DATE: December 12, 2023
TO: Board of Supervisors
SUBMITTED BY: Steven E. White, Director
Department of Public Works and Planning
SUBJECT: Partial Cancellation of Agricultural Land Conservation Contract No. 1326 (RLCC No. 1047 - Gerald E. Feaver)
RECOMMENDED ACTION:
TITLE
1. Consider petition for partial cancellation of Agricultural Land Conservation Contract No. 1326 filed by Gerald E. Feaver, to remove a 2.50-acre portion of a 121.29-acre parcel from the Williamson Act contract to allow the creation of a 2.50-acre homesite exception parcel for residential use; and
2. If your Board is able to make all five required findings listed under Government Code, Section 51282(b), take the following actions:
a) Adopt the Negative Declaration prepared for the Initial Study 8296; and
b) Adopt Resolution authorizing partial cancellation of Agricultural Land Conservation Contract No. 1326; and
c) Authorize the Chairman to sign the Certificate of Tentative Cancellation and approve recording the Certificate of Cancellation when all conditions included in the Certificate of Tentative Cancellation have been satisfied.
The subject parcel is located at the northwest corner of S. Armstrong Avenue and E. Lincoln Avenue, approximately one-half mile North of the nearest boundary limits of the City of Fowler (APN 340-020-76).
REPORT
This item comes to your Board with a recommendation for approval from the Agricultural Land Conservation Committee (ALCC) based on its ability to make the required Five Findings listed under Government Code, Section 51282(b). This item pertains to a location in District 4.
This petition for partial cancellation of contract No. 1326 was filed in conjunction with Pre-Application for Certificate of Compliance (PCOC) Application No. 3548 proposing to allow the creation of a 2.50-acre homesite exception parcel from a 121.29-acre parcel enrolled in the Williamson Act Program.
The Williamson Act Program limits the use of contracted parcels to commercial agricultural uses for production of food or fiber. Per the County’s Williamson Act Guidelines, parcels that are enrolled in the Williamson Act Program are required to have at least 20 acres of prime soil or at least 40 acres of non-prime soil and are used for commercial production of food or fiber to be eligible for enrollment in the Williamson Act Program.
The subject parcel is located in the AE-20 (Exclusive Agricultural, 20-acre minimum parcel size) Zone District and is designated as Agricultural in the Fresno County General Plan. Section 816.5 A.2 of the Fresno County Zoning Ordinance states that a homesite exception parcel less than the minimum acreage indicated by the district acreage designation, but not greater than 2.5 gross acres, may be permitted in the Exclusive Agricultural Zone District, if the proposed parcel meets certain criteria as defined in the Zoning Ordinance.
One criteria is that the proposed parcel is intended as a conveyance or devise exclusively for use by a person related to the owner by adoption, blood, or marriage within the second degree of consanguinity, and only for persons involved in the farming operation; the existing lot before division contains a minimum of twenty (20) gross acres; there is only one (1) lot per related person, or per related married couple, and there is no more than one lot per each twenty (20) gross acres. Since homesite exception parcels of 2.5 acres or less are created as separate parcels, they do not meet the minimum parcel size of 20-acres for Prime farmland, to remain enrolled in the Williamson Act program. Based on information provided by the applicant, the recipient of the gift-deed parcel is the sister of the property owner who will reside in the existing residence and will be involved in the farming operation
For land that is enrolled in the Williamson Act program, the landowner may convey a portion of the land as a gift-deed to a person meeting the criteria stated above. For land that has soil classified as Prime, the gift-deed parcel must be 10 acres and the parcel must be at least 20 acres and for soil classified as non-Prime soil, the gift-deed parcel must be 40 acres and the parcel must be at least 80 acres. This gift-deed provision on contracted land requires execution of a “Declaration of Intent and Acknowledgement of Potential Consequences of Unauthorized Conveyance” and a “Joint Management Agreement” to farm the parcels as one unit for the duration of the contract.
In this case, the applicant chose not to consider a 10-acre gift deed parcel and instead submitted a petition to remove the proposed 2.50-acre parcel from the Williamson Act program to create a parcel for residential use.
