OFFICE OF THE
Steve Sharpe
Dear Mr. Sharpe: I have been asked to provide the District with a brief analysis of the scope of activities authorized by Measures A and C. As you know, the Sonoma County agricultural preservation and open space program was initiated with the passage of Measures A and C in 1990. Pursuant to those measures, the District has acquired interests in land throughout the County, through conservation easements and acquisitions of fee title. Recently, questions have been raised as to the range of possible acquisitions -- type and purpose -- that might be allowed under the two Measures. Of particular interest is the type of acquisitions that may be permissible for recreational purposes. In light of these questions, I have prepared the following overview of Measures A and C. Summary The District may use sales tax revenue to acquire interests in real property for the purpose of preserving agricultural land use and open space so long as the purchase is consistent with the Expenditure Plan adopted by the Authority and approved by the voters in 1990, and is in conformance with the 1989 Sonoma County General Plan with respect to the unincorporated area of the County and the applicable city or town [illegible] areas of the County that are incorporated. In addition to agricultural lands, the categories of open space identified in the Expenditure Plan for preservation are community separators, scenic landacape units, scenic corridors, critical habitat areas, riparian corridors and other areas of biotic resources. Other specified open space projects may be acquired through a competitive matching grant program. The Expenditure Plan anticipates that the preservation will be accomplished primarily through the purchase of development rights, i.e. conservation easements, and secondarily through fee purchases where there is an available public recreation use that is compatible with the open space value sought to be preserved. Parks and trails may be acquired in fee if such acquisitions are consistent with the 1989 General Plan and serve the open space designations set forth in the Expenditure Plan. Fee purchases are also authorized where the District anticipates a resale of the fee subject to the reservation of a conservation easement. Sales tax revenues may also be used for stewardship costs associated with acquired property interests, including maintenance of lands held for recreational purposes. It is unclear whether sales tax revenues may be used for development or operation of park facilities, although certain practical and legal concerns may counsel against it. Analysis The Sonoma County Agricultural Preservation and Open Space District was formed pursuant to California Public Resources Code sections 5500 et seq. The Public Resources Code gives the District broad authority to acquire, develop and maintain lands for open space and recreation purposes. The Public Resources Code places few limitations on the types of interests that might be acquired and types of activities that might be undertaken by the District. Under this broad umbrella of state law, local Measures A and C formed and funded the Sonoma County Agricultural Preservation and Open Space District. The two measures are companions and operate conjunctively. Measure A establishes the District and provides a general directive for its work. Anticipating the limitations of Measure C, the directive set forth in Measure A is more narrow than the broad powers given the District by state law. Measure C, in turn, establishes a mechanism for funding for the agricultural preservation and open space program and provides an outline of priorities. The priorities set forth in Measure C further narrow the focus of the District's work. [1]
Measure A authorizes the creation and establishment of the Sonoma County Agricultural Preservation and Open Space District. The purpose of the District is stated in Measure A as follows:
To further these purposes, the measure authorizes the District to purchase interests in real property from willing sellers and to accept donations of interest in real property. The scope of the District's authority under Measure A is defined by the measure's references to Government Code section 65562 and to the AgriculturaI and Open Space Elements of the 1989 Sonoma County General Plan. Those provisions generally identify the types of property acquisitions and activities that the District may pursue.
Section 65562 provides an initial outline of the types of open space interests that may be considered for acquisition by the District. Section 65562 states that it is the intent of the Legislature "to assure that cities and counties recognize that open-space land is a limited and valuable resource which must be conserved wherever possible." [2] Government Code section 65560 defines "open-space land" to include:
See Government Code section 65560(b) (emphasis added). It is important to note that section 65560 defines open space by reference to lands "which [are] designated on a local regional or state open space plan." The state law thus turns us naturally to the second citation in Measure A, the Agricultural and Open Space Elements of the 1989 Sonoma County General Plan.
Measure A cites to the Agricultural and Open Space Elements of the 1989 Sonona County General Plan. Because the citation is specifically to the 1989 General Plan, it will not encompass amendments to that General Plan adopted after passage of measure A, unless such amendments are themselves found to be consistent with the 1989 General Plan. [3] The following is based on the 1989 General Plan in its original version.
