Offsetting Agricultural Land Loss Stemming from New Development
Nicole L. Byrne (author), Tegan Jarchow, Dylan Gillis, Jonathan Rosenbloom, Claire Child, Lihlani Nelson, & Laurie Beyranevand (editors)INTRODUCTION
Every hour, 180 acres of farm and ranch are lost to development for other uses.[1] This equates to over 30 million acres since 1982 – about the size of Mississippi.[2] In addition, 1.7 billion tons of topsoil are lost every year through erosion.[3] The American Farmland Trust (AFT) predicts that the U.S. will lose another 6 million acres of viable farmland in the next several years.[4] A significant contributor to the loss of farmland is sprawling and, at times, inefficiently planned housing and commercial development.[5] Local governments can mitigate the loss of farmland through offset requirements that mandate developers to purchase agricultural land elsewhere in the locality when lost due to the development.
Ordinances requiring offsets can mitigate the effects of developing farmland while also discouraging further development of farmland due to the heightened economic burden. Many offset ordinances establish a 1:1 ratio of agricultural land lost to agricultural land purchased for preservation and mitigation purposes.[6] Some programs also provide for mitigation in-lieu fees, land dedication or agricultural easements, or land mitigation banking (for more information about how local governments can develop these fees, see our brief on Cost of Services Studies for All Developments in Agricultural Areas).[7] Instead of a simple 1:1 ratio, some ordinances “take into account agricultural land quality, distance from proposed development, and additional mitigation land requirements for ‘buffer’ zones or other special uses.”[8] A few local government ordinances even create a 3:1 or 2:1 ratio of mitigation land to developed land.[9] In these ordinances, local governments may also set a limit on the distance between the developed agricultural land and the mitigated land. This may accomplish a variety of goals by controlling which lands will be set aside for agricultural uses and potentially abate nuisance claims.
Existing offsetting ordinances include several additional practices. Some ordinances explicitly identify their purpose, the mitigation ratio, and enforcement mechanisms.[10] Any ordinance seeking to mitigate lost agricultural land should clearly define the type of farmland to be preserved and “required quality of mitigation land.”[11] Additionally, it is important to designate the area where developers can purchase their offset land and which lands are subject to the ordinance. Another option is using performance criteria to avoid escalating mitigation land prices within a distinct boundary.[12] Local governments may also require developers to provide funding for monitoring of the mitigation lands, easements for maintenance, and use restrictions (such as agricultural or public parks) in perpetuity.[13] Several ordinances require mitigation to occur very early in the permitting and development process for reasons concerning risk and leverage to ensure proper offsetting.[14] Finally, these ordinances should contain clear enforcement mechanisms.[15]
EFFECTS
Losing farmland has many negative, long-term impacts. Less farmland means less opportunity for food production.[16] It is also important to maintain farmland for food production because large portions of farmlands currently go towards energy and industrial uses or exported to other countries.[17] For example, there are over 90 million acres of farmland producing corn, most of which goes toward providing livestock feed. The development of farmland negatively impacts about half of the U.S.’ protected species, who use private farm and ranch land as over 80 percent of their habitat (to learn more about a similar type of ordinance geared specifically towards protecting habitats, see our brief on Require Mitigation of Lost Critical Habitats).[18] Replacing farmland with pavement also negatively impacts clean water and air levels (see our brief on Pervious Cover Minimums and Incentives).[19] AFT found that one acre of farmland on average produces 66 times fewer greenhouse gas emissions than an acre of developed land.[20] They also found that “reducing the rate of farmland development 80% by 2050 could reduce greenhouse gas emissions equivalent to taking 1 million cars off the road.”[21]
There are also socioeconomic impacts associated with expanding development of agricultural lands. Nearly two-thirds of development over the last 25 years (largely “the expansion of urban areas and . . . low-density housing”) has occurred on farmland.[22] New farmers are “priced out” by these developments, heralding even more farmland loss as the majority of current farmland is held by those over age 55 and looking to retire at some point in the foreseeable future.[23] Those farmers are often the only ones with the resources to compete with developers over the rising land prices.[24] It is also important to note that once land is developed, it is unlikely to return to agricultural uses, essentially permanently depleting the land as an agricultural resource.[25] Protecting farmland can also preserve culture and farming heritage, provide food and energy, preserve the habitats of many threatened species, and help keep the air and water clean.[26]
EXAMPLES
Yolo County, CA
Yolo County, California, created an Agricultural Conservation and Mitigation Program that covers all land currently used for agricultural purposes or “substantially undeveloped and capable of agricultural production.”[27] The ordinance permanently protects agricultural land within the unincorporated areas of the county.[28] The ordinance requires mitigation at a 3:1 ratio when prime agricultural land is converted from agricultural to nonagricultural use, and 2:1 when converting non-prime farmland.[29] These requirements exempt certain necessary or preferred types of development, such as affordable housing projects, parks, and schools.[30] The ordinance also designates areas appropriate for mitigation.[31] Standards for appropriate agricultural conservation easement lands are set forth, including standards for soil, water, and disallowance of overlap with habitat conservation easements.[32] Yolo County defines the minimum terms that must be present in the easement instrument, such as limits on activities that will substantially impair agricultural use and the naming of the county as a “third-party beneficiary with full enforcement rights”; the easement must be created in perpetuity.[33] If a developer is unable to create an agricultural conservation easement for mitigation purposes or does so under a certain acreage, the county’s In-Lieu Agricultural Mitigation Fee goes into effect.[34]
To view this provision see Yolo County, CA, Zoning Code §§ 8-2.404-8-2.405 (2015).
