The price of dirt, Part 4 -- the Williamson Act budget hearing

The price of dirt – Part 4, the Williamson Act.
 
To give readers a larger view of relations between Merced County and the state’s Agriculture Preserve and Williamson Act laws, we offer a case study from a 2005 paper by UC Davis researcher, Christoper Butcher, since 2007 an associate in the prestigious Sacramento law first of Remy Thomas Moose & Manley. It serves as a preface for Part 4 of “The Price of dirt.” We will say in advance, that we think it is highly unlikely that anyone taking part in the budget hearing on the Williamson Act in Merced County this year has ever read this paper, and its concluding case study on how Merced County essentially corrupted the entire purpose of the Act and the underlying law concerning the Agricultural Preserve.
 
The Forgotten Intent of the Williamson Act:
The Regulation of Non-Contracted Lands within Agricultural Preserves
 
Christopher J. Butcher, UC Davis, 2005
 
A Case Study: Merced County
 
Merced is one of the counties that have recently adopted the Williamson Act.^[1]  Within the first three years of adopting the Act, landowners in Merced County placed more acres under contract than in any other county during the same period.^[2]  In total, Merced County has entered into contracts on 417,318 acres of land.^[3]  Of this, 240,515 acres are prime agricultural land and 176,803 acres are nonprime agricultural land.^[4]  In 2003, the Merced County Williamson Act program received the eighth largest amount of subvention payments[5] from the state,^[6] totaling $1,376,478.^[7]  Overall, Merced County is ranked fifteenth in total acreage covered by Williamson Act contracts.^[8]
            Merced County provides an interesting case study because it is young, in terms of its participation in the Williamson Act,[9] yet its program has expanded rapidly.^[10]  This is not a comprehensive analysis.  It will focus on how the county established its preserve^[11] and flaws in its administration.^[12]  The criticisms made here of Merced County’s implementation of the Act do not apply to all counties, but hopefully this analysis can provide insight into various ways a county may misinterpret and abuse the Act.
 
A.     Establishment of Merced County’s Agricultural Preserve
 
On July 25, 2000, Merced County passed a resolution implementing the Williamson Act.^[13]  Landowners within an agricultural preserve could enter contracts with the county beginning January 1, 2001.^[14]  Merced County chose to implement a blanket agricultural preserve[15] across all land that complied with the county’s rural land use designation and was zoned general agricultural (A-1) or exclusive agricultural (A-2).^[16]  As a result, this preserve included a vast amount of land.^[17]  Despite its wide reach, even today few farmers are aware that their land is part of this agricultural preserve.^[18] 
Assemblyman Dennis Cardoza, who at the time was the chairman of the Assembly Committee on Agriculture, pushed for Merced to adopt the Williamson Act as “mitigation for UC Merced.”^[19]  Shortly after the agricultural preserve’s creation, the county amended its resolution, establishing the agricultural preserve, to include land designated as part of its specific urban development plan within the preserve.^[20]  This amendment made the county’s intent seem less like long-term conservation of agricultural land and more like a tax break before development.^[21]
Traditionally, landowners established agricultural preserves by petitioning county board of supervisors or city council.^[22]  Merced County, however, established a blanket preserve based on county zoning. ^[23]  Merced County is not the first county to establish a blanket preserve.[24] Stanislaus County utilized this method when it created its agricultural preserve on October 20, 1970.^[25]  In 1970, the Joint Committee on Open Space Lands determined that “establishing agricultural preserves in areas coextensive with land subject to [a specific] zoning ordinance [is] consistent with the law.”^[26]  Although applying a blanket agricultural preserve to specific zoning ordinances clearly has some advantages,^[27] counties and cities need to understand the commitment they are making when they choose to do so. 
Merced County clearly did not understand the commitment it was making when it created its agricultural preserve.  A few landowners attended the public hearing regarding the establishment of the preserve.^[28]  One landowner requested that the county exempt his property from the agricultural preserve.^[29]  His request was denied.^[30] 
The county had the right to deny the landowner’s request.^[31]  The board of supervisor’s explanation for the denial is telling, however.  Supervisor Deidre F. Kelsey, the current Chairman of the Merced County Board of Supervisors, stated that “once an individual’s property [was] in the Preserve, the landowner [would] have the opportunity to choose whether or not to exercise inclusion in the Williamson Act.”^[32]  This statement indicates that Supervisor Kelsey clearly did not understand that once the agricultural preserve was established all landowners within the preserve would be subject to Williamson Act restrictions.[33]  Although it is true that the landowners would have the option to decide if they wanted to enter a contract and place their land under heightened restrictions, after the agricultural preserve was established all landowners within its boundaries were brought under applicable regulations established by the Act.[34]  Further, Chairman Jerry O’Banion made the clarification that landowners in the agricultural preserve had “the ability or right to desire development rights or preserve that land in agriculture.”^[35]  O’Banion was correct in stating that landowners within an agricultural preserve have the “right to desire development rights,”[36] but until landowners follow the procedure established by the Williamson Act to remove land from the agricultural preserve, their entitlements for use are limited by the Act.[37]
These statements of the supervisors were a gross misinterpretation of the Act.  As discussed above, an agricultural preserve is an area designated and regulated by the Williamson Act to protect and encourage agricultural and open-space uses.^[38]  By incorporating land into an agricultural preserve, new procedural hurdles are attached to development of the land^[39] and additional restrictions are placed on the government and landowner’s entitlement for use.^[40] 
The Act provides a county or city with significant discretion in establishing its own procedure and regulations under the Act.^[41]  A county or city cannot, however, escape the procedures and regulations established by the State Legislature.^[42]  A landowner can choose whether or not to enter a contract with the county or city, but once land is incorporated into an agricultural preserve, and until it is removed through the proper procedure, it is subject to applicable regulations under the Williamson Act.^[43]
 
B.     Removing Non-Contracted Land from Merced County’s Agricultural Preserve
 
As discussed earlier, a county or city must follow certain procedures in order to remove land from an agricultural preserve.^[44]  The Merced County rules of procedure adopted to administer the Williamson Act state:
A landowner may request removal from the agricultural preserve if they are not under a Land Conservation Contract or upon termination of it.  As the Williamson Act is a voluntary program, and an owner may not wish to participate, requests for removal will be forwarded to the Board of Supervisors for approval.^[45]
 
Based on the procedure established by Merced County, landowners may request the county to remove their land from the agricultural preserve at any time.^[46]  This does not mean, however, that the county can skip the state mandated procedure for removing the land.^[47]  Ideally, the procedure established by the California Legislature will ensure that the county or city considers the impacts of the removal.  But in the end, after the procedure is followed, the county or city has full discretion to make its decision.^[48]  Unfortunately, Merced County has not taken this position and, generally, has not followed the state mandated procedure to remove land from its agricultural preserve.^[49]
            In 2004, Deidre F. Kelsey reaffirmed “that people who did not want to participate [in the Williamson Act] could opt out.”^[50]  Since the Act was implemented in Merced County, the county has removed property from the agricultural preserve through rezoning on at least ten occasions.^[51]  The board of supervisors recognized that changing zoning removed land from the agricultural preserve in only two of these hearings.^[52]  During the other eight hearings the board of supervisors did not even acknowledge that the land in question was part of Merced County’s agricultural preserve.[53]
            One of the latter projects involved rezoning 372 acres of A-1 land to industrial planned development (PD-1) in order to build an industrial business park.^[54]  In another project the county converted A-1 zoned land to general commercial (C-2) to allow for the construction of a service station, a mini-mart, and two fast food restaurants.^[55]  More recently, a project involved rezoning 655 acres of A-2 zoned property to allow for a development project called “Yosemite Lake Estates.”^[56]  During this hearing, a nearby property owner expressed his concern that the project was a “leapfrog development [that] promote[d] urban sprawl.”^[57]  The board of supervisors unanimously approved each of these three projects and no one on the board mentioned the Williamson Act or the County’s preserve during any of the hearings.^[58]
            Merced County procedure, or lack thereof, for removing land from the agricultural preserve clearly violates the Act.[59]  In eight of the ten removal proceedings, the county did not conform to the Act’s notice requirement.^[60]  One explanation for the county’s failure to provide notice is that in eight of the ten proceedings there was no hearing on the subject for which to provide notice.^[61]  In other words, the hearings made no mention of the Act or the preserve.^[62]  The board of supervisors not only violated the Williamson Act’s notice requirement,[63] but its failure to discuss the removals from the agricultural preserve also violates the hearing requirement as well.[64]  
 
