Builders sue over Stanislaus ag element

The Building Industry Association of Central California is suing Stanislaus County, seeking to overturn the agricultural element update to the general plan recently approved by the Board of Supervisors.

The ag element update covers a variety of farming issues, from farmworker housing to buffer zones between urban and agricultural land. It was developed over the past two years by county staff and the county agricultural advisory committee.

The BIA objects to a provision calling for residential builders to preserve an acre of equivalent farmland for every acre of farmland developed. The lawsuit, filed Wednesday, contends that the process the county followed in drafting the ag element update was flawed and violated the state and federal constitutions, as well as several state laws.

Asking residential development alone to pay for the preservation of farmland is arbitrary, the lawsuit says. The county failed to provide evidence of how new housing causes a need to make up for farmland loss, as required by state law for mitigation fees, the lawsuit says. The provision also conflicts with affordable housing goals in county and state law, according to the lawsuit.

The lawsuit seeks to have the ag element update deemed "unreasonable, unauthorized and invalid."

"Obviously we will be reviewing it this week and preparing a response," said Stanislaus County Counsel Michael Krausnick. "We want to take the time to analyze it."

Krausnick noted that the lawsuit is similar to one filed May 25 by the Building Industry Association of the Delta against the city of Stockton over a similar farmland mitigation provision. The lawsuits were filed by the same San Francisco law firm -- Sheppard, Mullin, Richter & Hampton LLP -- and the language is very similar, he said.

Ren Nosky, Stockton's city attorney, said that lawsuit is in its early stages. The city's attempt to get it dismissed failed.

Several other jurisdictions have farmland mitigation laws, Nosky said, including San Joaquin County and the city of Davis. "Stanislaus County is not a lone wolf in this by any means," Nosky said.

BIA execs: We were excluded

The Stanislaus ag element update was approved by the Board of Supervisors on Dec. 18 on a 3 to 2 vote, after the provision for developers to preserve farmland was modified so it would not include commercial or industrial development. Supervisors Dick Monteith and Bill O'Brien voted against the ag element update.

Stephen Madison, BIA executive vice president, commented Wednesday that the group did not see the details of the provision until late September. The group was excluded from meetings at which the mitigation language was created and had no input until very late in the process, he said.

"It's not just our opinion that we were excluded," said BIA President Bill Zoslocki. "It should have included The (Stanislaus Economic and Workforce) Alliance, the chambers of commerce of Modesto and Turlock and the Farm Bureau. It's important that the process include everybody."

Impact on enterprise zone cited

The county received letters in opposition to the ag element farmland mitigation provision from the California Department of Housing and Community Development, the chambers of commerce and the alliance in the days before the Dec. 18 meeting.

The Department of Housing and Community Development questioned how the ag element would affect the state mandate for affordable housing and the county's enterprise zone, which gives tax breaks to employers for hiring and training workers.

Krausnick said the Building Industry Association was included in the ag element meetings, and some of their concerns about other provisions were addressed during the process.

"We were aware the building industry had concerns, and they did participate in the process," Krausnick said.

The commercial and industrial exemption to the mitigation clause was added Dec. 18 at the request of Supervisor Jeff Grover. He said he was concerned about putting up obstacles to job creation in the county.

The lawsuit contends that making such a significant change in the proposed ag element required that it go back to the county Planning Commission for review and public hearings. Instead, it was voted on that day.

The BIA officials said Wednesday that the remaining provision for residential farmland mitigation puts up an obstacle to building affordable housing.

Rather than singling out the housing industry to preserve farmland, the county could levy a sales tax for that purpose, as Sonoma County does, Zoslocki said, or do it through zoning.

He said the farming and building industries should cooperate to find a solution rather than squaring off against each other.

"There are good people in farming, and good people in the development community. Farming is an important industry, and so is housing," he said.

In addition to turning aside the ag element provisions, the BIA asks that the county conduct public review and hearings before seeking to re-establish mitigation provisions.

The county has 30 days to respond to the lawsuit. A case management conference is scheduled for 1:30 p.m. May 27 before Judge David VanderWall.

Bee staff writer Tim Moran can be reached at tmoran@modbee.com or 578-2349.