Guest Juice: Ag Elbows Renewables

6 Apr 2012

By Jon Welner

California’s rural landscapes are some of the most productive farmlands in the world. However, some of the qualities that make these lands suitable for farming--sunshine and wide open spaces--also make them attractive for another kind of “farming”: solar and wind farms. In recent years, the conflict between farming and renewable energy production has grown more pronounced in the state.

Central to this conflict is the California Land Conservation Act of 1965, generally known as the Williamson Act (Gov’t Code §§ 51200-51297.4). 

The purpose of the Williamson Act is “the discouragement of premature and unnecessary conversion of agricultural land to urban uses.” It achieves this goal by allowing cities and counties to establish agricultural preserves. Within these preserves, landowners can voluntarily enter into contracts with the city or county restricting their land to agricultural use. The contracts generally have an initial term of ten years, and are automatically “renewed” each year for a new ten-year term.

In exchange for signing these contracts, landowners receive significantly reduced property valuations for property tax. Instead of being assessed at full value, the land is assessed based on its restricted use. Landowners who want their valuations further reduced can sign up for Farmland Security Zone contracts, which generally have a term of 20 years and impose greater restrictions in exchange for an additional 35 percent reduction in valuation.

In the last year, the tension between renewable power developers and Williamson Act advocates has been intensifying. Driven by recent legislation requiring California utilities to achieve 33 percent renewable power by 2020, solar and wind companies are aggressively looking for sites where they can build utility-scale power generation facilities, and have increasingly turned their sights onto agricultural lands, including those covered by Williamson Act contracts.

Williamson Act contracts limit use of the land to agricultural and “compatible” uses. Each city or county adopts its own rules on what uses are compatible, subject to minimum requirements. Some counties explicitly identify renewable power projects as a compatible use. Others impose significant restrictions or do not authorize renewable power projects at all. To build solar or wind facilities on a site covered by a Williamson Act contract, a landowner has the following options:

-Design the facility to be “compatible” with agricultural use;

-Submit a notice of nonrenewal and wait for the term of the contract to expire;

-Petition for cancellation of the contract;

-Seek to convert the contract to a solar use easement, pursuant to recent legislation; or

-If circumstances permit, have the land acquired by an energy utility through condemnation (or acquisition in lieu of eminent domain).

Each of these options poses significant challenges. Many cities and counties are resistant to the idea that renewable power facilities are “compatible” with agricultural use. Non-renewal is always an option, but the land will not be available for nine years or more. Immediate cancellation of a contract is often quite difficult to obtain. Conversion to a solar use easement is only available for “marginally productive or physically impaired land.” And condemnation is only an option in rare circumstances.

Even if a landowner convinces the city or county to cancel a contract or find that a proposed use is compatible, the decision can be challenged in the courts. A recent case involves the California Farm Bureau, which filed a lawsuit late last year in Fresno Superior Court challenging the County’s decision to cancel certain Williamson Act contracts to allow for solar development.

Resolving the growing tension between renewable development and the Williamson Act will not be easy. But there are a number of important steps that can be taken to reduce friction and enable renewable energy companies to achieve their goals more quickly:

-Develop strong relationships with the responsible cities and counties, the Department of Conservation, and the advocates of farmland preservation, including the state and county farm bureaus.

-Work with cities and counties to ensure that solar and wind development are included on their lists of compatible uses, subject to reasonable conditions;

-Design projects to comply with the criteria for compatible uses set forth in the statute and contracts, to the extent possible;

-Ensure that petitions for cancellation specifically address the criteria set forth in the statute and contracts; and

-Explore additional legislative solutions to help achieve the proper balance between two critical goals of the State of California: preserving farmland and expanding production of renewable energy.

--Jon Welner is a practitioner in environmental and natural resource law. (415) 984-9656

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