Should your Board determine that all five required cancellation findings listed under Government Code, Section 51282(b) can be made, the proposed petition can be approved subject to the following conditions:
1. The applicant shall obtain the necessary land use approvals to create the proposed parcels.
2. The applicant shall pay the Cancellation Fee in the amount of $18,750.00 as determined by the County Assessor and certified by the Board of Supervisors for issuance of a Certificate of Cancellation by the Board. The Cancellation Fee shall be paid, and a Certificate of Cancellation issued by the Board and recorded prior to recording the map to create the proposed 2.50-acre parcel. If the Cancellation Fee is not paid within one year of issuance of the Tentative Certificate of Cancellation, the Cancellation Fee must be re-computed by the Assessor’s Office and re-certified by the Board of Supervisors.
ALTERNATIVE ACTION(S):
If your Board determines that any of the required findings cannot be made, your Board must deny the partial cancellation of Agricultural Land Conservation Contract No. 1326.
FISCAL IMPACT:
There is no Net County Cost associated with the recommended action. The applicant paid the application fee of $3,290.00 for the cost of processing the cancellation petition.
DISCUSSION:
The proposed cancellation petition was presented to the ALCC on September 13, 2023. In its report to the Committee (Attachment F), staff indicated that they were able to make all of the five required findings listed under Government Code, Section 51282(b).
Attachment A is a location map of the subject parcel, Attachment B depicts the zoning of the subject parcel and surrounding area, Attachment C depicts the existing land use of the subject parcel and surrounding parcels, Attachment D is an aerial photograph of the subject parcel, and Attachment E is the site plan provided for PCOC No. 3548.
REQUIRED FINDINGS:
The proposed petition is being processed under the provisions of Government Code Section 51282(b), which allows your Board to grant tentative approval for cancellation of a contract if your Board can make the five findings listed under Government Code, Section 51282(b).
1. That the cancellation is for land on which a Notice of Nonrenewal has been served pursuant to Section 51245 of the Government Code.
An executed Notice of Partial Nonrenewal for Williamson Act Contract No. 1326 was accepted by the County Recorder on June 07, 2023, and was assigned Document No. 2023-0052657. Said Nonrenewal is for the 2.50-acre homesite parcel subject to this petition.
Based on the above discussion, staff informed the Committee that Finding No. 1 can be made. The Committee concurred with this position.
2. That the cancellation is not likely to result in the removal of adjacent lands from agricultural use.
The soil of the subject 121.29-acre subject parcel is classified as Prime according to the National Resources Conservation Service. The subject parcel contains an olive orchard and a vineyard. The subject parcel and the surrounding parcels are designated as Agricultural in the County General Plan, are zoned AE-20 (Exclusive Agricultural, 20-acre minimum parcel size), and are being actively farmed.
Areas of the County that are outside of the cities and unincorporated communities are primarily designated and zoned to accommodate farming and certain other land uses such as dairies, feedlots and poultry facilities that necessitate such operations to be located in sparsely populated areas of the County due to creation of dust, odor, flies as well as the need for application of herbicides and pesticides as part of the farming operation.
The proposed alternative use is to split a 2.50-acre portion of the 121.29-acre subject parcel that contains a house as a separate homesite exception/gift-deed parcel for occupancy of a person related to the owner of the parcel. As mentioned above, the parcel is in an area of the County that is designated as Agricultural and is Zoned AE-20. Typically, a “Declaration of Intent and Acknowledgment of Penalty for Unlawful Conveyance” (Declaration) is recorded which limits occupancy of a gift-deed/homesite exception parcel to a blood relative of the landowner who is involved with the farming of the parcel and prohibits conveyance of the gift-deed/homesite exception parcel to a third party. According to the applicant, the recipient of the gift-deed parcel is the sister of the property owner who will reside in the existing residence and will be involved in the farming operation. Staff notes, however under limited circumstances, the owners of homesite exception/gift deed or the owner of the farming parcel can petition the County for a release from the Declaration. The granting of any request for release is discretionary on the County’s part.
The Fresno County Interim Guidelines requires that such gift-deed parcels contain a minimum of 10 net acres of land to remain under contract. Although in this case additional acreage is available to meet this 10-acre provision to keep the gift-deed parcel under contract, the applicant has chosen to pursue a 2.50-acre parcel as provided by the County Zoning Ordinance as the maximum parcel size. Due to the proposed parcel size of 2.50 acres, the proposed homesite parcel is not eligible to remain enrolled in the Williamson Act Contract and must be removed from the Contract through the cancellation process.