C.     The Two-Year Window & Compatible Zoning for Non-Contracted Land within Merced County’s Agriculture Preserve
 
In 1999, the Legislature recognized how critical it was for land within agricultural preserves to comply with the Act’s minimum parcel size requirements.^[65]  As discussed earlier,[66] to ensure compliance, the Legislature amended the Act to require counties, within the two-year window, to change the zoning of land within a preserve if necessary.^[67]  To justify this amendment, the Legislature declared:
Existing provisions of the Williamson Act do not require that local zoning of designated agriculture preserves be consistent with the minimum parcel size under the act, and without that requirement the purpose of the act can be seriously undermined by subminimum parcel sizes and incompatible uses within those preserves.^[68]
 
            A comparison of Merced County maps of zoning and prime agricultural land demonstrate that parcels of nonprime agricultural land exist within the county’s A-1 zoned regions.^[69]  In Merced County, the minimum parcel size allowed in A-1 zoning is twenty acres.^[70]  Within an agricultural preserve, however, the Williamson Act requires that parcels of nonprime agricultural land are at least forty acres.^[71]  Therefore, the county’s A-1 zoning, which allows a minimum of twenty acres, is below the minimum acreage required for nonprime agricultural land in agricultural preserves under the Williamson Act.^[72]  Merced County’s two-year window, for ensuring parcel sizes within its agricultural preserve are consistent with the Act’s requirements, expired in early 2003.^[73]  Merced County could easily work towards remedying this violation by converting A-1 zoned nonprime agricultural land within the agricultural preserve to a compatible zone established in its general plan, such as the A-1-40 zoning.^[74]
            In addition, the county board of supervisors has approved numerous subdivisions that are well below the ten-acre prime agricultural and forty-acre nonprime agricultural minimum parcel sizes allowed in the agricultural preserve.^[75]  Since the agricultural preserve was created, the county has subdivided land within the preserve on at least seven occasions and created at least eleven new parcels under five acres.^[76]  In 2003, Ed Pattison, the Executive Director of Merced County’s Farm Bureau urged the board of supervisors not to divide a particular parcel of A-1 zoned land because “breaking up [the] land [would] have a negative impact on the neighboring lands and [would] set precedence [sic].”^[77]  Three months after the board of supervisors approved the subdivision, it approved another subdivision in which the applicant’s lawyer explained that the county should approve the variance because “there are smaller parcels in the surrounding area.”^[78]  None of the subdivision hearings addressed how the subdivisions conflicted with the Williamson Act.^[79]
           
D.     Non-Contracted Land in Merced County’s Agricultural Preserve & CEQA
 
 
Despite the fact that Bill Nicholson, Merced County’s Director of Planning and Community Development, has acknowledged that removing land from an agricultural preserve is subject to CEQA,^[80] the county has rarely complied with CEQA when removing land from the preserve.^[81]  In fact, when removing land from an agricultural preserve, it appears the county has only complied with CEQA on only two occasions.^[82]  Both of these removals were associated with development projects that would remove the land from agricultural production.[83]  But, Merced County is not alone.^[84]  Dennis O’Bryant, the Assistant Director of Land Resource Protection at the Department of Conservation, stated that he has probably only seen one removal that complied with CEQA and it was part of a large project.^[85]
 
Conclusion 
 
From this analysis, it is clear that Merced County has failed to administer the preserve in a manner that complies with the Williamson Act.^[86]  As a result, the Act is less likely to achieve its goal of “long-term conservation of agricultural and open-space land” ^[87] in Merced County.  The Act requirements discussed in this note have received little attention over the years.  Merced County’s violations are likely not anomalies; rather, it is probable that cities and counties throughout the state have also routinely violated these Act and CEQA requirements.
The regulation of non-contracted lands within agricultural preserves is essential to maintaining large clusters of viable agricultural and open-space land, as the Act intended.^[88]  A California Appellate court has stated that “the Williamson Act[’s] . . . language must be interpreted liberally to effectuate [its] remedial purpose.”^[89]  Nonetheless, it seems that much of the Act’s language relating to agricultural preserves and the regulation of non-contracted lands is not “interpreted liberally to effectuate [its] remedial purpose.”[90]  Even worse, at least in the case of Merced County, it appears the county has not tried to interpret this language at all.
As mentioned earlier, the Department of Conservation should receive maps of agricultural preserves from every county or city that is participating in the Williamson Act.^[91]  This requirement has been ignored for many years, and the Department of Conservation is only now beginning to demand counties produce the maps.^[92]  It is critical that the Department of Conservation takes all necessary action to ensure participating cities and counties create these maps.  As maps of agricultural preserves do not currently exist, the degree to which clusters of agricultural land making up agricultural preserves have become discontiguous is unclear.
In addition, the Department of Conservation should commission a full review of each county’s agricultural preserves.  Loosely followed requirements relating to non-contracted land have likely lead to preserves pock marked with gaps caused by land that was improperly removed.  These disjointed preserves are less likely to effectuate the goals of the Act.  Without such a review, there is no way to know the full scope and impact of poor management of non-contracted lands within each county and city’s preserves. 
            The State of California has provided over six hundred million dollars in subvention payments since 1967.^[93]  In recent years, subvention payments have grown larger than ever.^[94]  If the Act could achieve its goals, the burden on California taxpayers would pale in comparison to the program’s value.  Unfortunately, if counties do not comply with all aspects of the Act, it is unlikely its goals will be achieved. 
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Three members of the Merced County Board of Supervisors  recused themselves from the budget hearing on Item 21, Williamson Act,  because they had Williamson Act contracts. This precipitated an unusual legislative procedure because a quorum was needed, requiring that one of the supervisors in conflict had to sit on a three-supervisor panel. The choice was made by coin tosses. Supervisor John Pedrozo won the toss.  
 
Development Services Director Bobby Lewis set the stage, telling the supervisors that the state Legislature approved a 20% reduction in the state’s “subvention” (backfilling to counties for loss of property tax revenues from Williamson Act contracts)  on top of 10% last year. The governor then vetoed that agreement, leaving $1,000 in the entire fund for state subventions to counties. This was a $1.2 million loss to county in state subventions. There 468,000 acres in 3,640 parcels in the Williamson Act in Merced County. Over 1,000 contracts with approximately the same number of individuals. The staff has prepared four options: The county could absorb the $1.2 million (Option 1); the county could put all contracts in nonrenewal (Option 4); the county could temporarily suspend new contracts (Option 2); finally, the tricky one:  the county could eliminate Section 423.3 tax reductions (Option 3).
 
Non-renewal would give $138 million in new assessed valuation to the county in the first year and $46 million per year in subsequent years. But it can be challenged by farmers. The 423.3 option would affect 1,500 parcels – it allows reassessment upwards according to prime or grazing land. 
 
The 423.3 option is a comparison between a low assessment due to Prop. 13 versus their Williamson Act valuation (on production). Farmers get whichever is lower. 423.2 doesn’t apply if in nonrenewal; 923 parcels receive 423.3 benefits and their Williamson Act value is higher. By eliminated 423.3 they would go back to Prop. 13 values – they have a low base year. Taking out 423.3 would add $87 million assessed valuation to the tax roll next year; $137 million would be added if all go into nonrenewal – but protests could pare that down because farmers would be allowed to protest, which could slow the process down by five years.
 
Lewis did a great job of laying out the options. However, for readers unfamiliar with the complexities of the Williamson Act, particularly as it applies to this 423. 3 option, a few words. The Williamson Act was made law in 1965, 13 years before Prop. 13 limited property-tax increases to 1 percent per year. The general idea behind the Act is that, in California’s normally booming real estate economy, if a county agreed to institute the Williamson Act and its underlying law, the Agricultural Preserve, ag land would be taxed based on its production, often a lower amount than the assessed value of the land. However, there are situations, referred to in Section 423.3 in which the assessed valuation is lower than some high-income-producing crops. In that situation, the farmer in a county with the Williamson Act is taxed on the lower amount. The 423.3 question, which will be discussed at length at the end of the hearing on this item, involves a reduced percentage of taxes on land qualifying for the 423.3 – the 923 parcels mentioned, for which the Williamson Act value of the production is higher than the assessed value of the land.
 
Supervisor Hub Walsh, acting as chairman of the three-supervisor panel: The Williamson Act gives farmers $596 million benefit in assessed value?
 
County Assessor Kent Christensen: Using the 1% rule, that’s a $6 million benefit to property owners in MercedCounty.
 
The public comment period began.
 
Jean Okuye, president of the Valley Land Alliance and Livingston almond grower told the supervisors that the public tried to get in a moratorium on new subdivisions four years ago and the board rejected it.  She mentioned that the public defeated the Riverside Motorsports Park project in court. She laid out the national loss of farmland: every minute the US loses about 2 acres of farmland to development. Ag is our economic engine and the Williamson Act one of few tools we have to save our precious farmland. The VLA was formed against the threat of loss of farmland and damage to our (farmers’) economy. “Agriculture is our real economy and our only economy …” she said.
 
