by the appropriate authority, the applicant shall submit an updated farmland mitigation plan that shall contain the following information and documentation in sufficient detail:

(1) The qualifying entity that will hold the mitigation land or administer the in-lieu fees, if applicable;

(2) The acreage that would be preserved through mitigation or the amount of in-lieu fees that would be paid;

(3) The location of the mitigation land, if applicable; and

(4) The proposed agricultural conservation easement, if applicable.

(Ord. No. 1858, §1)

(a) All mitigation proposed by an applicant to comply with the agricultural mitigation program shall be reviewed by the planning commission for consistency with the terms and purposes of this article. The planning commission shall recommend approval, conditional approval, or disapproval to the board of supervisors. The planning commission shall not recommend approval of the proposed mitigation unless it finds that mitigation to be consistent with the requirements of this article.

(b) The board of supervisors shall consider the planning commission’s recommendation and shall either approve, conditionally approve, or disapprove the proposed mitigation.

(c) The county shall not issue any permit or other approval for any project involving a conversion subject to the mitigation obligation under this article unless the board of supervisors has previously approved proposed mitigation in compliance with this article. Issuance of such permit or approval shall be conditioned on the applicant’s completion of mitigation in compliance with subsection (d) of this section.

(d) Completion of Mitigation.

(1) The applicant for conversion must complete all required mitigation prior to the earliest of:

(A) Filing of any parcel map or final subdivision map, or

(B) Issuance of any building, grading, or encroachment permit.

(2) Mitigation shall be deemed complete by the director of resource management when the approved agricultural conservation easement has been recorded and the applicant has paid the required administrative fee. For in-lieu fees, mitigation shall be deemed complete by the director of resource management upon full payment. However, if the applicant elects to seek approval of an alternative mitigation option, mitigation shall be deemed complete when the director of resource management provides the applicant with a letter indicating that mitigation is complete.

(Ord. No. 1858, §1)

(a) To be considered a qualifying entity, an entity must:

(1) Be a nonprofit benefit corporation that is qualified to hold conservation easements under Section 815.3 of the Civil Code and in compliance with the requirements of Section 65965 et seq. of the Government Code, and

(2) Be approved by the board of supervisors for the purpose of holding and managing agricultural conservation easements.

(b) Approval Criteria. In considering whether to approve an entity as a qualifying entity, the board of supervisors may consider the following criteria:

(1) Whether the entity’s principal purpose includes holding and administering easements for the purposes of conserving and maintaining lands in agricultural production;

(2) Whether the entity has an established record of holding and administering easements for the purposes of conserving and maintaining lands in agricultural production;

(3) The extent and duration of the entity’s involvement in agricultural land conservation with Solano County;

(4) Whether the entity has been accredited by the Land Trust Accreditation Commission; and

(5) Whether the entity is a member in good standing of an established and widely recognized California statewide association of land trusts.

(c) No qualifying entity shall sell, lease, hypothecate, or encumber any interest in any mitigation land without the prior approval of the board of supervisors.

(d) Expenditures of Fees. A qualifying entity shall use fees provided by Solano County solely for purposes of acquiring, administering, monitoring, and enforcing agricultural conservation easements acquired pursuant to this article.

(e) Termination of Qualifying Entity. If a qualifying entity intends or reasonably expects to cease operations, it shall assign any agricultural conservation easements it holds to Solano County or another qualifying entity with the approval of the board of supervisors.

(f) Monitoring and Enforcement. The qualifying entity shall monitor the use of all mitigation land subject to agricultural conservation easements held by the entity and enforce compliance with the terms of those agricultural conservation easements.

(g) Reporting. On or before December 31st of each year after a qualifying entity is approved by the board of supervisors, the entity shall provide to the director of resource management a single annual report describing the activities undertaken by the entity under this article. That report shall describe the status of the mitigation land and/or agricultural conservation easements held by the entity, including a summary of all action taken to enforce its agricultural conservation easements, and an accounting of the use of administrative and in-lieu fees remitted to it by Solano County.

(Ord. No. 1858, §1)

1 Code reviser’s note: Ord. 1816 §3 provides: “The Interim Ordinance of the County of Solano Extending a Temporary Moratorium on the Cultivation of Processing of Industrial Hemp within the Unincorporated Areas of the County of Solano adopted by the Solano County Board of Supervisors on October 27, 2020 shall terminate concurrently with the effective date of this Ordinance, as set forth in Section 6 below.”