Based on the above discussion, staff informed the committee that Finding No. 2 can be made. The Committee concurred with this position.
3. That the cancellation is for an alternative use that is consistent with the provisions of the County General Plan.
The existing 121.29-acre parcel is designated as Agricultural in the County General Plan and is zoned AE-20 (Exclusive Agricultural, 20-acre minimum parcel size). The Agricultural and Land Use Element of the General Plan sets goals and policies promoting the long-term conservation of productive agricultural lands. Policy LU-A.1 of the Agricultural and Land Use Element of the General Plan states that the County shall maintain agriculturally designated areas for agricultural use and shall direct urban growth to cities and unincorporated communities. General Plan Policy LU-A. 6 states that the County shall maintain twenty (20) acres as the minimum permitted parcel size in areas designated as Agricultural, with some exceptions. General Plan Policy LU-A.7 states that the County shall generally deny requests to create parcels less than the minimum size specified in Policy LU-A.6 based on concerns that such parcels would be less viable economic farming units and the resultant increase in residential density would increase the potential for conflict with normal agricultural practices on adjacent parcels.
General Plan Policy LU-A.12 requires protection of agricultural activities from encroachment of incompatible uses. General Plan Policy LU-A.13 states that the County shall protect agricultural operations from conflicts with non-agricultural uses and protection of agricultural activities from encroachment of incompatible uses.
General Plan Policy LU-A.9 states that the County may allow the creation of homesite exception parcels smaller than the 20-acre minimum parcel size if the parcel involved in the division is at least twenty acres in size, and the homesite parcel is not less than one gross acre, subject to certain conditions. One of the conditions is that the parcel to be created is intended for use by a person involved in the farming operation and is related to the owner by adoption, blood, or marriage within the second degree of consanguinity; there is only one lot per related person; and there is no more than one lot per twenty (20) acres. This policy mirrors Zoning Ordinance Section 816.5.A.2. This project entails creation of a 2.50-acre homesite parcel to be used for residential use of a person related to the owner of the parcel, as noted above.
Based on the above discussion, staff informed the Committee that Finding No. 3 can be made. The Committee concurred with this position.
4. That the cancellation will not result in discontiguous patterns of urban development.
The existing 121.29-acre parcel is located approximately one-half mile north of the nearest limits of the City of Fowler in the unincorporated area of Fresno County. The proposal to create a gift-deed parcel in and of itself does not constitute a pattern of discontiguous urban development.
Based on the above discussion, staff informed the Committee that Finding No. 4 can be made. The Committee concurred with this position.
5. That there is no proximate non-contracted land that is both available and suitable for the use to which it is proposed that the contracted land be put, or that development of the contracted land would provide more contiguous patterns of urban development than development of proximate non-contracted land.
County staff generated a list of non-contracted parcels of approximately the same size as the proposed substandard parcel within a five-mile radius of the subject parcel and utilized online tools to determine whether the parcels are for sale. In this case, a parcel approximately the same size as the proposed homesite parcel was available for sale. However, the parcel is in the M-1 (Light Manufacturing) Zone District. The M-1 Zone District does not allow for single-family residences; therefore, staff believes that the parcel is not suitable for the alternative use.
Based on staff’s research, the available non-contracted parcel of similar size within a five-mile radius is not suitable for the alternative use, and staff informed the Committee that Finding No. 5 can be made. The Committee concurred with this position.
AGRICULTURAL LAND CONSERVATION COMMITTEE RECOMMENDATION:
As stated above, at the September 13, 2023, meeting, the Committee received staff’s presentation and testimony from the applicant’s representative and after deliberation, the ALCC recommended that your Board approve the proposed petition based on the ability to make all the required five findings listed under Government Code, Section 51282(b).
PUBLIC HEARING NOTICE:
Landowners subject to a Williamson Act contract within a one-mile of the subject parcel were provided notice of both the ALCC meeting and today’s hearing per Government Code Section 51284. The notice was also published in the Fresno Business Journal, which is a newspaper of general circulation.
ATTACHMENTS INCLUDED AND/OR ON FILE:
Attachments A - G
On file with Clerk - Resolution
On file with Clerk - Certificate of Tentative Cancellation
CAO ANALYST:
Salvador Espino