The letter, below, is one that was submitted by Marin County Farm Bureau for the Local Coastal Plan hearing to take place on October 10, 2011 at the Marin Civic Center.
September 30, 2011
Marin County Planning Commission
c/o Kristin Drumm via email: MarinLCP@co.marin.ca.us
Re: Local Coastal Program Update: Agriculture – Allowable Uses and Standards
Dear Planning Commissioners:
The Board of Directors of the Marin County Farm Bureau appreciates this opportunity to comment on the Agriculture section of the Local Coastal Program (LCP). We believe strongly that the LCP needs to balance environmental protection and agricultural viability. Farmers and ranchers have protected the land with all of its various species and habitat, preserved open space and provided food for Bay Area residents and beyond. Because agriculture is such an important part of Marin’s economy, we feel that it needs strong protection in the updated LCP.
We have followed the Coastal Commission’s actions over the last several months and have reviewed the September 15, 2011 Memorandum from the Commission’s staff, and while we are pleased to see their support for protecting agriculture in the Coastal Zone, we believe there is an intrinsic misunderstanding about the mechanisms to accomplish this. Agriculture cannot be sustained unless farmers and ranchers are profitable, and they can’t be profitable when they’re struggling under burdensome regulations and restrictions. They need more, not fewer, options to be able to live on their land, make a living from their land, age in place on their land, house themselves and their families on their land, and supplement their income where they can. As Coastal Commission staff has requested a tour of the agricultural lands in order to come to resolution on the complicated issues, Marin County Farm Bureau welcomes the opportunity to host such a tour.
Program C-AG-1 Agricultural Lands and Resources
The first sentence reads “…Protect agricultural land, continued agricultural uses and the agricultural economy by maintaining parcels large enough to sustain agricultural production,” What is “large” enough? Some of the most productive and profitable ranches are on very small plots with very good row crop operations. This statement is also contradictory to the Countywide Plan’s policy of supporting “Small-Scale Diversification” We would like to see the words “maintaining parcels large enough to sustain agricultural production” removed.
Program C-AG-2 Coastal Agricultural Production Zone (C-APZ)
In the second paragraph, it reads “including one single-family dwelling per legal lot,
up to two intergenerational homes, agricultural worker housing, limited agricultural product sales and processing, non-profit agricultural tours, agricultural homestay facilities and bed and breakfast inns.”
We have several issues with this sentence. First, there are many ranches in Marin that have more than three homes for family members. We believe the words “up to two” should be removed. Additional homes should be allowed under a Conditional Use permit. The County would still have the ability to impose conditions, consistent with the law, but on the rare occasion involving a large parcel with multiple siblings , they should all be allowed to live there as long as they are still within the one home per sixty acre zoning.
Second, the words “non-profit” should also be removed. This is appalling to our entire Board and every rancher we know. For our LCP to dictate to us that we can no longer give tours of our own ranches is ridiculous. We believe our County should be supportive of all ranchers who wish to help educate the public about agriculture by giving tours. In the 1970’s and early 1980’s my mother gave tours of our dairy to every 2nd grade student in Novato without ever charging a dime. These efforts should be commended and appreciated, instead of prevented as the current draft LCP does. Policy C-AG-2.f Facilitate Agricultural Tourism seeks to add tours and support them as a Categorical Exclusion. It is odd to us that we have a policy supporting tours and another that won’t allow farmers and ranchers to give them.
The third paragraph says “consistent with the standards and criteria of Program C-AG-2.1.b and Policies C-AG-3.2 and -5.1.” Could you please clarify where these policies are? They do not exist in the Draft LCP.
Program C-AG-2.b Develop Implementation Measures for the C-APZ
- 1. Definitions. We would like to see the definition of agriculture production expanded. Agriculture is an ever evolving industry and we need to be forward thinking about how to define what it is we do since we may be trying new things in the future. Currently there is listed a number of activities in a-j. We would like to specifically add letter “k. Greenhouses”. In addition, the opening paragraph should add a sentence that references the California Department of Food and Agriculture’s definition of agriculture. That way if a question ever does arise about a new type of agriculture we can use this as a reference since they are always updating it to keep up with the latest trends. These changes should also be added to the definition of “Agricultural Production” in the Proposed Development Code Amendments on page 93.