From here on she tries to compare running the county with running her ranch. … cutting back, working harder …
 
The rest of Okuye’s testimony is too incoherent to be recorded. At the most basic level, she is unable to distinguish the difference between renewal of Williamson Act contracts and non-renewal of them, the issue in item four in the staff recommendations, calling for non-renewal of all contracts. The aspect of this that she regurgitates from some gossip passed among the agricultural ladies that afternoon is that because the contracts are two-party agreements (between the farmers and the county), if the county chooses not to renew them, the farmers can protest, which ties up the contract in its existing form for five years. In other words, the county would have to pay the full subvention for five years to any farmer who protested non-renewal initiated by the county. In the event a farmer chooses to cancel a contract, rather than simply not renewing it (thus letting property taxes rise to pre-contract level over a 10-year period), he is supposed to pay 25-percent of the pre-contract assessed value of the land within a year. Without filing a state Public Records Act request, it would be impossible to report that such fees have ever actually been collected by the county. Even partial non-renewals are offered. There is no end to the flexibility of subsidies to large landowners, at least in Merced County.
 
Presumably by “cutting back,” Okuye means restricting here bird watching junkets to foreign lands, far from the migratory birds of the Pacific Flyway that pass over Merced County. By “working harder,” presumably Okuye means getting a $425,000 easement on her ranch, paid for by the state and by Great Valley Center through the Central Valley Farmland Trust, while a member of the trust’s Merced County Council. To Okuye, tightening her belt means building a new house out of hay bales. It is a somewhat different experience than that of a family with a disabled child being “disenrolled” from a county Public Health Department program. And, if she loves to protect farmland so much, why has she split her own orchard into ranchette-sized parcels shortly after trying to get that moratorium on new growth four years ago, which was written by environmentalists, not by farmers? Okuye mentions the Riverside Motorsports Park project. It was a letter from Okuye that first signaled local environmental groups who had filed suit on that project that the farmers that had promised to pay the expenses of the suit – most of them members of the Farm Bureau board – would renege on that promise.  
 
These people are liars without honor. They cannot be trusted in business, politics or land-use planning. Environmentalists, who were not invited to join in the general plan update process, can hardly wait to see what these “protectors of farm land,” who have labored so hard on that update, finally come up with in collaboration with staff of what used to be called the Planning Department, but is now, more accurately, called “Development Services.”
 
Jeff Marchini, of Le Grand, first vice president of the Merced County Farm Bureau told supervisors that the Williamson Act was a huge success, ag is the solid base of our county economy, and urged the board to adopt to option two – no new contracts, and let the agribusiness lobbyists in Sacramento try to work out something on state subventions.
 
This is the classic Farm Bureau style. Nobody reads anything. Everything is done behind closed doors and information is nothing but rumor. But that’s what you get when your advocate is nothing but a front for a gigantic insurance agency.
 
Maria Giampoli, also of Le Grand, represented California Women for Agriculture. She asked the board to lobby for county farmers, saying that with housing values falling, ag even more a source of tax dollars. She said she wanted the county to pay the full $1.2 million subvention and not give out any new contracts,
 
Rochelle Koch, Amsterdam – wife of the county Farm Bureau president told the board that the Williamson Act was about saving ag land. “The ag community worked very diligent to protect our ag land … We are considered wackos because we are passionate about it,” she said. Koch got lost trying to read an article from the Modesto Bee. The rest of her testimony was pretty bizarre:  dairies a nightmare but still top commodity; the Bee article lists the employers, how many; “we’re the economic engine;” “California is where we produce this ag land. There are four tools to save farmland – general plan (weak, unenforced), Williamson Act, easements, and lawsuits (we don’t like to go there, there’s no money anyway). Please consider option two.”
 
The idea that California produces ag land is not quite as idiotic as it sounds, although the federal government’s irrigation projects have had the greatest impact of opening up alkali flats to farming. By rain level, the San Joaquin Valley is a desert. Without irrigation, most of it is seasonal grazing land, good for elk, antelope, coyotes and roadrunners. But to imply that somehow “we,” the farmers themselves, without state and federal taxpayers behind them, “produce” farmland is absurd – typical brainless Valley farmer propaganda, of the sort that, despite backing from international PR firms and water districts from Southern California, has failed this summer to convince the federal government to suspend the Endangered Species Act restrictions on Delta pumping.
 
Koch’s husband, Peter, is president of the Merced Farm Bureau. He is a Canadian, not an American citizen. Several years ago, they built a palatial estate on their calf ranch and, at the same time as President Koch was inveighing in the farm bureau newsletter about the drought, they built a swimming pool. For years, they have gone annually to Bornholm, Denmark, a Baltic island, to commune with Koch’s Danish ancestors. Bornholm is a long way from laid-off county workers losing their homes and many of the 35-percent of county residents on some form of public assistance losing that assistance. This year, the Koch’s are reportedly selling eggs purported to be organic in the Merced farmers’ market. They have a certain liberal style, but the good taste to recognize the desperate condition of many residents of the county is not in them.
 
Rob White, a Snelling farmer, told the board that ag land has held or increased its value, but that farmers faced higher input costs.  The Williamson Act provides the margin to continue or not for many. “If you want to hurt Merced County, don’t support ag,” he said.
 
Actually, ag land prices are falling for several rather compelling reasons: the whole slump in real estate value; over-production of almonds, a slaughterhouse-market for milk, and fears caused by drought. It would stand to reason that land not under Williamson Act contract now and barred from it in the future would be cheaper yet, and exert another downward pull on ag land prices. Also, as Supervisor Pedrozo points out below, not all input prices are rising. The larger problem in Merced is that the prices for its top two commodities, milk and almonds, are falling. This is the result of business decisions made by farmers, not the fault of the state, the county or the Williamson Act.
 
Bob Erickson, president of the Merced-Mariposa Cattlemen’s Association told the board that the Williamson Act protects 40% of privately held land in state, and asked what would happen to county tax rolls when farms and ranches go out of business. In lock step with the rest of the farmers, he called for option two, temporarily stopping new Williamson Act contract applications.
 
Just taking a wild guess here, we imagine that when a farm or ranch goes bankrupt, the bank then owns an unproductive farm or ranch, unless they can lease it to another producer. If it is unproductive, that should trigger termination of the Williamson Act property-tax subsidy, with the result that the bank should pay taxes based on the assessed value of the land, not based on a non-existent crop produced on that land. But, that’s just a wild guess and who knows how such things actually work, especially in Merced County.
 
Joe Marchini, Le Grand, said he’d spent 70 years on same ranch and farms in six counties. “To me Merced the strongest, we’ve got good water, can produce any crop, and keep this county alive,” he said. “Don’t penalize farmers because they are going to bring it all back to you.” He recommended option two.
 
You wonder, listening to Mr. Marchini, how Merced agriculture survived until 2000 without the Williamson Act. In fact, past county supervisors voted it down two or three times after the act became law in 1965. The only way it was finally sold was under the bogus idea fomented by Supervisor Kelsey and then-state Assemblyman Dennis Cardoza that it would be mitigation for UC Merced, something it was never intended for and could not by law do – but, as said above, local farm leaders operate strictly by rumor, not fact. Passage of the Williamson Act and Agricultural Preserve in Merced County was so bizarre it became the subject of a UC Davis study on how the act had been corrupted for the benefit mainly of developers, among them Greg Hostetler, reportedly now the largest almond grower in the county.
 
Diana Westmoreland Pedrozo, executive director of the Merced County Farm Bureau, was in a snotty mood when she addressed the board, having been forced to wait all afternoon listening to fired county workers and poor people:  It’s been quite the afternoon and early evening. I just wanted you to know that there were several other people here who wanted to comment but couldn’t last the five hours. Farmland is not farmland without the farmer. Costs are up, prices down. Yet they still go along, the most faithful, optimistic hard-working people I’ve ever run across aside from the military. Family, faith and community. We’re asking for that faith and feel for community. Many farms and ranches in this county have laid off people as well. To keep increasing the cost when we are the benefit to you all, we are the ones who are giving you the tax dollars to pay your salaries and to operate the government,
I urge you to suspend new contracts. Give those people in Sacramento time to work
The Williamson Act is the first line of defense in our ability to feed ourselves.
Your most important role is how to take care of the people in your jurisdiction
We need air, water and food and the water and land are tied to the food
The governor said he was suspending the Williamson Act, not eliminating it. Put your faith in the people who have been here from the beginning and have always paid their taxes while others come and go and cost us all money.
 
Is it possible that in the rumor mill where Diana Pedrozo (sister-in-law of Supervisor Pedrozo) lives, it is believed that a governor can unilaterally eliminate a state law chaptered in state codes since 1965? We’re not talking about quality of information here; we’re talking about quality of stupidity. Pedrozo knows here audience. All she needs is two out of three, and she’s got her brother-in-law and Walsh, who are capable of believing anything that comes out of her mouth.
 
