Resolution No. RESOLUTION OF THE BOARD OF SUPERVISORS OF IMPERIAL COUNTY CALIFORNIA, GRANTING TENTATIVE APPROVAL OF CANCELLATION OF WILLIAMSON ACT LAND CONSERVATION CONTRACT ON LAND LOCATED AT 7096 ENGLISH ROAD, NORTHWEST OF CALIPATRIA, CA (APNs 022-130-005-000 & 022-160-005-000) AND MAKING CEQA FINDINGS The following resolution is now offered and read: WHEREAS, John E. and Teresa A. Wiest, JTs and Bill Wiest Ranches, Inc. ( Landowners ) own approximately 803-acres in two parcels at English Road in County of Imperial, California, Assessor s Parcel Numbers ( APNs ) 022-130-005-000 and 022-160-005-000 ( Property ) that are subject to Agricultural Preserve No. 21, Land Conservation Contract 2001-001 ( Contract ) executed by the County of Imperial and the Owners pursuant to the California Land Conservation Act of 1965 ( Williamson Act ), Government Code section 51200, et. seq.; and WHEREAS, in May 2011, John E. and Teresa A. Wiest, JTs and Bill Wiest Ranches, Inc. and 97WI 8ME, LLC (Landowners/Applicants) applied for a Conditional Use Permit # 10-0037 for the construction and operation of a 155-MW photovoltaic (PV) solar farm, entitled Midway Solar Farm II, on the above property. An Environmental Impact Report (EIR), whose CEQA Findings are attached hereto as Exhibit A, was considered by the Imperial County Planning Commission on July 11, 2012, and the Planning Commission recommended certification to the Board; and WHEREAS, the Landowners filed with the County a Notice of Nonrenewal Land Conservation Contract and a petition to cancel the Contract on the Property pursuant to the Williamson Act; and WHEREAS, the County has notified the California Department of Conservation of the Contract cancellation petition pursuant to Government Code, Section 51284.1. The Department of Conservation submitted comments to the County, and the Board of Supervisors has considered those comments; and WHEREAS, the Imperial County Assessor s office, on July 24, 2012 and July 26, 2012, certified the cancellation valuation of the land for the purpose of determining the cancellation fee pursuant to Government Code, Section 51283, which certification is attached hereto as Exhibit B; and WHEREAS, at its August 21, 2012 regular meeting, the Board of Supervisors held a duly noticed public hearing to consider the tentative approval of the Contract cancellation. Notice of this hearing was published in full compliance with Government Code, Section 51284 and all other applicable requirements; and WHEREAS, the Board has considered all of the oral and written evidence submitted regarding the Contract cancellation. 1
THE BOARD OF SUPERVISORS HEREBY MAKES THE FOLLOWING FINDINGS WITH RESPECT TO CEQA: (a) The Board finds that the impacts of the Midway Solar Farm II Project were adequately analyzed in the Environmental Impact Report and, as indicated in the attachment, no further environmental review for the Project is required; (b) The Board finds that there is no substantial evidence in the record that the Project or the Contract cancellation will have any significant, adverse environmental effects on the environment; and (c) The Board designates the Clerk of the Board of Supervisors and the County Planning and Development Services Department as the location and custodian of the documents and other materials constituting the record of proceedings upon which this decision is based. THE BOARD OF SUPERVISORS HEREBY MAKES THE FOLLOWING FINDINGS WITH RESPECT TO THE TENTATIVE APPROVAL OF THE CONTRACT CANCELLATION: 1. Cancellation of the Contract is consistent with the purposes of the Williamson Act for the following reasons: Finding 1: Cancellation is for land on which a Notice of Nonrenewal has been served pursuant to Government Code Section 51245. The required Notice of Nonrenewal was recorded on November 10, 2010 (Document #2010-028610). Finding 2: The removal of adjacent lands from agricultural use is not likely. The proposed cancellation is not likely to result in the removal of adjacent lands from agricultural use because the proposed use is a solar farm. Typically, cancellation of a Williamson Act contract in an area may result in the removal of adjacent lands from agricultural use if the proposed use for the property is an incompatible use or is a use that encourages leap frog urban development. The types of development projects that in other parts of the state have resulted in the removal of adjacent lands from agricultural use have included traditional residential and commercial development. Solar farms, unlike typical residential or commercial development projects, do not encourage the premature removal of adjacent lands because solar farms, as part of their approval and development, generally do not involve the construction of backbone infrastructure (water and sewer) that would accelerate or encourage leap frog urban development. Additionally, the cancellation is unlikely to be the cause of the removal of additional property from agricultural use because: 1. Agricultural operations in the Imperial County have occurred on parcels of land with or without agricultural contracts regardless of whether those parcels are located within or outside of an agricultural preserve. Therefore, the cancellation of this contract is not likely to result in the removal of adjacent lands from agricultural use. 2. Backbone Infrastructure (water and sewer) is not being proposed nor is required as part of this solar farm development project. 3. Locating the solar farm within the agricultural property could be found to be a compatible use in the 2