1. 2. Principal Permitted Uses. Processing facilities are limited to 2,500 square feet. Earlier drafts of the LCP had allowed for up to 5,000 square feet and we believe this should be reinstated at a minimum. Such a small facility may not be able to handle the storage space of the processed product. Such a small space may leave the farmer building an inefficient plant that may not be worth building at all. We have the same concerns with regards to the retail sales of agriculture products. A maximum of 250 square feet is extremely small, and for that matter so is 500 square feet which the plan had earlier allowed. Please reinstate it to a minimum of a 500 square foot limit.
Also under principal permitted uses, letter “I” requires tours to be conducted by non-profit organizations. Please see my concerns above and remove these words.
- Conditional Uses. Letter b. allows for a second intergenerational housing unit. While we appreciate the Planning Commission’s willingness to allow for intergenerational housing, it is problematic that only one additional unit is permissible under the criteria of a “use” permit. First of all, the zoning is designed for up to one home per 60 acres, so very large ranches would only be allowed the same number of homes as a smaller ranch that had 180 acres. This would be an illegal downzoning of all of the larger agricultural properties in the County. Secondly, there are many properties in Marin that already have more than three homes for family members. Larger ranches can have multiple businesses on them with multiple siblings running each aspect of the operation(s). In the Countywide Plan, Policy AG-2.3 says “Support Small-Scale Diversification.” The more diversified a farm is, the more family participants you may have involved. We strongly believe that if you do have a family who wishes to build an extra home for another child they should be able to, so long as they do not go over the one home per 60 acres.
- 4. Conditional Uses. Letter p. Hunting and Fishing Clubs. Since hunting is regulated by the Department of Fish and Game we can’t understand why this is listed here. We believe that what the LCP is trying to say is that a use permit would be required for hunting and fishing club facilities. Please add the word “facilities” if we are correct in this assumption. We also do not understand why Private residential, recreational facilities (letter r.) should require a Use permit. If a rancher wants to put a basketball hoop in his driveway or build a swimming pool for his children or for his own personal physical fitness or therapy, these should be permitted without requiring a Use permit.
- 5. Conditional Uses. There is much confusion stemming from the use and interpretation of the words “allowed” and “permitted.” One of the single biggest complaints we hear from agricultural landowners, including those in Marin’s Inland Rural Corridor who recognize that zoning certified in the LCP will eventually apply to them, is the illegal downzoning effect of the draft language regarding allowed residential uses. While the existing Local Coastal Program Unit 2 lists “one single-family dwelling per parcel” as a Permitted use, nowhere does it disallow additional single-family dwellings under a different permit requirement. Proposed draft language gives the false impression that owners of land greater than 60 acres have no development potential whatsoever beyond the Agricultural Owner/Operator Single-family dwelling, Intergenerational home(s) and Agricultural worker housing. The list of Conditional uses fails to include any specific provision for permitting additional single-family dwelling units undertaken without a land division. To clarify this, please add to the list of 4. Conditional Uses: “Single-family dwellings, attached or detached, within the maximum density of one unit per 60 acres, which do not conflict with agricultural uses.” In the related Draft Development Code Table 5-1-c on page 22, Note (8) incorrectly states, “Only one single-family dwelling per legal lot allowed.” This is inconsistent with existing law and must be deleted.