Aldo Sansone, a Westside agribusiness man testified: Quite frankly I think the entire board should be here regardless of the conflict of interest, because I think as professional people they could put that aside and actually render a decision that would be an honest decision….I am a product of Merced. I was born in Merced. I went to school in Merced and this is my area, my county. I’m not going to reiterate those things that preceded me up here at the podium because I agree with them 100 percent. But I am going to go into a different area and that is where the public officials and those elected, both yourselves and those in Congress and in the Senate, all those in the Legislature in the state of California … to meet the challenge and act like business individuals. That is one of the things that we have lacked in this whole process. I’ve been here since 1:30 and I’ve heard all the pleas, what-have-you, and they are heart-wrenching, it breaks your heart to listen to all of those.
 
I have to tell you a little story and if you bear with me. I was 10 years old, 1942, the war was raging heavily. My dad – God rest his soul – was not too fluent with the English language. But it was interesting in that up the driveway comes this Army car and out steps this lieutenant Army officer and a gentleman from Merced who happened to know my dad, and he was the intermediary, the guy that was going to soften the blow to my dad. And the blow was this: they handed him condemnation papers to his property, 525 acres, and said, Mr. Sansone, we are condemning this property for the good of the war – for the war effort. That property, gentlemen, was Castle Air Force Base.
 
And I can recall as I stand here now – it was in August, just about this time of day – and within a month all his vineyard was bulldozed out. He did receive a token amount of money for the crop, but that was it – the land was condemned. There was no way of challenging a condemnation of that type.
 
Why am I saying this? I am saying this because now I am challenging this board, that for the good, for the good of MercedCounty, you keep the Williamson Act in force and you can go with recommendation number two. Thank you.
 
The question is, in view of previous and subsequent comments by farmers that at times seem to imply that paying their property taxes is a matter of choice or noblesse oblige, why does Sansone talk about condemnation? Is it because both the dairy and almond industries in the county are in serious trouble? The downside of being the second largest dairy county in the nation is that when milk prices crash at historic levels, they will take dairies with them. In one of the nation’s premier almond-growing regions, thousands of acres of recent almond plantings are coming into production. Whether it is an over-production problem – ferociously denied by industry flaks – or reduction in demand, almond prices are predicted to be below the cost of production this year. Curiously, however, the volume of processing tomatoes, being disked under a few years ago due to the collapse of TriValley Growers, is now increasing again. There are certainly dairies in bankruptcy and probably some almond producers will also go under this year. The lost of dairies has meant and will continue to be a drag on employment in the county. But it is hard to imagine that, whatever happens to those farms, their former owners will be homeless and hungry. At least the Sansones seem to have survived and flourished.
 
But, dairy and almond prices are not the fault of Merced County government. Those farmers made those decisions as “business individuals,” and they have turned out to be bad business decisions. They also made bad business decisions in selling so much land to developers during the speculative boom. The dairymen are unable to organize themselves to combat the extreme corruption in their pricing system and almond growers are going right down the old San Joaquin Valley trail of over-concentration in one crop and over-production of it.
 
Why should the most vulnerable in the society be made to pay for the stupid business decisions of special interests – finance, insurance, real estate (including agribusiness)? Why does the helpless, bipolar, homeless man living on the creek, just trying to talk to somebody at Mental Health and get medication he needs to keep the voices down, have to suffer because of the greed and stupidity of Sansone and his agribusiness cronies?
 
Rosemarie Burroughs, farmer and rancher from northeast Merced County, and also a member of the state Reclamation Board: It is your duty and responsibility to our community to prioritize these difficult decisions. Agriculture must be your number one priority during this economic disaster with unemployment at a record high. Agriculture is getting hit twice: once with the economy, second with increased taxes. We must not cut the lifeline to our existence. Farmland must be protected. The Williamson Act does protect agriculture. Revenue has come from our landowners. We support our community and we will and we do pay our fair share. But we must not be burdening with caring more than we can to survive. This may be too simplistic, mentioning the $11 million representing two percent of the total budget. Our family recommends item number two, temporarily suspending new contracts until things can get worked out at the state level. But if you must cut, cut across the board, every person, every department by whatever it takes to make the budget work. In these serious matters, do not make short-term decisions …Ag getting hit by low prices, higher taxes. Your responsibility is to food and farmers. In Native American councils, you think seven generations ahead. Think of MercedCounty in seven generations … without agriculture – third world country, no food, no funds for food, once you lose our land, we all lose and it will never be again. Protect our ag land, our food, and our future by prioritizing agriculture as number one. Protect our farmland with the Williamson Act. And I urge everyone in our community to buy local, support local farmers and I end with God bless you as you make these decisions for our community.
 
We are not sure about our readers but are sure that our agricultural leaders see no contradiction in their words. We see one: if their feelings are so deep for the “heart-wrenching” condition of so many of our residents, why don’t they forego the property-tax subsidy for a year or two, as a benefit to the community they claim to love?  Maybe, thinking seven generations ahead, we should start building more casinos now. As far as buying local is concerned, farmers markets could not feed more than a fragment of the population, the supermarkets buy where they get the best price, and a straight diet of almonds and dairy products would not be healthy. However, it would be a little better if it were cut with liberal amounts of tomato paste.
 
The public comment period over, Walsh, acting as chairman, asked Nelson and Pedrozo for their thoughts.
 
Pedrozo: First and foremost, kinda, well not kinda, because this is very tough for me because I’m third generation and my sons are fourth generation and some day I hope I have some grandkids, -- um – I’m reading number two, which I have no problem with at all but I needed a little more clarification on item number three and due to what Mrs. Burroughs just said and the – I’m not trying to be – no shape and form on the horror stories we heard this morning, well this morning and this afternoon – whatever – um – what exactly would happen if we would discontinue the 423.3, keep number two and bring item three back – um – so, we’re cutting some but we’re still making sure that the farmers are still involved in the Williamson Act and they’re still getting some assistance.
 
Kent Christensen, Assessor/Recorder: I’ll try to answer the question.
 
Pedrozo: Does it make sense, I mean …
 
Christensen: 423.3 can be discontinued without putting any contract into non-renewal. It just takes out that component that guarantees a reduction. One thing that maybe hasn’t been explained here is that the 30 percent and the 10 percent are maximum reductions and the board can so choose to make it something less, so it can be 1 percent, 5 percent, 10 percent, 15 percent, 20 percent – whatever number the board so chooses. And, like I say, the main reason 423.2 was put in was so that those properties that had been in the Williamson Act a long time, they were under contract but they were receiving no benefit for the fact that they had tied their property up, and the county had also not receiving any subvention money for that property because it wasn’t getting a subvented value. So, there are counties that a 5-percent reduction guaranteed on the prime and 5 percent guaranteed on the non-prime.
 
Pedrozo: So, then, due to the situation of our governor, and his – because I know I’m going to be in Sacramento tomorrow – it might be today by the time we get out of here – but, uh, by morning, but I know this is going to come up because that’s the RCRC, the rural counties, uh, and the last meeting I had was one of the hot topics was the Williamson Act, and again, like I said – and I’ll go on record right now that I support totally number two and I have no problem with number three if – um – we can continue with the Williamson Act and if the farmers are getting some sort of cut in their property tax.
 
Christensen: 423 was at the discretion of the board. It has no effect on the non-renewal of the properties and you could still give property owners some benefit by not eliminating the 423.3 but by changing the percentage guaranteed reduction.
 
Pedrozo: So, then if we did have this, this would come back – say we did number two and number three – and, it says we can adopt a resolution modification, this would come back and that’s when the percentage is set? Is that how that would work?
 
Christensen: I would defer to counsel but I think you could set those percentages now and then staff could bring the resolution back to the board at the time it would need to be changed.
 
County Counsel James Fincher: That is correct. You do have to come back with a resolution but, you’d have to go through the whole coin toss thing again if you’re going to adjust the percentage, or you can just vote on that now.
 
Pedrozo: I have no problem having to go through that again. I just want to make sure we do this right.
 
Walsh: My question to counsel would be if we were to any other option that was to continue this in any form of action, can we also – we’ve already gone through this exercise of picking our member – sorry, Mr. Pedrozo – and that we would just stay with the same three people since we’ve already had a random selection process.
 
Fincher: Procedurally you could do that but the difficulty you run into is that you are in a budget hearing and you need to close the budget hearing by law within 10 days of opening it. So, you would need to continue the budget hearing if you were going to put that off because the staff needs some closure on the dollar figures that they need to pull out of wherever their going to pull them out of.
 
Walsh: OK. I was trying to see if that was a way of facilitating any discussions that we might have. Because the other option is … the randomness.. we bring back – there could be another person in here who thinks the 423 idea even if we’ve voted on it is a real bad idea and we’re back here having the Williamson Act discussions – I was just trying to figure if there was a way to avoid that discussion.
 
Any other comments?
 
Supervisor Nelson: Don’t go away Kent. You mentioned earlier that discontinuing Section 423.3 reduction would increase the assessed valuation by $87 million.
 