San Joaquin County, CA
San Joaquin County, CA implemented an Agricultural Mitigation ordinance to preserve agricultural lands after finding that the rapid loss of exceptionally productive farmland was detrimental to its economy and that current zoning and other regulatory approaches were inadequate.[35] If the comprehensive plan “changes the designation of any land from an agricultural to a non-agricultural use” or the zoning is amended to change from agricultural to nonagricultural use, then the applicant must pay the costs associated with administering, monitoring, and enforcing a farmland conservation easement.[36] If the developer is unable to obtain the easement in good faith, an in-lieu fee will apply instead.[37] The ordinance sets forth certain standards for the land a developer can choose for the farmland conservation easement, including standards for allowable uses under current zoning, soil quality, adequate water supply, lack of previous encumbrance by a similar easement, and location within the county.[38] The ordinance also creates an Agricultural Technical Advisory Committee, reporting and enforcement requirements, and standards for the legal instrument creating an easement.[39]
To view this provision see San Joaquin County, CA, Development Title § 1080 (2006).
ADDITIONAL EXAMPLES
Arroyo Grande, CA, Ordinance Code § 16.12.170(F) (2018) (requiring agricultural mitigation be satisfied through developers purchasing a farmland conservation easement or other farmland conservation mechanism at a 1:1 ratio within city limits, but up to a 2:1 ratio when purchase is outside city limits but still within the city’s “area of environmental concern”; allowing in-lieu fee exemptions for applicants who have made a good faith effort to obtain a farmland conservation easement but have failed).
Tracy, CA, Code of Ordinances § 13.28.040 (2018) (requiring developers to pay an agricultural mitigation fee for each acre developed).
Morgan Hill, CA, Code of Ordinances ch. 18.152 (2018) (requiring developers who convert agricultural land to either offset conversion by acquisition and dedication of agricultural conservation easements with at least a 1:1 ratio, or pay the city an agricultural preservation fee to support agricultural preservation; the agricultural mitigation land cannot overlap with land acquired for the city’s habitat mitigation purposes).
Brentwood, CA, Municipal Code ch. 17.730 (2010) (creating an Agricultural Preservation Program that includes agricultural conservation easements, transferable agricultural credits, and use of in-lieu fees).
ADDITIONAL RESOURCES
Sanaz Arjomand & David Haight, Greener Fields: Combating Climate Change by Keeping Land in Farming in New York, American Farmland Trust (May 18, 2017), https://perma.cc/FT5Q-Z4HU.
CITATIONS
[1] American Farmland Trust, 2018 Farm Bill a Victory For Farmland Protection, Environmentally Sound Farming Practices and Keeping Farmers on the Land (Dec. 11, 2018), https://perma.cc/G4PW-9NWW.
[2] Id.
[3] American Farmland Trust, No Farms, No Food, Amazing Grass, https://perma.cc/63U2-BH4N (last visited May 29, 2020).
[4] American Farmland Trust, Annual Report 2017 3 (2017), https://perma.cc/5Q8V-9RAQ.
[5] American Farmland Trust, Farmland, https://perma.cc/TCG8-FVNY (last visited June 24, 2020).
[6] Philip J. Pogledich, Notice to Interested Parties and Request for Comments, Cty. of Yolo: Office of the Cty. Counsel 12, https://perma.cc/EQ2Q-KVR4 (last visited June 24, 2020).
[7] Id.
[8] Id. at 12-13.
[9] Id. at 14.
[10] Tips for Crafting Effective Farmland Mitigation Measures, CA Land Trust, https://perma.cc/RU6B-6DL8 (last visited June 24, 2020).
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] American Farmland Trust, supra note 5.
[17] Feedgrains Sector at a Glance, USDA, https://www.ers.usda.gov/topics/crops/corn-and-other-feedgrains/feedgrains-sector-at-a-glance/ (last updated Feb. 26, 2020).
[18] American Farmland Trust, supra note 5.
[19] Id.
[20] American Farmland Trust, supra note 4, at 5, see also Sanaz Arjomand & David Haight, Greener Fields: Combating Climate Change by Keeping Land in Farming in New York, American Farmland Trust 3 (May 18, 2017), https://perma.cc/FT5Q-Z4HU (attributing this rate specifically to the state of New York).
[21] American Farmland Trust, supra note 4, at 5.
[22] Carey L. Biron, New Farmers Squeezed Out as Development Alters U.S. Landscape (May 15, 2018), https://perma.cc/K8TF-M387.
[23] Id.
[24] Id.
[25] Id.
[26] See American Farmland Trust, supra note 5.
[27] Yolo County, CA, Zoning Code § 8-2.404(b) (2015).
[28] Id. at § 8-2.404(a).
[29] Id. at § 8-2.404(c)(1).
[30] Id. at § 8-2.404(c)(2).
[31] Id. at § 8-2.404(d).
[32] Id. at § 8-2.404(e).
[33] Id. at § 8-2.404(g).
[34] Id. at § 8-2.405.
[35] San Joaquin County, CA, Development Title § 9-1080 (2006).
[36] Id. at § 9-1080.3.
[37] Id. at § 9-1080.3(e).
[38] Id. at § 9-1080.5.
[39] Id. at §§ 9-1080.7-9-1080.9.