The Agricultural Element of the General Plan is designed "to establish policies to insure the stability and productivity of the County's agricultural lands and industries." See AR Policy 1.1 It defines agriculture to include production and processing of food, fiber and plant materials. Id. It provides a broad authorization for the District's acquisition of protective easements over a variety of agricultural lands. The Agricultural Element emphasizes stabilization of agricultural uses at the urban fringe (AR Policy 2.2.), limitation of intrusion of new residential uses into agricultural areas (AR Policy 2.3), and assistance in stabilizing the farmer's economic situation (AR Policy 2.8) The Agricultural Element specifically recommends programs for the voluntary purchase or voluntary transfer of development rights for the furtherance of these goals. (See, e.g., AR-2d, AR-3e, AR 8-d.)
The Open Space Element of the General Plan similarly provides a broad basis for the District's acquisition of interests in open space lands. The stated purpose of the Open Space Element is "to preserve the natural and scenic resources which contribute to the general welfare and quality of life for the residents of the County and to the maintenance of its tourism industry." It identifies four classifications of open space to be preserved:
These classifications dovetail with the first and third open space designations set forth in the Government Code, outlined above, that is, open space for the preservation of natural resources and open space for outdoor recreation. The Open Space Element does not reference the other two state open space designations -- open space used for the managed production of resources (although much of this land would be encompassed under the Agricultural Element of the General Plan) and open space for public health and safety. The Open Space Implementation Program, contained within the Open Space Element, provides for the establishment of the District in its Program 4, as follows:
For purposes of Program 4, "designated open space areas" would appear to include the four categores of open space identified in the Open Space Element itself -- scenic resources, biotic resources, outdoor recreation, and archeological and historical resources --, as those four categories are further defined and described in the Open Space Element's text and maps. Certain of these categories of open space are defined geographically within the text and maps of the Open Space Element. In particular, the text describes community separators geographically, identifying eight specified community separators. See OS Policy 2.1. Scenic corridors are defined geographically by reference to maps, Figures OS-5a through OS-5i. See Objective OS 3.1. To be consistent with the General Plan, any acquisitions within these categories should fall within those specifically described geographical areas. Other categories of open space are defined generically in the Open Space Element, with some, but not all relevant geographic areas identified. These include scenic landscape units (listing only "major' scenic landscape units), critical habitat areas, riparian corridors, bikepaths, and archeological and historical resources. See OS-2.2, OS-3.1, OS-3.2, OS-4.2. In these subject areas, District acquisitions are not limited geographically by the General Plan. In the case of equestrian and hiking trails, the nature of the designations is less clear. Policy OS-7d states that "the trails on Figure OS-4a on page 187 make up the County's designated plan for trails" (emphasis added). The text of Policy OS-7d identifies a series of fourteen specific trails, with approximate locations, that correspond to the map on Figure OS-4a. Because the General Plan expressly identifies this series of fourteen trails as the County's designated trail system, the most cautious approach would be to limit District acquisitions to the specific trails identified therein. Policy OS-7d, however, also lists three additional categories for the classification of "potential trails": (1) trails to provide access to designated waterways, (2) hiking and equestrain trails along the Sonoma County/Napa County boundary, and those linking state and county parks adjacent to urban areas, and (3) multi-use trails that make use of other publicly owned land. It may be possible to considcr new trail acquisition within these three additional categoriea, provided that (i) the Board of Supervisors, by General Plan Amendment, designates such trails for inclusion in the County's designated trail system, and (ii) the District Board of Directors determines that such acquisitions are consistent with the 1989 General Plan. Although the Open Space Element provides justification for District acquisitions within all categories of open space described therein, it should be noted that specific policies within the Open Space Element particularly emphasize acquisition of easements within community separators, scenic landscape units and critical habitat areas. See Policies OS-1i, OS-2h, and OS-4g.