Christensen: Approximately.
 
Nelson: So, 1 percent of that would by $870,000 – close to a million dollars – that would come into the county’s coffers next year.
 
Cristensen: No. That’s the total taxes collected and I defer to the Auditor-Controller on that.
 
Nelson: So we get a very small …
 
Christensen: I don’t know what that percentage is.
 
County Auditor-Controller Lisa Cardella-Presto: Bringing $86 million back on the tax roll would result in approximately $270,000 being added back to the county general fund.
 
Walsh: A couple of questions. Do the – the estimate is that the subvention for the Williamson Act so … if we had one million-dollar … assessment, then they would reimburse us for a million dollars?
 
Christensen: We receive $5 for every acre of prime land and $1 for every acre of non-prime land.
 
Walsh: So the estimate of the $.2-million loss is the actual dollars of reimbursement, not the assessed value dollar?
 
Christensen: Correct. It’s the reimbursement we receive from the state -- $5 for prime, a dollar for non-prime. It was stated that there was approximately 467,808 acres in the Williamson Act, so some combination gets you to the subvention number of prime/non-prime.
 
Walsh to Nelson and Pedrozo: Comments? Thoughts? Silence. I’ll go ahead and make some even though I know the chair is supposed to wait till the end. Since I’m new … the rules … if someone else has a comment I’ll wait…Couple questions for counsel. If we were to make adjustments to … for non-renewal and in the interim the state Legislature/governor was to find dollars to reinstate the reimbursement, what would be required of the county if we wanted to change our mind?
 
Fincher: That would present a very unique situation that has never been faced and it would probably take a legislative change because what would happen would be that those contracts would be in non-renewal, so they’re on a sliding scale out of business but there in business for 10 years but I think what you’re saying is that you would have two contracts on the same land. So, absent some change in the legislation, the answer would be, currently I don’t see anything you could do other than wait 10 years and let them expire and then reenter at that point. It would be a long-term …
 
Walsh: In the 10-year process, there’s a step down and a step up?
 
Assistant Development Services Director Bill Nicholson: I think to clarify that point there is a provision in the Williamson Act that if you’re in non-renewal, if for some reason you change your mind, you are allowed to rescind that non-renewal as long as you put that contract back to 10 years again. So, we could get into Year Three in that wind-down period and file a new rescission on that individual contract or on all of the contracts individually, and that puts it back to a 10-year period. We did look at that in case the state funded it again.
 
Walsh: Let me state it out loud and people can confirm or show that I’ve missed the picture. If by chance the board were to decide to exercise option four (non-renewal of all contracts) and that in the ensuing time here the Legislature and the governor were able to find for us the $1.2 million annually to reimburse us for the Williamson Act, then we could simply by an act of the board rescind the non-renewals and stay walking with the process we were going, which is our support of the Williamson Act process. That sounds like a statement but it’s really a question.
 
Nicholson: Based on our research, yes, that’s true.
 
Fincher: However, both parties would have to be in agreement and I’m not sure that section is exactly as concrete as that. So, conceivably what you could have is a farmer that changes his mind and says, No, I’m not going back in or something else. It’s not a unilateral action the board can take.
 
Walsh: But assuming that the property owners were consistent with the idea, as the board was, that is that we are supportive of the Williamson Act, the discussion we’re having is really about the state subvention. I’d be really surprised in light of the discussions we’ve had today and the potential benefit it would be to them that a farmer would say, Forget it, I’m opting out. … But I’m just trying to figure out if that’s … it sounded more complicated, Counsel, initially, when you were suggesting that once we’re in it … if we start issuing non-renewals, we’d be faced with two contracts per property and I don’t … that isn’t going to happen, so.
 
CEO Dee Tatum: Let me say, if I can, Mr. Chairman, that I think you are trying to find a way through the conundrum and I think what you’re attempting ask is – you don’t want to pay, or if you don’t want to end up taking the $1.2 out of the general fund … is that where you’re going?
 
Walsh: I’m having that discussion because of two things. One, I’m very nervous about the message this conveys to the state Legislature and the governor that Merced County can absorb the $1.2-million cut this year. And frankly, if you spread it out over 10, that’s $12 million worth of cuts. What does that say to them about other cuts they want to us. Well, you took that cut.
 So, it would seem like part of our advocacy, if it is to maintain the Williamson Act process, we have to convey the message that we’re taking it very seriously about their actions and about what they did. And so, that’s kinda where I’m looking at – it says – Is there a way to do it and if we were successful in the advocacy of getting it reinstated that the disadvantage is only for a period of time where we put people on notice that non-renewal could be rescinded by later action. … I’m looking for options. Sorry.
 
Fincher: I think – I’m sitting here reading code sections as you’re speaking. I think there is a possibility that you could withdraw prior to the non-renewal date. But the tax increases would still be good. Say, it’s two years from now, they’ve paid the tax increase, so it’s not just that everything’s back to normal, but then there’d be a renewed contract and it would start again.
 
Nelson: I’m glad you brought up that issue if the state will make us actually pay for this from now on. I chaired a conference call with CSAC (California State Association of Counties) the other day. As most of you probably know I’m the chair of the ag and natural resources committee for CSAC. There was no consensus among any of the 58 counties … We had at least 100 people on that call. Staff was looking for some proposed statutory language and there was absolutely no consensus whatsoever on how we’re going to address this issue. However, I thought it was that the Kings Country representative brought up the fact that most of their county is in the Williamson Act contracts and getting rid of the Williamson Act would severely impact their budget, but their thoughts were – much as Mr. Walsh said – if we roll over now and subvent this out of the general fund then next year the state’s going to go, Well, Merced County, you were able to come up with $1.2 million this year, you can do it next year, too. So that is a concern that even KingsCounty has about this because they don’t want to get stuck with the state’s problems. I just bring that up for information.
 
Someone from the audience asks if she can ask a question. Walsh says he will hear it after Pedrozo speaks.
 
Pedrozo: As you read down here in item three, and if we would go with number two and number three, we’re still continuing the Williamson Act – am I right?
 
Pedrozo reads from the staff report:  If the board would only remove use of the option tax provisions, property would remain under contract, an increase of $86 million in assessed value would be added to the tax roll. In order to take this action, the board would either need to put all properties in non-renewal or adopt a resolution modifying the county’s rules.
That’s what this is saying right here: Rules of Procurement to Implement the California Land Conservation Act of 1965. So that would still stay intact, right?
 
Fincher: That is correct. So that property would still be under the Williamson …
 
Pedrozo: …and we’re still in the Williamson Act and we’ve temporarily suspended the new contract applications.
 
Fincher: Correct.
 
Walsh: So, if we do two, my only other question is if we have to have CEQA findings with regards to number two.
 
Fincher: No.
 
Walsh: So, the CEQA findings are not required for number two, excuse me, number three, but would be required for any non-renewal under section four?
 
Fincher: Correct, because under 423 option (number three), it’s not a policy shift that impacts the land use within the county. All you’re doing in impacting the amount of tax deduction. The land use is still locked up as ag and it still has the preservation aspect under the Williamson Act contract…
 
Walsh: We have a question over here.
 
Rosemarie Burroughs: The questions I have are three-fold and first I would to thank you for taking the time to deliberate this further because we appreciate your looking at this holistic approach. One question is: is there any other recommendations that could be considered that are not listed on the four items there? And the reason I asked that is because I wanted to know if, in the language of the Williamson Act, there’s any provisions for when funds were to run out, if it could just be on a suspend and continue when funds resume from the state? And also I wanted to know if – uh – a little more discussion on the message back to the state – if in fact the state needs to hear that if this isn’t going to be something that the county is going to roll over on and won’t further fund for the future years. Thank you.
 
Interpretation: give the farmers an inch and they want a mile and want to control the dialogue with the state because Ms. Burroughs is a state appointee to the state Board of Reclamation, so she doesn’t want the governor too mad at her, like when he fired the entire previous board and replaced them with Ms. Burroughs’ group.
 
Nelson: There’s going to be a meeting on the 31^st I believe – Supervisors Pedrozo and Kelsey will be going to Fresno to a meeting sponsored by FresnoCounty and the Fresno Farm Bureau to talk to a wide group of people as to what are our options to keep the Act funded.
 
County Assessor Christensen: On the 423.3, these funds will not show up until the ’10-’11 assessment year. We say immediate but we’re talking next year. The other thing is, if your ultimate goal is to get the subvention money back, then by taking away the 423.3 component, you’re going to eliminate subvention on 923 parcels and whatever their acreage is going to be, and if you reduce the percentage to something considerably less than the 30/10, then you would still receive subvention funding if and when the money is ever returned.
 