- 6. Conditional Uses. Also pertaining to residential use, the list fails to include Residential second units, and Draft Development Code Table 5-1-c indicates that they are a “Use not allowed.” Not only does State law encourage second units to provide for affordable housing, but the County’s own Housing Impact Fee ordinance penalizes developers who do not provide second units. There is no reason why second units should be excluded in the Coastal Zone. Second units and guest houses have the potential to benefit the community by providing much-needed housing for the local workforce, which will provide supplemental income to farmers and ranchers. Second units will also provide housing for caregivers or caretakers, whose assistance will allow agricultural landowners to age in place on their land. Disallowing these dwellings is also illegal under the current one-house-per-60-acre zoning. Please show them as Conditional Uses in both the LCP and the Code.
Program C-AG-2.e Establish Criteria for On-site Agricultural Sales and Processing.
This section about retail sales and processing facilities has been a difficult issue to deal with. We greatly appreciate the County’s support of these facilities and we equally appreciate Commissioner Holland’s work on creating this section from scratch. With that said we do have some concerns about the language.
1. Retail sales that meet the following standards shall be allowed as a Principal Permitted Use:
a. Retail sales must be conducted:
i. Without a structure (e.g. using a card table, umbrella, tailgate, etc.); or
ii. From a structure or part of a structure that does not exceed 250 sq ft in size.
The size of just 250 square feet is too small to allow such a retail venture to be profitable. Without profits, farming cannot be sustained. Please allow at least 500 square feet, which is still a small sales facility.
c. On-site consumption, tastings of value-added product, and picnic or recreational facilities
shall not be allowed under a Permitted Use (these would all require a Use Permit, except
as noted for retail sales within a processing facility).
While we understand the need for a use permit to build picnic or recreational facilities, we do not understand why consumption or tastings require a use permit, whether they are in a processing facility or not. Many sales will come from the ability to let the public taste our products in the sales facility as opposed to the processing facility. This paragraph should be rewritten to read as follows:
c. On-site consumption, tastings of value-added product, and pPicnic or and recreational facilities
shall not be allowed under a Permitted Use (these would all both require a Use Permit. , except
as noted for retail sales within a processing facility).
3. Design Review for a structure used as a sales facility.
b. A sales structure that is within 300 ft of a street or a separate-ownership property line and
does not exceed 250 sq ft in size shall be exempt from Design Review or eligible for
Minor Design Review if either (1) the structure has no foundation (and is exempt from
building permit), or (2) at least three of the structure’s walls are each no more than 50%
solid (including sides with no walls), and (3) the structure’s height does not exceed 15 ft.
c. An on-site sales facility that does not exceed 250 sq ft in size and is more than 300 ft
from any street or separate-ownership property line (and is not within a processing
facility) should also be covered by the Categorical Exclusion Order; in addition, such a
facility shall also be exempt from Design Review.
Again, we believe the size should be increased to at least 500 square feet in both of the preceding paragraphs.
4. Retail sales within an approved processing facility.
a. Retail sales of agricultural product shall be a Permitted Use and covered by exclusion
order or de minimis permit when either (a) such sales are incidental to tours that are not
subject to the requirement for a use permit, or (b) the sales are conducted wholly within
an approved agricultural processing facility and the following are all applicable:
iii. A use permit for public visitation or tours of the processing facility has been issued.
The problem with this is that tours are being subject to a Use Permit in order to make sales. No tours regardless of who is giving them should require a use permit. If we go through the permit process to build a processing facility and retails sales room within that facility, we should not have to get another use permit to give tours to make the sales. We should be allowed to educate the public and sell them product if they wish to buy it from within the walls of our processing facility. There is a growing movement for people to want to buy locally-grown food. The LCP should support and promote this environmentally and socioeconomically sound trend.
1. Processing as a Permitted Use
a. Processing of agricultural product shall be a Permitted Use only if conducted in a facility not exceeding 2,500 sq ft in size that is located at least 300 ft from any street or separate ownership property line and is otherwise consistent with the LCP.
