Cleveland Nat'l Forest Found. v. Cnty. of San Diego

• Decision Date: 25 July 2019
• Docket Number: D073744
• Citation: 37 Cal.App.5th 1021,250 Cal.Rptr.3d 305
• Court: California Court of Appeals Court of Appeals
• Parties: CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO, Defendant and Respondent; Genesee Properties, Inc. Real Party in Interest and Respondent.

37 Cal.App.5th 1021

250 Cal.Rptr.3d 305

CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants,

v. COUNTY OF SAN DIEGO, Defendant and Respondent;Genesee Properties, Inc. Real Party in Interest and Respondent.

D073744

Court of Appeal, Fourth District, Division 1, California.

Filed July 25, 2019

As Modified on Denial of Rehearing August 21, 2019

Shute, Mihaly & Weinberger and Catherine C. Engberg, Gabriel M.B. Ross, San Francisco, Marlene Dehlinger; Coast Law Group and Marco Antonio Gonzalez, Encinitas, for Plaintiffs and Appellants.

Lounsbery Ferguson Altona & Peak and Jacqueline Suzanne S. Vinaccia, Escondido, for Defendant and Respondent.

Allen Matkins Leck Gamble Mallory & Natsis and Jeffrey A. Chine, San Diego, for Real Party in Interest and Respondent.

O'ROURKE, J.

Real party in interest and respondent Genesee Properties, Inc. (Genesee) sought tentative map approval from respondent County of San Diego (the County) for a 24-lot subdivision on 1416.5 acres of land in San Diego County known as the Hoskings Ranch (the property). The property is within a County-designated agricultural preserve and a majority of it is subject to a Williamson Act (also known as the California Land Conservation Act of 1965; Gov. Code,¹ § 51200 et seq. ) contract requiring that the land be restricted to agricultural and compatible uses. The County Board of Supervisors (the Board) adopted a resolution conditionally approving the tentative map, finding in part that the subdivision "will not result in residential development not incidental to the commercial agricultural use of the land" pursuant to section 66474.4 of the Subdivision Map Act (§ 66410 et seq.; the Map Act). Plaintiffs and appellants Cleveland National Forest Foundation and others (collectively, Cleveland)² unsuccessfully petitioned for a writ of mandate, as well as injunctive and declaratory relief, challenging the legality of the Board's approval. On appeal, Cleveland contends the County's approval of the tentative map violates section 66474.4 and undermines the Williamson Act by permitting a residential, rather than agricultural, subdivision on the property and giving the property developers a valuable residential entitlement while they are still receiving a taxpayer subsidy intended for those who maintain the land in agricultural or compatible nonurban uses.

The County and Genesee jointly respond first that Cleveland's failure to exhaust administrative remedies effectively negates the appeal, and that Cleveland has improperly raised new arguments that it did not make in the trial court during the administrative process. They argue the subdivision complies with the Map Act, Cleveland has not overcome the legal presumption that the project will sustain agricultural uses, and substantial evidence otherwise supports the Board's findings.

Construing section 66474.4 in keeping with the land preservation goals and intent of the Williamson Act, whose principles the Legislature incorporated into that section, we conclude the Board's finding is not supported by substantial evidence in light of the whole record. As a result, the County's conditional approval of the proposed tentative map does not comply with the Map Act, and constitutes an abuse of discretion. We reverse the judgment and remand with directions set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

The property is located on 1416.5 acres of land in an unincorporated area of east-central San Diego County, approximately one mile southwest of the town of Julian.³ It is within a County-established agricultural preserve (the Pine Hills-Boulder Creek agricultural preserve No. 28). An agricultural preserve is "an area devoted to either agricultural use, ..., recreational use ..., or open-space use ..., or any combination of those uses." (§ 51201, subd. (d).) The property has undeveloped steep slopes and rolling hills that at previous times had been used for cattle grazing. There is no indication the property has been subjected to agricultural uses such as tilling and plowing.