Robert MacDonald, a westide grower,  is the second speaker after the public comment period has been closed. Walsh has no control over this hearing: The first-year hit if you do the number four (non-renewal), it’s a $137-million increase in valuation on our property. Then, after that, it drops to $46 million. So it’s going to be hard on us that first year if you do number four. Another thing, all the people here today, I feel for them, they lose their jobs. I’m a small farmer, I employ 10 employees. I’ve got medical. I’ve got a good friend sitting back here. He employs 35 or better employees and medical. We’re providing jobs and we’re hanging on by a shoestring, so I would recommend two.
 
Gloria Sandoval: I have a couple of questions. What is subvention? And I’m wondering if the Williamson Act is a federal law. And I wanted to know if there is subsidy or waiver involved in funds.
 
Walsh: The new guy can answer at least one of the questions and maybe two. The Williamson Act is a state legislative enactment. (Some people would call it a state law.) It’s been around since 1964? And the subvention term is that the state reimburses the counties for the property tax that we might have otherwise acquired via Prop. 13 levels versus what we are getting, what we’ve agreed to do within a contract with the farmers, with the ag folks. So, that’s the difference. Last year they cut it by 10 percent, this year the Legislature proposed to cut it by 20 percent. The governor blue-penciled not 100 percent – everything but a thousand bucks statewide, so our share of a thousand bucks probably isn’t all that much right now.
 
Pedrozo: Mr. Chair, I’d like to make a motion. Then again – uh – I know from personal first-hand all about what is going on in the ag communities. Last year hay was $250 a ton; this year you’re lucky if you get $75 and $80. It’s good for the buyer but not good for the seller. So I know how important – and I think the board also knows agriculture – such an important role here in MercedCounty and in the world. I’d like to make a motion that we take possible options two and three, with what states here a 30 percent for the Williamson Act land that’s containing prime soil and 10 percent for contracted land consisted of prime soils.
 
Nelson leans over and tells Pedrozo the rest of the pre-scripted motion.
 
Pedrozo: That’s what I’d …I’ll reduce it to 5 and 5 – take away the 30 and the 10 percent and put it at 5 and 5.
 
Walsh: I have a motion from Supervisor Pedrozo for options two and three, with three reflective of, instead of 30 and 10, 5 and 5. Do I have a second? I have a motion and a second. In the part of discussion, would the maker of the motion – if we are unsuccessful in our advocacy on the Williamson Act be willing as part of that motion that we would at least be able to revisit this subject in the fairly near future, I mean if we’ve been successful, we don’t need to …
 
Pedrozo: I-I-I...
 
Walsh: But if we have not been and the Legislature says we’re not going to find money or if the governor says we’re not going to find money …
 
Director of Development Services Bobby Lewis: If I may, Mr. Chairman, we have certain time lines we have to meet with the Williamson Act. If we’re actually going to go into non-renewal, we have to take action by November 1.
 
Pedrozo: I have no problem. I just want to get this resolved if we can and I think I know where Ms. Sandoval was going because I’ve heard it from other people also, but I don’t want to get into that right now. I’d like to get this done if we can because I know how important it is and but as a county we should all be on the same page here and I know it’s going to hurt but if we could go this route with options two and three and then like Supervisor Nelson said Supervisor Kelsey and I will be at that hearing I mean that thing with the Farm Bureau in Fresno and I’ll have more information and tomorrow I’ll know more and hear more of the stories we’re hearing here today.
 
Walsh: So, I have a motion and a second and my only comment is as we vote on this is that earlier today we sat through some difficult discussions and we made tough decisions based on lack of state funding for programs, not because we weren’t supportive of them, not because we weren’t supportive of the services they provided. The challenge we face right now is that when we opted in and our predecessors did before – I don’t know if some of you were here then – opted into the Williamson Act, it was with the understanding that it was going to be reimbursed. Those rules have changed. So, uh, I’m willing to go with this recommendation as long as we’re willing to revisit – if we’re not successful – because I think it is a great program, it should – whatever we do here should not be interpreted as we’re not supportive of ag, supportive of maintenance of prime ag land – um – I think you’re going to see discussions on our general plan update and the commitments in that area, easements in support, probably lawsuits will come into play at some point although you won’t be seeing us suing anybody … so if the maker of the motion was just willing to include that in there to revisit it if we’re not successful if we need be.
 
Nelson: Mr. Chairman, just to clarify. Now Mr. Lewis got up and – with all due respect – mentioned something about time lines with non-renewal, this motion is not discussing non-renewal. We’re talking about a temporary suspension on new contract applications and we’re asking staff to bring us back a resolution to change the Section 423.3 provisions from 30 percent and 10 percent to 5 percent and 5 percent. We’re not talking about non-renewal here.
 
Walsh: No, we are not at this point. That’s why the maker of the motion agreed …
 
Nelson: That’s fine. I just wanted to clarify that.
 
Walsh: I think he was saying that if we have that discussion it has to happen before November.
 
All in favor? Opposed?
 
It passes (unanimously).
 
There were two basic things wrong with this hearing. First, Pedrozo’s motion on item three, the percentage-reductions on Section 423.3 properties. What he actually said was:
 
I’d like to make a motion that we take possible options two and three, with what states here a 30 percent for the Williamson Act land that’s containing prime soil and 10 percent for contracted land consisted of prime soils…I’ll reduce it to 5 and 5 – take away the 30 and the 10 percent and put it at 5 and 5.
 
This motion is so screwed up it will be interesting to see how the county tries to defend any questions on it, given that they will just ignore the fact that the 10-percent reduction pertains to non-prime soils, in other words, grazing land, cattle land, as opposed to row-crop and orchard land.
 
One way to look at it is that Pedrozo’s first reduction on prime land was to 5 percent. His second reduction of 5 percent, reduced it to zero, presumably leaving non-prime at 10 percent. Another way to look at it is that prime land stayed at 5 percent and non-prime went to zero, being completely discarded from the motion.
 
The second thing wrong with this hearing is that the state subvention to counties in the Agricultural Preserve and Williamson Act have never fully reimbursed the counties for their losses from converting the tax basis from assessed real estate valuation to crop value. And it is never been guaranteed. Assessor Christensen signaled that with his comment that the state subvention was $5 per acre for prime land, $1 per acre for non-prime.  The assessor was not asked to elaborate. The amount of the state subvention has varied through the years. After the debacle of 2001, former Gov. Gray Davis tried to do the same thing that the Hun, our present governor, did, but the Legislature fought him off. The closest to full reimbursement are Super Williamson Act contracts for 20-years, instead of 10 years. So, to answer Ms. Sandoval’s question more fully than Supervisor Walsh did, the Williamson Act has always been a state and a county subsidy to agribusiness and to developers.
 
As far as the overall effect of the Williamson Act to protect farmland is concerned, it has been a miserable failure. All one has to do is look at the urban sprawl in the San Joaquin Valley for the proof. It never had enough teeth in it to prevent one subdivision’s worth of Valley slurb.
----------------------------
 
 
Notes to David Butcher paper

^[1] Williamson Act Technical Advisory, supra note 63, at 2.

^[2]2004 Status Report, supra note 6, at 4.  Overall, Merced had the greatest number of new enrollments in 2001 and 2002.  Id. at 5.  In 2003, Merced County ranked ninth in new enrollments.  Id.  The drop in Merced County’s number of new enrollments is attributed to a stabilization process as the county’s agricultural preserve matured.  Id. at 4.

^[3]Id. at 26.

^[4]Id.

[5]A subvention payment is financial assistance often provided to a local government by the state or federal government.  Dorcich v. Johnson, 110 Cal. App. 3d 487, 494 (Cal. Ct. App. 1980).  The Williamson Act’s subvention program is, in part, designed to "provide replacement revenues to local government by reason of the reduction of the property tax on open space lands assessed under . . . the Revenue and Taxation Code."  Cal. Gov. Code § 16141 (2004).

^[6]See Cal. Gov. Code § 16140-16154 (2004), for more details on Open-Space Subventions in California.

^[7]2004 Status Report, supra note 6, at 18.  In 2003, the state provided a total of $39,242,234 to all counties participating in the Williamson Act.  Id. at 6.

^[8]Id. at 26.

[9]Williamson Act Technical Advisory, supra note 63, at 2.

^[10]Id.; 2004 Status Report, supra note 6, at 4.

^[11]See discussion infra Part V.A.

^[12]See discussion infra Parts V.B-C.

^[13]County of Merced, Rules of Procedure to Implement the California Land Conservation Act of 1965, Board of Supervisors Res. No. 2000-137 (2000), available at http://web.co.merced.ca.us/williamsonact/pdfs/rulesprocedures.pdf#search='CALIFORNIA%20LAND%20CONSERVATION%20ACT%20merced' (last visited Apr. 5, 2005).

^[14]Id. at 6, C.4.c.

[15] The term “blanket agricultural perserve” refers to the fact that, rather than creating individual preserves based on petitions from landowners, the county decided to implement one agricultural preserve that covered all agricultural zoned properties within its zone of influence.  Id. at 2, B.1.a. 

