On July 25, 2019 the Court of Appeal for the Fourth Appellate District published its opinion in Cleveland National Forest Foundation v. County of San Diego (2019) ___ Cal. App. 5th ___, which interpreted the clause “residential development not incidental to the commercial agricultural use of the land” in Section 66474.4 of the Government Code (“Section 66474.4”). This case marks the first interpretation of a part of the Subdivision Map Act that applies to property that is subject to the California Land Conservation Act of 1965, also known as the Williamson Act. Adopting an interpretation that promoted the conservation purposes of the Williamson Act, the Court found that the County should have denied the tentative maps for property subject to a Williamson Act contract.
In 2016 the County approved a tentative subdivision map for a 1416.5-acre property in a rural part of eastern San Diego County near the community of Julian. The vast majority of the property (1291.5 acres) was subject to a Williamson Act contract, which imposed restrictions on grading and other activities related to residential or urban use, and also limited the use of the property to agriculture and open space as allowed by the rules governing the County’s agricultural preservation program. The owner justified the project by showing that the area supported agritourism, the primary use of the property would remain in agriculture and open space, and any residential development of the property would be secondary (and therefore “incidental”) to agriculture. The owner also agreed to place an open space easement over 85% of the property and agreed that single family homes would not be constructed while the property remained subject to the Williamson Act.
Based on the owner’s agreement to preserve open space and other restrictions, the County Board of Supervisors determined that it was not required to deny the project under Section 66474.4 of the Government Code. That statute governs tentative map applications for properties subject to the Williamson Act, and requires a county to deny such an application if the resulting parcels “would be too small to sustain their agricultural use” or if the project proposes “residential development not incidental to the commercial use of agriculture.” However, those restrictions do not apply where the owner has agreed to place the Williamson Act contract into non-renewal and the project is proposed during the three-year period before the contract expires.
Finding that the parcels were each at least 59 acres in size, the County was persuaded that the parcels would be large enough to sustain continued agricultural use, in part because the statute allows the County to presume that a parcel of at least 40 acres (in the case of “non-prime” agricultural land) is large enough to sustain continued agricultural use. However, counties are not the primary agencies entrusted with administering the Williamson Act. That responsibility lies with the Department of Conservation, which opposed the project, and which had interpreted the phrase “residential development not incidental to the commercial agricultural use of the land” in Section 66474.4 to require the County to deny the project unless it found that the residential development was actually needed to provide housing for those engaged in commercial agriculture. The Department concluded that the Subdivision Map Act required the owner to first submit notice of non-renewal and wait until the last three years of the contract term, before seeking such a subdivision approval.
Because the case turned on the interpretation of the term “incidental” in Section 66474.4, the Court of Appeal applied independent review, and did not defer to the County’s interpretation, which was adopted by the trial court. Reversing, the Appellate Court found that the term “incidental” should be interpreted in light of the overall purpose of the statute, which was to further the public policy goals of preserving agricultural use and limiting the availability of real property tax savings to those actually engaged in commercial agriculture. Based on that interpretation, the Court held that “incidental residential development” must be “concomitant with” or “necessary for” the commercial agricultural use.
The record in the case established that the entire property was then used for grazing 140 head of cattle, which were tended by a few ranchers and cowhands. There was no evidence that the development proposed, which consisted of grading for roads, building pads and leach fields, was needed to sustain this commercial agricultural activity. Even though the tentative map would only allow the parcels to be made ready for the construction of homes and would delay actual home construction until after the Williamson Act contract expired, the court understood the term “residential development” to encompass these preparatory activities. The Court held that such activities “must be concomitant with and functionally necessary for commercial agricultural use.” Allowing the owner to retain the tax benefits under the Williamson Act while allowing development of house pads and roads in anticipation of home construction was inconsistent with the goals of the statute, the Court found.
The Court’s resolution of the case provides useful guidance for interpreting proposals to subdivide properties that will remain subject to the Williamson Act. In those cases, allowing subdivision of the property must be supported by proof that the resulting residential development will be needed for the agricultural use. As explained by the court: “if residential development proposed by a tentative map has no relation to or is unnecessary for the commercial agricultural use, the law mandates that the local body deny tentative map approval.”
William W. Abbott is a shareholder at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.