We strongly believe that 2,500 square feet is too small to build an efficient processing facility with the necessary storage for the product. During the workshop process, your commission convened a special committee to discuss these parameters. Their findings were presented by UCCE’s David Lewis, who stressed among other things the need for increased space to age and store cheese and to be able to diversify and be flexible in the marketplace. The committee’s conclusions were ignored. Six of the seven existing or developing farmstead artisan cheese operations in Marin are larger than 2,500 square feet. Like other agricultural product processing, these cheese operations require both “make” facilities and storage and aging space. Please reinstate the 5,000 square foot limit that was in previous drafts.
d. A Conditional Use Permit shall be required if the processing facility is open routinely to public visitation or if public tours are conducted of the processing facility on a scheduled or regular basis, or are operated by a for-profit entity, or are conducted (including by a non-profit entity) on more than an infrequent basis.
There are two major problems with this. First, if tours are given “regularly” or on “more than an infrequent basis” we have to get a Use Permit. We strongly believe this wrong and unfair. Farmers and ranchers should be commended for taking the time to educate the public by allowing them to tour our ranches and processing facilities if we so choose. Secondly, and what we consider to be very offensive, is the phrase “or are operated by a for-profit entity.” As ranchers we operate our businesses for profit. We need to feed our families and buy health insurance and deal with all the other costs of living. This aforementioned phrase means that ranchers can’t give even one tour of their own processing facility. This needs to be removed.
C-AG-5 Intergenerational Housing. Support the preservation of family farms by facilitating multigenerational operation and succession. Up to two additional dwelling units per legal lot may be permitted in the C-APZ designation for members of the farm operator’s or owner’s immediate family.
While we greatly appreciate staff and the Commission for supporting intergenerational housing as a Principal Permitted use, we are concerned that it would only allow up to “two” intergenerational homes. It is our understanding that additional homes could be built if a Master Plan were completed. This adds yet another layer of costs and issues to be dealt with. For additional intergenerational houses, the added burden of a master plan is exorbitant. We would like to see this sentence amended by removing the words “Up to two.”
C-AG-6 Non-Agricultural Development of Agricultural Lands. Require that non-agricultural
development, including division of agricultural lands shall only be allowed upon demonstration that long-term productivity on each parcel created would be maintained and enhanced as a result of such development.
Our concerns here are that the productivity needs to be maintained and enhanced. How does the County propose to measure future long-term productivity? Will it require producers to make their financial and business plans public? How will it factor in changes associated with fluctuating weather, climate and economic conditions? We agree that it would benefit everybody if the productivity could be maintained, but it is not practical or possible to legislate something that is dependent upon unforeseeable circumstances or conditions. Further, a requirement that productivity be enhanced is also a problem. Enhancing agricultural productivity requires money and that is something very few of us have. We feel that this program is prejudiced against ranchers who do not have enough money to enhance their ranches. It will allow for wealthy ranch buyers to spend some more money and split their parcels, which could indeed allow for enhanced agricultural productivity, but ranchers who are fifth- or sixth-generation farmers struggling to pay bills will not have that option. This is discrimination. Please remove the words “and enhance,” and clarify this requirement to address our other concerns.
C-AG-7 Master Plan for Non-Agricultural Development of Agricultural Production Zone
(C-APZ) Lands. Prior to approval of non-agricultural development, including a land division, in the Coastal Agricultural Production Zone, require submittal of a Master Plan or other appropriate development applications showing how the development would be consistent with the LCP. Approve a proposed Master Plan or development application and determine the density of permitted residential units only upon making all of the following findings and incorporating the conditions listed below. No Master Plan shall be required for:
1. Agricultural activities that are accessory and incidental to, in support of, and compatible with
2. Development that is Categorically Excluded;
3. Up to two intergenerational homes; or
4. A single-family dwelling on a parcel having no residual development potential for additional dwellings, other than agricultural worker housing.
In number 3 above, please remove the words “up to two.”
All of the following development standards apply:
1. The development will protect and enhance continued agricultural use, and contribute to agricultural viability.
Please change the word “enhance” to “maintain.”