^[16]Id.

^[17]Bill Hatch, supra note 57.

^[18]Bill Hatch, Property Tax Breaks Under False Pretenses, Badlands Journal (Apr. 5, 2004), at http://badlandsjournal.com/getarch2.php?title=Property+tax+breaks+under+... (last visited Apr. 5, 2005).

^[19]Bill Hatch, supra note 57.

^[20] Merced County Board of Supervisors Regular Meeting, Williamson Act Working Group, Public Hearing on the Establishment of an Agricultural Preserve as per the Provisions of the California Land Conservation Act of 1965, at 12 (Aug. 8, 2000), available at http://web.co.merced.ca.us/bos/pdfs/2000sam/08082000F.pdf (last visited Apr. 5, 2005).

^[21]Bill Hatch, supra note 276.

^[22]Bill Hatch, supra note 57; Tulare County Resource Management Agency, The Agricultural Preserve Program as Implemented in Tulare County, Board of Supervisors Res., at 4 (1999) (“The Board of Supervisors creates an Agricultural Preserve at the request of the landowner.”), available at http://www.co.tulare.ca.us/cpb/documents/THE%20AGRICULTURAL%20PRESERVE%2...'The%20Agricultural%20Preserve%20Program%20as%20Implemented%20in%20Tulare%20County'  (last visited Apr. 5, 2005).  Tulare County established its first Agricultural Preserves in 1967.  Id.

^[23] County of Merced, supra note 271, at 2, B.1.a.  See supra note 273, for a definition of “blanket agricultural preserve.”

[24] Stanislaus County Department of Planning and Community Development, Williamson Act Information, at 1 (1990) (on file with author).

^[25]Id. at 6.

^[26]Joint Committee on Open Space Lands, Final Report on the Extension of the Land Conservation Act to Recreational Land, 1970 Leg., 1969-1970 Reg. Sess. (1970), reprinted in App. J. of the Senate, vol. 1, at 15, 31 (1970).

^[27]Id.

^[28]Merced County Board of Supervisors Regular Meeting, supra note 278, at 11.

^[29]Id.

^[30]Id.

^[31]Kelsey v. Colwell, 30 Cal. App. 3d 590, 595 (Cal. Ct. App. 1973) (holding that a county or city’s implementation of the act is discretionary).

^[32]Merced County Board of Supervisors Regular Meeting, supra note 278, at 11.

[33] See discussion supra Part II-III.

[34] Id.

^[35]Merced County Board of Supervisors Regular Meeting, supra note 278, at 11.

[36] Id.

[37] See discussion supra Part II.

^[38]Id.

^[39]Id.

^[40]Id.

^[41]Cal. Gov. Code § 51231 (2004).

^[42]Gonzales v. City of San Jose, 125 Cal. App. 4th 1127, 1134-35 (2004) (establishing that a State law of statewide concern preempts local laws).

^[43]See discussion supra Part II.

^[44]See discussion supra Part III.

^[45]County of Merced, supra note 271, at 3, B.3.a.

^[46]Id.

^[47]See Gonzales v. City of San Jose, 125 Cal. App. 4th 1127, 1134-35 (2004) (establishing that a State law of statewide concern preempts local laws).

^[48]See Kelsey v. Colwell, 30 Cal. App. 3d 590, 595 (Cal. Ct. App. 1973) (holding that the Legislature used discretionary language when it created the Williamson Act and that is not mandatory for a county or city to participate in the act).

^[49]See discussion supra Part III; see also infra notes 308-337 and accompanying text.

^[50]Videotape:  Merced County Board of Supervisors Regular Meeting, Continued Public Hearing to Amend the Merced County Agricultural Preserve (Feb. 10, 2004), available at rtsp://66.124.46.131/boardaudio/02-10-2004_bdsup.rm (last visited Apr. 5, 2005).

^[51]See Merced County Board of Supervisors Regular Meeting, Public hearing on Planning, at 14-15 (Apr. 27, 2004), available at http://web.co.merced.ca.us/bos/pdfs/2004sam/04272004.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning and Community Development, at 9-12 (Aug. 31, 2004), available at  http://web.co.merced.ca.us/bos/pdfs/2004sam/08312004.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning and Community Development, at 8-9 (Sept. 28, 2004), available at http://web.co.merced.ca.us/bos/pdfs/2004sam/09282004.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding General Plan Amendment No. 02006, Zone Change No. 02009, Property Line Adjustment No. 02033, at 11 (Apr. 29, 2003), available at http://web.co.merced.ca.us/bos/pdfs/2003sam/04292003.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding General Plan Amendment No. 99012, Parallel Zone Change No. 99013, and Conditional Use Permit No. 00006, at 11-13 (Jul. 24, 2001), available at http://web.co.merced.ca.us/bos/pdfs/2001sam/07242001F.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding General Plan Amendment No. 02003, Zone Change Application No. 02003, and Administrative Permit Application No. 02021, at 12-15 (Jul. 23, 2002), available at http://web.co.merced.ca.us/bos/pdfs/2002sam/07232002.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding General Plan Amendment No. 01001 and Zone Change No. 01002, at 9 (Oct. 2, 2001), available at http://web.co.merced.ca.us/bos/pdfs/2001sam/10022001F.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding General Plan Amendment No. 99001, Zone Change Application No. 99001 and Master Plan, Pacific ComTech Park, at 16-17 (Dec. 17, 2002), available at http://web.co.merced.ca.us/bos/pdfs/2002sam/12172002.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding Amendment of the Agricultural Preserve Under the California Land Conservation Act of 1965 (Williamson Act) in Merced County, at 10 (Mar. 25, 2003), available at http://web.co.merced.ca.us/bos/pdfs/2003sam/03252003.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Continued Public Hearing on Planning, at 7-8 (Feb. 10, 2004), available at http://web.co.merced.ca.us/bos/pdfs/2004sam/02102004.pdf (last visited Apr. 5, 2005).

^[52]Merced County Board of Supervisors Regular Meeting (Mar. 25, 2003), supra note 309, at 10; Merced County Board of Supervisors Regular Meeting (Feb. 10, 2004), supra note 309, at 7-8.

[53]See Merced County Board of Supervisors Regular Meeting (Apr. 27, 2004), supra note 309, at 14-15; Merced County Board of Supervisors Regular Meeting (Aug. 31, 2004), supra note 309, at 9-12; Merced County Board of Supervisors Regular Meeting (Sept. 28, 2004), supra note 309, at 8-9; Merced County Board of Supervisors Regular Meeting (Apr. 29, 2003), supra note 309, at 11; Merced County Board of Supervisors Regular Meeting (Jul. 24, 2001), supra note 309, at 11-13; Merced County Board of Supervisors Regular Meeting (Jul. 23, 2002), supra note 309, at 12-15; Merced County Board of Supervisors Regular Meeting (Oct. 2, 2001), supra note 309, at 9; Merced County Board of Supervisors Regular Meeting (Dec. 17, 2002), supra note 309, at 16-17.

^[54]Merced County Board of Supervisors Regular Meeting (Dec. 17, 2002), supra note 309, at 16-17.

^[55]Merced County Board of Supervisors Regular Meeting (Jul. 24, 2001), supra note 309, at 11-13.

^[56]Merced County Board of Supervisors Regular Meeting (Apr. 27, 2004), supra note 309, at 14-15.

^[57]Id.

^[58]Merced County Board of Supervisors Regular Meeting (Dec. 17, 2002), supra note 309, at 16-17; Merced County Board of Supervisors Regular Meeting (Jul. 24, 2001), supra note 309, at 11-13; Merced County Board of Supervisors Regular Meeting (Apr. 27, 2004), supra note 309, at 14-15. During the hearing on December 17, 2002, one supervisor abstained from voting.  Merced County Board of Supervisors Regular Meeting (Dec. 17, 2002), supra note 309, at 17.

[59]See discussion supra Part III.

^[60]See Merced County Board of Supervisors Regular Meeting (Apr. 27, 2004), supra note 309, at 14-15; Merced County Board of Supervisors Regular Meeting (Aug. 31, 2004), supra note 309, at 9-12; Merced County Board of Supervisors Regular Meeting (Sept. 28, 2004), supra note 309, at 8-9; Merced County Board of Supervisors Regular Meeting (Apr. 29, 2003), supra note 309, at 11; Merced County Board of Supervisors Regular Meeting (Jul. 24, 2001), supra note 309, at 11-13; Merced County Board of Supervisors Regular Meeting (Jul. 23, 2002), supra note 309, at 12-15; Merced County Board of Supervisors Regular Meeting (Oct. 2, 2001), supra note 309, at 9; Merced County Board of Supervisors Regular Meeting (Dec. 17, 2002), supra note 309, at 16-17; See discussion supra Part I.B.2.c.