agricultural preserve and the County as a whole. More specifically, the State Department of Conservation has indicated that in some instances Counties, e.g. Imperial County may determine the solar farm to be a compatible use with the underlying agricultural use. The County of Imperial could make this analysis whether or not the proposed solar farm significantly interferes with adjacent agricultural operations. 4. Locating the solar farm in this area would not significantly interfere with County-wide agricultural operations. More specifically, the removal of this land from agricultural productions would represent approximately 0.3% of the total amount of land devoted to agricultural production in the County (540,942 acres/state DOC). The removal of this land is not likely to result in the removal of adjacent lands from agricultural use. Therefore, the cancellation of the contract for this property will not result in the removal of adjacent lands from agricultural use. Finding 3: The proposed alternative use is consistent with the applicable portions of the County General Plan. The General Plan, Land Use Element, designation for the subject parcel is Agriculture and zoned A-2-R- G (General Agriculture/Rural Geothermal Overlay Zone) and A-2-G (General Agriculture/ Geothermal Overlay Zone) in the Title 9, Land Use Ordinance. The A-2 zone s stated purpose is to designate areas that are suitable for agricultural land uses and intended primarily for agricultural uses (limited) and agricultural related compatible uses Section 90508.02 permits Electrical Power Generation Plants with the County s approval of a Conditional Use Permit (CUP). The proposed use is a 155-MW PV solar plant and with approval of the CUP is deemed consistent with the provisions of the County of Imperial General Plan and Land Use Ordinance. Therefore, the solar project will not change the General Plan designation or zone for the property and is considered consistent with the General Plan. Finding 4: Discontiguous patterns of urban development will not result. The cancellation of the Contract for the existing agricultural ground will not result in the removal of adjacent lands from agricultural use to a more urbanized environment. The temporary solar plant would not encourage removal of nearby lands nor encourage leap frog development of urban uses. Solar projects, unlike commercial or residential developments, do not involve the construction of background infrastructure, i.e. water or sewer lines, that would create the potential for future urbanized uses. The Landowners/Applicants have submitted a Site Restoration Plan with financial assurance/bonding cost estimate to return the property to an agricultural condition upon closure of solar plant facilities. Therefore, the proposed land use will not result in discontiguous patterns of urban development. Finding 5: There is no proximate non-contracted land which is both available and suitable for the proposed alternative use, or development of the contracted land would provide more contiguous patterns of urban development than development of proximate non-contracted land. There are no proximate non-contracted lands available and suitable for sitting a solar power plant according to the applicant s analysis. The unique siting requirements of a solar plant limit the number of parcels available and suitable for such use. The sitting of solar farm facilities largely is determined by the 3
need to locate: (1) at or very near to existing electrical transmission lines; (2) with available transmission capacity in the lines to carry the additional electricity produced; (3) which is a function not only of line capacity but also arrangement of the electrical grid to ensure balanced loads. This is important because utility scale photovoltaic solar energy is at the high-end of the price scale for the range of utility scale power generation (natural gas, solar, wind) and thus it is prudent to minimize additional costs such as extending transmission lines. Moreover, failure to include the Contract Parcels would create not only a hole in the Project but in essence create an island of Williamson Act land, surrounded by developed land and would segregate the two non contracted parcels on the east side of the Project, creating the need for easements and electric lines. Failure to include the Williamson Act parcels in the Project increases the irregularity of the Project borders resulting in a checkerboard development effect which is not consistent with the underlying Williamson Act policies and runs contrary to fundamental goals of land use planning. Minimizing irregularity of the Project reduces costs and allows for more efficient land use by minimizing need for fencing and setbacks. Even if the County did not find that the development of the Contract Parcels provided a more contiguous pattern of development than the development of non contracted land, there is no proximate non contracted land which is both available and suitable for the Project. 2. Alternatively, cancellation of the Contract is in the public interest for the following reasons: Finding 1: Other public concerns substantially outweigh the objectives of the Williamson Act. Solar photovoltaic electricity qualifies as a renewable energy source for the purposes of California's Renewables Portfolio Standards. In April 2011, Governor Brown signed Senate Bill 2 (First Extraordinary Session) which extends the current 20% renewable portfolio standard target in 2010 to a 33% renewables portfolio standard by December 31, 2020. Through a number of legislative actions and/or policies, the State has placed an importance on renewable energy as well as preserving farmland. There are many factors in determining whether the production of solar energy is of a higher public interest than the pre-existing agricultural use of the land. Some factors may include the quality of the soil, current agricultural production and the availability of reliable irrigation water. In addition, the project being proposed on this land would create a large number on new construction jobs in a county which suffers chronically high unemployment rates. Long-term permanent jobs associated with the project s operation are expected to be at least equivalent to those currently employed in the agricultural activities, and will be year-round and better-paying than the farm labor displaced. If the project moves forward to construction, the developer has also agreed to enter into a Public Benefit Agreement with the County of Imperial which will, among other things, guarantee Sales and Use Tax revenues as well as contribute to a Community Benefit Program which is expected to provide significant funding for other jobcreation activities within the county. Constructing and operating a PV facility for a temporary period of time would be a better use of the specific land at issue than its current use. The land could support a clean and renewable source of energy that is within the aforementioned State policy objective. 4
