this Analysis, Al Herson discusses whether preservation of existing
agricultural land constitutes feasible mitigation under the California
Environmental Quality Act (CEQA). The Analysis concludes that preservation of such land
can be both a valid CEQA mitigation measure when it is used to mitigate
cumulative losses of agricultural land, and a feasible mitigation measure when
it implements strong general plan agricultural land preservation policies. The
The California Environmental
Quality Act (CEQA) [Pub. Res. Code § 21000 et seq.] is the state's other main policy tool for
agricultural land preservation. A project's effects may be significant if it
will convert prime agricultural lands to non-agricultural use [14 Cal. Code Reg., Div 6, App. G(II)]. If these effects are
significant, lead agencies must adopt feasible mitigation measures to avoid or
substantially lessen them. Mitigation measures that are for agricultural land
conversion may include on-site agricultural land preservation, creating new
agricultural land offsite, or preservation of offsite agricultural lands
through purchase of offsite conservation easements.
Because the first two
options typically are not feasible, much of the attention in CEQA has focused
on the use of conservation easements. With this approach, for every acre of
agricultural land developed, a project applicant is required to purchase a
conservation easement for an acre or more of comparable agricultural land.
The case law on whether
preservation of existing agricultural land constitutes feasible mitigation
under CEQA is unsettled [see David C. Levy and Jessica Owley Lippman (2005)
"Preservation as Mitigation under CEQA: Ho Hum or Uh-Oh?,"
Environmental Law News, Volume 14, No. 1, pp. 18-23]. This article first
discusses pre-2010 case law on offsite agricultural land mitigation (one
unpublished case and one published case), then discusses two recent (2010)
cases, and finally discusses how the case law can be reconciled. ...
. . . .
Two 2010 Cases
Cherry Valley Pass
Acres and Neighbors v. City of Beaumont
In Cherry Valley Acres Pass and
Neighbors v. City of Beaumont (2010) 190 Cal. App. 4th 316, 118 Cal. Rptr.
3d 182 [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the city's EIR
determined that a development project's conversion of 200 acres of agricultural
land was a significant impact; this impact was also cumulatively considerable
because it contributed to a cumulative loss of 9,500 acres of land in the
project vicinity (much of it agricultural) to development. The EIR determined
that these impacts could not feasibly be mitigated by offsite mitigation measures,
and the court agreed.
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