^[61]See Merced County Board of Supervisors Regular Meeting (Apr. 27, 2004), supra note 309, at 14-15; Merced County Board of Supervisors Regular Meeting (Aug. 31, 2004), supra note 309, at 9-12; Merced County Board of Supervisors Regular Meeting (Sept. 28, 2004), supra note 309, at 8-9; Merced County Board of Supervisors Regular Meeting (Apr. 29, 2003), supra note 309, at 11; Merced County Board of Supervisors Regular Meeting (Jul. 24, 2001), supra note 309, at 11-13; Merced County Board of Supervisors Regular Meeting (Jul. 23, 2002), supra note 309, at 12-15; Merced County Board of Supervisors Regular Meeting (Oct. 2, 2001), supra note 309, at 9; Merced County Board of Supervisors Regular Meeting (Dec. 17, 2002), supra note 309, at 16-17.

^[62]See Merced County Board of Supervisors Regular Meeting (Apr. 27, 2004), supra note 309, at 14-15; Merced County Board of Supervisors Regular Meeting (Aug. 31, 2004), supra note 309, at 9-12; Merced County Board of Supervisors Regular Meeting (Sept. 28, 2004), supra note 309, at 8-9; Merced County Board of Supervisors Regular Meeting (Apr. 29, 2003), supra note 309, at 11; Merced County Board of Supervisors Regular Meeting (Jul. 24, 2001), supra note 309, at 11-13; Merced County Board of Supervisors Regular Meeting (Jul. 23, 2002), supra note 309, at 12-15; Merced County Board of Supervisors Regular Meeting (Oct. 2, 2001), supra note 309, at 9; Merced County Board of Supervisors Regular Meeting (Dec. 17, 2002), supra note 309, at 16-17.

[63] See discussion supra Part I.B.2.c.

[64] Id.

^[65]See S.B. 985, § 1(f)-(k), 1999 Leg., 1999-2000 Reg. Sess. (Ca. 1999) (enacted), available at
http://www.leginfo.ca.gov/pub/99-00/bill/sen/sb_0951-1000/sb_985_bill_19... (last visited Apr. 5, 2005).

[66]See discussion supra Part III.

^[67]Cal. Gov. Code § 51230 (2004); See discussion supra Part III.

^[68]S.B. 985, § 1(g), 1999 Leg., 1999-2000 Reg. Sess. (Ca. 1999) (enacted), available at
http://www.leginfo.ca.gov/pub/99-00/bill/sen/sb_0951-1000/sb_985_bill_19... (last visited Apr. 5, 2005).

^[69]Maps on file with author.

^[70]Merced County, Cal., Zoning Ordinances ch. 18, art. 2, § 1(b)(1) (2004).

^[71]Cal. Gov. Code §§ 51222, 51230 (2004); See discussion supra Part II.B.3.

^[72]See supra notes 328-329 and accompanying text. 

^[73]In Merced, landowners could begin contracting on January 1, 2001.  County of Merced, supra note 271, at 6, C.4.c.  Thus, the two-year window expired in early 2003.

^[74]See Merced County, Cal., Zoning Ordinances ch. 18, art. 2, § 1(b)(1) (2004).  In Merced County, A-1-40 zoning requires a minimum parcel size of forty acres.  Id.  This forty-acre minimum is compatible with the forty-acre minimum parcel size requirement for nonprime agricultural land within an agricultural preserve.  Cal. Gov. Code §§ 51222, 51230 (2004); See discussion supra Part II.B.3.

^[75]See Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning and Community Development, at 8-9 (Mar. 18, 2003) (subdividing a thirty-three acre parcel below the minimum acreage allowed in Merced County’s agricultural preserve), available at http://web.co.merced.ca.us/bos/pdfs/2003sam/03182003.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding an Appeal of the Planning Commission Denial of Zone Variance Application No. 03001 and Minor Subdivision Application No. 03003, at 12 (Jun. 24, 2003) (subdividing a parcel into 11.2 and 1.7 acre parcels), available at http://web.co.merced.ca.us/bos/pdfs/2003sam/06242003.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning Regarding an Appeal of Denial of Zone Variance Application No. 01023 and Minor Subdivision Application No. 01057, at 8-10 (Mar. 12, 2002) (subdividing a parcel into 2.75 and five acre parcels), available at http://web.co.merced.ca.us/bos/pdfs/2002sam/03122002.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning and Community Development, at 10-11 (Aug. 20, 2002) (subdividing a parcel into 4.2, 18.7, and 19.1 acre parcels), available at http://web.co.merced.ca.us/bos/pdfs/2002sam/08202002.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning and Community Development, at 6-7 (Sep. 24, 2002) (subdividing a parcel into 2.4 and one acre parcels), available at http://web.co.merced.ca.us/bos/pdfs/2002sam/09242002.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning and Community Development Continued from October 8, 2002, at 11-12 (Oct. 22, 2002) (subdividing a parcel into 1.59 and one acre parcels), available at http://web.co.merced.ca.us/bos/pdfs/2002sam/10222002.pdf (last visited Apr. 5, 2005); Merced County Board of Supervisors Regular Meeting, Public Hearing on Planning and Community Development, at 12-13 (Dec. 3, 2002) (subdividing a parcel into 13.4 and 4.4 acre parcels), available at http://web.co.merced.ca.us/bos/pdfs/2002sam/12032002.pdf (last visited Apr. 5, 2005).

^[76]See Merced County Board of Supervisors Regular Meeting (Mar. 18, 2003), supra note 333, at 8-9; Merced County Board of Supervisors Regular Meeting (Jun. 24, 2003), supra note 333, at 12; Merced County Board of Supervisors Regular Meeting (Mar. 12, 2002), supra note 333, at 8-10; Merced County Board of Supervisors Regular Meeting (Aug. 20, 2002), supra note 333, at 10-11; Merced County Board of Supervisors Regular Meeting (Sep. 24, 2002), supra note 333, at 6-7; Merced County Board of Supervisors Regular Meeting (Oct. 22, 2002), supra note 333, at 11-12; Merced County Board of Supervisors Regular Meeting (Dec. 3, 2002), supra note 333, at 12-13.

^[77]Merced County Board of Supervisors Regular Meeting (Mar. 18, 2003), supra note 333, at 8-9.

^[78]Merced County Board of Supervisors Regular Meeting (Jun. 24, 2003), supra note 333, at 12.

^[79]See Merced County Board of Supervisors Regular Meeting (Mar. 18, 2003), supra note 333, at 8-9; Merced County Board of Supervisors Regular Meeting (Jun. 24, 2003), supra note 333, at 12; Merced County Board of Supervisors Regular Meeting (Mar. 12, 2002), supra note 333, at 8-10; Merced County Board of Supervisors Regular Meeting (Aug. 20, 2002), supra note 333, at 10-11; Merced County Board of Supervisors Regular Meeting (Sep. 24, 2002), supra note 333, at 6-7; Merced County Board of Supervisors Regular Meeting (Oct. 22, 2002), supra note 333, at 11-12; Merced County Board of Supervisors Regular Meeting (Dec. 3, 2002), supra note 333, at 12-13.

^[80]Merced County Board of Supervisors Regular Meeting (Feb. 10, 2004), supra note 309, at 7-8 (“[W]orking with county council we determined that in order to take land out [of the Agricultural Preserve] we needed to go through the env. Review process under CEQA.”).

^[81]See discussion supra Part III.B-C.

^[82]See Merced County Board of Supervisors Regular Meeting (Mar. 25, 2003), supra note 309, at 10; Merced County Board of Supervisors Regular Meeting (Feb. 10, 2004), supra note 309, at 7-8.

[83]Merced County Board of Supervisors Regular Meeting (Mar. 25, 2003), supra note 309, at 10; Merced County Board of Supervisors Regular Meeting (Feb. 10, 2004), supra note 309, at 7-8.

^[84]O’Bryant Email, supra note 22.

^[85]Id.

^[86]See discussion supra Part V.

^[87]See S.B. 985, § 1(a), (m), 1999 Leg., 1999-2000 Reg. Sess. (Ca. 1999) (establishing that the Williamson Act was intended to promote the long-term conservation of agricultural land), available at
http://www.leginfo.ca.gov/pub/99-00/bill/sen/sb_0951-1000/sb_985_bill_19... (last visited Apr. 5, 2005); see also discussion supra Parts I.C, III.A.

^[88]See discussion supra Part I.C.

^[89]People ex rel. Dept. of Conservation v. Triplett, 48 Cal. App. 4th 233, 253 (Cal. Ct. App. 1996) (citing Kim v. Servosnax, Inc., 10 Cal. App. 4th 1346, 1356 (Cal. Ct. App. 1992)).

[90] Id.

^[91]Id.; Cal. Gov’t Code § 51237.5 (2004).

^[92]Id.

^[93]2004 Status Report, supra note 6, at 18.

^[94]Id.