Finding 2: There is no proximate non-contracted land which is both available and suitable for the proposed alternative use, or development of the contracted land would provide more contiguous patterns of urban development than development of proximate non-contracted land. There are no proximate non-contracted lands available and suitable for sitting a solar power plant according to the applicant s analysis. The unique siting requirements of a solar plant limit the number of parcels available and suitable for such use. The sitting of solar farm facilities largely is determined by the need to locate: (1) at or very near to existing electrical transmission lines; (2) with available transmission capacity in the lines to carry the additional electricity produced; (3) which is a function not only of line capacity but also arrangement of the electrical grid to ensure balanced loads. This is important because utility scale photovoltaic solar energy is at the high-end of the price scale for the range of utility scale power generation (natural gas, solar, wind) and thus it is prudent to minimize additional costs such as extending transmission lines. Moreover, failure to include the Contract Parcels would create not only a hole in the Project but in essence create an island of Williamson Act land, surrounded by developed land and would segregate non contracted parcels creating the need for easements and electric lines. Failure to include the Williamson Act parcels in the Project increases the irregularity of the Project borders resulting in a checkerboard development effect which is not consistent with the underlying Williamson Act policies and runs contrary to fundamental goals of land use planning. Minimizing irregularity of the Project reduces costs and allows for more efficient land use by minimizing need for fencing and setbacks. Even if the County did not find that the development of the Contract Parcels provided a more contiguous pattern of development than the development of non contracted land, there is no proximate non contracted land which is both available and suitable for the Project. More specifically, the solar facility developer has contacted all land owners within a 3 mile radius from the solar facility site as well as those land owners along the IID s J line and its 230-kV line to determine if there is non contracted non prime land available to accommodate the solar facility. The results of the investigation indicated that some of the land contracted (approximately 9 acres) in APN 022-160-006-000 is prime farmland of higher quality, but adjacent landowners were not interested in leasing or selling their land. As illustrated by the maps on file with the Planning and Development Department the solar developer has made an earnest effort to locate the proposed solar facility on non prime non contracted farmland. The location of the project is limited to the southern portion of the County where there is a limited impact to prime farmlands in the Imperial Valley. Additionally, the solar developer has made an effort to locate the solar facility on marginal farm ground that despite its prime farmland designation still is not of the highest quality compared to other land in the Imperial Valley. More specifically, based on records on file with the Planning and Development Department, the productivity of the portions of the subject properties designated as Prime Farmland is not representative of the yields typically associated with agricultural land bearing a Prime Farmland designation. Historical data regarding the crops grown on these properties over the past ten years compared with adjacent properties that are not designated as Prime Farmland shows no substantial difference between production yields. The great majority of the solar facility site has been used to grow field crops such as Bermuda or Sudan grass. With regard to Williamson Act contracted properties, the solar developer has carefully designed the location of the solar facility to avoid other contracted lands in the vicinity of the project. In doing so, the solar 5
developer has actively minimized the amount of contracted properties that would be cancelled with the construction of this solar facility. Moreover, the solar developer has carefully selected the location of the solar facility to occupy portions of land that are not owned or controlled by a public agency, e.g. the City of Calipatria. 3. Based on the information provided by the Imperial County Assessor in Exhibit B, the Board finds that the cancellation fee of $5,557,000.00 is appropriate, and certifies to the Imperial County Auditor the amount of the cancellation fee. NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors of the County of Imperial, State of California, based upon all the oral and documentary evidence in the record, as follows: 1. The tentative approval of the Contract cancellation with respect to APN s 022-130-005-000 and 022-160-005-000 is hereby granted, and the conditions to be satisfied by the Landowners/Applicants before final Contract cancellation may be approved are set forth in Exhibit C attached hereto; and 2. Upon notification by the Landowners/Applicants that all of the conditions in Exhibit C have been satisfied, and following review and approval by the Planning & Development Services Department and County Counsel, the Clerk of the Board of Supervisors is delegated authority to execute a Certificate of Cancellation of the Contract and to cause the certificate to be recorded with the County Clerk s office. Michael W. Kelley, Chairperson Imperial County Board of Supervisors I hereby certify that the preceding resolution was taken by the Board of Supervisors at a meeting conducted on August 21, 2012 by the following vote: ATTEST: AYES: NOES: ABSENT: ABSTAIN: Sylvia Bermudez, Clerk of the Board of Supervisors 6
Exhibits to this Resolution: Exhibit A Environmental Impact Report CEQA Findings Exhibit B Imperial County Assessor s Certification of Cancellation Value Exhibit C Conditions for Issuance and Recordation of Certificate of Cancellation of Land Conservation Contract 7