Final vote for draft policy postponed until April 11
Gilroy – Developers, landowners and South County officials have convinced a regional land-use agency to delay a policy that could limit the growth of Gilroy and Morgan Hill.
On Wednesday, the five-member Local Agency Formation Commission postponed a final vote on its draft farmland preservation policy until April 11, and appointed a two-person subcommittee to study controversial elements of the policy.
“I want to make sure … that we’re not going to craft policies that will violate state laws or what LAFCO has to do,” said Don Gage, a Santa Clara County supervisor and chairman of the commission. “I hear all sides of the story here. One says we can (impose the policy), the other says we can’t.”
The outcome of that debate could determine how far cities like Gilroy and Morgan Hill can spill over into surrounding farmland, and how fast they could do it.
In its current wording, the proposed regulation would require developers to preserve an acre of farmland for every acre they bring into city borders and pave over. The policy would require so-called mitigations – such as the purchase of a conservation easement or development rights on farmland – to occur within four years of annexation.
Gage’s remark came after an hour of public comment on the policy, during which a number of the 50 people at the San Jose meeting debated the agency’s powers. Pro-growth interests claim the agency is over-stepping its authority and meddling in city affairs, while LAFCO’s legal counsel and environmental advocates say the agency is pursuing its state-mandated mission to protect farmland and ensure smart growth.
“Everyone agrees that LAFCO does not have the authority to regulate land use,” LAFCO attorney Kathy Kretchmer said. “But by its nature, LAFCO policies impact land use. … Direct regulation of land use and impacting land use are two separate things. We are not requiring that land use of any property be changed. We’re only asking that agricultural land being converted away from agricultural uses have mitigation provided that protects other agricultural land.”
City leaders and members of the development community are not only questioning the agency’s authority to impose such a policy, but they say the fine print would impose onerous requirements.
Michael McDermott, a Gilroy developer who received LAFCO approval in spring to bring 26 acres of land into south Gilroy for development, said it’s unreasonable to mandate a deadline for preservation. His project, headed for land north of the new Gilroy Sports Complex, does not yet have building permits for any of its 200-plus units. Under the LAFCO policy, McDermott would have to perform mitigation within four years, even if he doesn’t receive permission to build for another decade.
“Mitigation should occur for loss of agricultural land when the land is actually lost,” he told commissioners.
Environmentalists disagree. Carolyn Tognetti, member of Save Open Space Gilroy, said the absence of a preservation deadline, combined with the ability for developers to pay “in-lieu fees” instead of finding a piece of land and preserving it, is a recipe for disaster. Some environmental advocates at the meeting suggested a graded system, in which “in-lieu” fees would be pegged to a higher preservation ratio, such as two acres for every acre developed (rather than the one-for-one ration currently proposed). Tognetti doesn’t think the policy should allow in-lieu fees as an option.
“Show us the land … so to speak,” Tognetti said after the meeting. “Developers would have to take a look and say, ‘We’d better start lining up our ducks and approach some of these landowners on the outskirts so we can continue to develop.'”
Most of the environmental advocates at the San Jose meeting – from residents of Gilroy and San Jose to leaders of major advocacy groups such as the Audubon Society and Sierra Club – agreed that LAFCO should expand its policy to cover the loss of open space and fallow farmland. The latter could prove a major sticking point.
The lack of such a measure in Gilroy’s farmland preservation policy allowed developers behind Glen Loma Ranch – a 1,693-home mini-city slated for 350 acres in southwest Gilroy – to avoid preserving a single acre of farmland. When the city applied its preservation policy to Glen Loma, the developers’ insistence that the land was fallow and no longer viable for farming tilted the scales in their favor.
Environmentalists urging the commission to make a final decision Wednesday seemed aware that they may have a tougher time broadening the policy next year, when the makeup of the commission changes. In coming weeks, San Jose’s City Council will appoint a new member to replace outgoing commissioner Linda J. LeZotte, one of the most outspoken critics of Gilroy’s growth.
And a city notorious for sprawl may be reluctant to appoint another anti-growth advocate. Jenny Nusbaum, a senior planner for San Jose, said the city believes LAFCO’s draft preservation policy would actually induce sprawl and “would conflict with our own land-use authority.”
Earlier complaints by South County have already inspired change in LAFCO’s policy. The deadline for mitigation has been effectively doubled from two to four years, and the policy only “discourages” new annexation requests when preservation has not occurred to offset prior growth. The original draft said the agency would not accept new requests until prior preservation had taken place.
Gage said he remains concerned about several areas in the policy, especially in a clause that says preservation should aim to create a “permanent” border between urban areas and farmland.
“That’s where I have my most serious concern,” Gage said. “We use the word ‘permanent.’ That policy would restrict cities from logically expanding over time. We can’t put cities in a cage.”
Gage survived an effort by LeZotte to pass him over as one of the two appointees to LAFCO’s subcommittee. He and Susan Vickland Wilson, a citizen appointee to the commission, will serve on the subcommittee. It is expected to hold public hearings for input from city leaders, developers and environmental advocates. Gage and Wilson will report back to the full commission February 14. On April 11, the commission hopes to conduct a final vote on the policy.