- 3. Consistent with State and federal laws, a permanent agricultural conservation easement over that portion of the property not used for physical development or services shall be required for proposed land divisions, nonagricultural development, and multiple residential projects, other than agricultural worker housing or intergenerational housing, to promote the long-term preservation of these lands. Only agricultural and compatible uses shall be allowed under the easement. In addition, the County shall require the execution of a covenant not to divide for the parcels created under this division so that each will be retained as a single unit and are not further subdivided.
While this paragraph starts off by saying “Consistent with State and federal laws…” the requirement for a permanent agricultural conservation easement as a condition of permit approval, without a nexus and without just compensation, has been successfully challenged in the courts (Nollan, Dolan, Sterling and others), so such a requirement is de facto inconsistent with the law. The law requires that the government must show that any condition imposed on the development permit must bear a direct nexus to the impact of the proposed development. Just because the Coastal Commission wrongfully continues to attempt to impose permanent conservation easements on all non-agricultural development, that doesn’t mean that our County must concede. Coastal Act Section 30241, which lists the means to maintain the maximum amount of prime agricultural land in agricultural production, contains no mention of a conservation easement requirement, nor can such a requirement be found anywhere in the Coastal Act. To retain the existing proposed language leaves the County vulnerable to lawsuits under the Takings Clause of the Fifth Amendment. We recommend deleting the word “shall” and substituting the word “may,” as was also requested by MALT in Bob Berner’s July 27, 2009 letter to your commission.
C-AG-7 Master Plan for Non-Agricultural Development of Agricultural Production Zone
(C-APZ) Lands. There is an inconsistency C-AG-7 under Development Standards. It states that “All of the following development standards apply” (emphasis ours). Item 2 states, “The development is necessary because agricultural use of the property would no longer be feasible…” The inclusion of this clause in this list is inconsistent and illogical because it is a finding that cannot be true if the other standards are found applicable. Also, it seems to be contradictory to the legislative intent of Coastal Act Section 30242 and 30250. We suggest that it should be removed from this list and placed below the other standards, preceded by the word “Or…”
Program C-AG-8.a Commercial Agricultural Production. Develop criteria and standards for
defining commercial agricultural production so that Agricultural Production and Stewardship
plans can differentiate between commercial agricultural production and agricultural uses
accessory to residential or other non-agricultural uses.
Please clarify what this means and how it is to be implemented.
C-AG-9 Residential Development Impacts and Agricultural Use. Ensure that lands designated
for agricultural use are not de facto converted to residential use, thereby losing the long-term productivity of such lands.
3. In no event shall a single-family residence subject to these provisions exceed 7,000 square feet in size. Where one or two intergenerational residence units are allowed in the C-APZ zone, the
aggregate residential development on the subject legal lot shall not exceed 7000 square feet.
This “aggregate cap” restriction was one of the most contentious policies in the Countywide Plan debate, and thankfully the Board of Supervisors removed this restriction. They recognized that it was illegal because it downzoned every property to a different zoning designation; it threw A-60 zoning out the window without due process. This unfair and illegal policy needs to be removed here as well.
Thank you for your consideration of our suggestions and requests. We hope you will keep in mind the fact that under Coastal Act Sections 30500 and 30512.2, local government has the authority over, and autonomy from, the Coastal Commission when it comes to determining the precise content of its LCP. It is incumbent on you to stand your ground and create policies that will help sustain Marin County’s agriculture into the future.
President, Marin County Farm Bureau
Marin County Board of Supervisors BOS@co.marin.ca.us
Stacy Carlsen, Marin Agriculture Commissioner SCarlsen@co.marin.ca.us
Jack Rice, California Farm Bureau Federation JRice@cfbf.com
Chris Scheuring, California Farm Bureau Federation CScheuring@cfbf.com
Paul Beard, Pacific Legal Foundation firstname.lastname@example.org
David Lewis, UCCE email@example.com
Bob Berner, MALT firstname.lastname@example.org
Ruby Pap and Rick Hyman,
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, CA 94105-2219