Approximately 1291.5 acres of the property is subject to a Williamson Act contract (and amendments) requiring that the premises "shall not be used for any purposes other than agricultural uses or compatible uses" and prohibiting subdivision unless it meets specified requirements.⁴ The contract requires 40-acre minimum lot sizes on all but 161 acres, and 160-acre minimum lots on the remaining 161 acres. The Williamson Act is intended to conserve agricultural land by having local government establish and regulate agricultural preserves and execute land conservation contracts with landowners restricting the owners' uses. ( Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 851, 171 Cal.Rptr. 619, 623 P.2d 180, superseded by statute on other grounds as stated in Friends of East Willits Valley v. County of Mendocino (2002) 101 Cal.App.4th 191, 204-205, 123 Cal.Rptr.2d 708 ; County of Humboldt v. McKee (2008) 165 Cal.App.4th 1476, 1481, 82 Cal.Rptr.3d 38.) "In return for accepting restrictions on the land, the landowner is ‘guaranteed a relatively stable tax base, founded on the value of the land for open space use only and unaffected by its development potential.’ " ( County of Humboldt , at pp. 1481-1482, 82 Cal.Rptr.3d 38 ; see Sierra Club , at p. 851, 171 Cal.Rptr. 619, 623 P.2d 180.) When land is subject to a Williamson Act contract, a legislative body "shall deny approval of a tentative [subdivision] map ... if it finds that either the resulting parcels following a subdivision of that land would be too small to sustain their agricultural use or the subdivision will result in residential development not incidental to the commercial agricultural use of the land ...." (§ 66474.4.)

A. 2003 Tentative Map Application

Genesee first applied for a tentative map in May 2003, proposing a 33-lot subdivision with lot sizes between 40 and 62 acres. Both the County's Planning Commission (the Commission) and the then Department of Planning and Land Use (the Department; now Planning and Development Services) recommended the application be denied based on section 66474.4. Observing that cattle grazing operations had ceased several years earlier because it was not economically viable, the Commission and Department found no basis to determine the contemplated residential development would be "merely ‘incidental to the commercial agriculture ....’ " The Department had asked the California Department of Conservation to review the project. That agency concluded the proposed subdivision was inconsistent with the Williamson Act contract; it observed the notice of preparation did not ascribe any agriculture purpose but described earthwork for graded pads, access roads, and private drives, as well as extensions for utilities with wells and septic systems. The Department of Conservation specifically addressed and rejected the assertion that the Map Act allowed the subdivision, reasoning residential development was not the purpose of the subdivision nor was it incidental to agriculture use: "The subdivision will presumably allow at least one homesite on each new parcel. The Department cannot envision a scenario wherein such an increase in residential development would be incidental to the commercial agricultural use of the 1,416.5-acre property. In addition, the subdivision will reduce economies of scale and make the commercial viability of livestock use on 40 to 62 acre parcels impractical. Therefore, the Department concludes that the subdivision would result in residential development not incidental to the agricultural use of the land, and the tentative map must be denied pursuant to [section] 66474.4."

At the September 2006 Board hearing on the matter, Genesee relied on a Williamson Act presumption that minimum 40-acre lots were adequate for agricultural use. It also represented that it had proposed a "no-build" concession to staff, namely, it would agree not to build any houses while the Williamson Act contract was in effect. Its representative pointed to small two-to-20-acre winery and orchard farming operations in the Julian area that were "operationally viable," stating such opportunities existed on the property as well. Genesee asked to continue to work with staff on the matter. Rather than deny the application, the Board voted to continue the item and directed staff to work with Genesee, continue processing the project, and bring it back when they resolved the issues.

B. The Renewed Tentative Map Application

Genesee and County staff continued discussions in 2006, 2007 and 2008. In 2008, Genesee submitted an agricultural capacity analysis and proposed a condition for an easement requiring agriculture to be established before issuance of a residential building permit. The Department continued to advise Genesee that the creation of new lots under that proposal would not meet Williamson Act requirements absent any active agricultural operation. It required Genesee to establish active agriculture on the property, and within specified time periods provide evidence that an active, legal primary agricultural use had been established on the land. At some point, Genesee prepared a "screencheck" draft Environmental Impact Report (DEIR) pursuant to the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ).

In 2009 and 2011, the County continued to identify the Map Act issue as a major project issue, stating based on the DEIR and agricultural analysis that insufficient evidence demonstrated the primary use of the property would be agriculture. It stated there was no current agriculture in existence nor was there any guarantee that agriculture would be established on the project site by future residents, and it was unclear whether adequate groundwater was available to support both agricultural and residential use. The County suggested Genesee had two options: either cancel the Williamson Act contract or file a notice of nonrenewal, after which...