Measure A's companion measure, Measure C, provides for funding for agricultural and open space preservation and further defines appropriate acquisitions. Measure C authorizes the Open Space Authority to impose a 1/4 cent sales tax to "produce revenue for the purposes set forth in the Expenditure Plan Adopted by [the Board of Directors of the Authority] on August 9, 1990." The Expenditure Plan was set forth in full in Measure C. [4] The Expenditure Plan states that its purpose is to "implement the 1989 Sonoma County General Plan by preserving agricultural land use and open space." The Expenditure Plan provides that:
The Expenditure Plan then identifies five open space designations:
These five categories generally correspond to the first two categories of open space set forth in the Open Space Element of the General Plan -- generally encompassing scenic resources (including community separators) and biotic resources. The five categories do not encompass either public recreation or archeological or historical resources, except as such may be included in the final category of other open space projects. The Expenditure Plan's express primary focus is thus on the purchase of development rights to preserve agriculture and open space. In the area of open space, the clear focus is on the protection of community separators and scenic and biotic resources. The Expenditure Plan's secondary focus is the purchase of lands for public recreation. ("[Purchases] may include the purchase of the fee interest for public recreation where the public use would not be inconsistent with the Open Space designation provided below"). The Expenditure Plan is silent as to what may be included within these purchases for public recreation. Given that the Expenditure Plan is designed to implement the 1989 Sonoma County General Plan, we may look to the General Plan for guidance. It should be noted here that the Expenditure Plan, like Measure A, expressly references the 1989 Sonoma County General Plan. As such, it excludes amendments to the General Plan that were not in place at the time that the voters approved the Expenditure Plan on November 6, 1990, unless such amendments are themselves consistent with the 1989 General Plan. [5] As outlined above, the Open Space Element of the 1989 General Plan defines outdoor recreation to include parks, equestrian and hiking trails and bicycle routes. All of these items, therefore, could be considered permissible acquisitions under the secondary focus of the Expenditure Plan. Each acqusition within each of these categories would have to be evaluated on its own merits to determine that it (a) is consistent with the specifics of the 1989 General Plan, and (b) is not inconsistent with the open space designations set forth in the Expenditure Plan. Historically, the Expenditure Plan has been interpreted by the Authority and the District, the entities that drafted and now administer the Expenditure Plan, to require that each acquisition have, as its primary purpose, the protection of agriculture or the protection of one of the five designated open space purposes (community separator, scenic landscape units and scenic corridors, critical habitat and riparian corridors, other areas of biotic significance or other open space projects). Lands within those categories may be purchased in fee for recreational purposes, but only if the recreational purpose is compatible with the underlying agricultural or open space use, and then only as a secondary and subordinate use. For example, lands with recreational opportunities have been acquired within community separators and several irrevocable offers to dedicate trail easements have been donated to the County within resource lands that are currently subject to conservation easements. Such fee interests have been accepted only after assurance that the recreational use would not interfere with the preservation of the open space value which was the primary purpose of the District's acquisition. The Expenditure Plan does not authorize independent acquisitions in fee for recreational purposes, unless such acquisition serves one of the five designated open space proposes. [6] On a final note, the Expenditure Plan is silent as to the on-going costs of stewardship of acquired interests. The Authority has set aside funding for perpetual stewardship costs to carry forward beyond the slated expiration of the 1/4 cent sales tax in 2011. Such set-aside is consistent with state law, the General Plan and the clear purpose and intent of the Expenditure Plan. It is unclear, however, whether sales tax revenue may also be used for development or operation of park facilities. Although state law and the General Plan might allow for such expenditures, it appears unlikely that authorization for such expenditures could be read into the Expenditure Plan, given the twenty year life of the sales tax and the relaltive high costs involved in park development and operation, as compared to general stewardship expenses. Conclusion Measures A and C provide a general framework within which the District may work, authorizing a variety of agricultural and open space acquisitions. There is nothing in Measures A and C, however, that require the District, in its implementation of the Expenditure Plan, to undertake acquisitions in all possible categories of agriculture or open space. Moreover, both Measure A and Measure C are broadly worded and, in several areas, as outlined above, are open lo interpretation. The District's Board of Directors will, in the first instance, have the responsibility for those interpretations, as it continues with implementation of the agricultural preservation and open space program. We hope that this overview of Measures A and C will assist you as you move forward. As particular questions arise with respect to particular types of acquisitions that may fall within ths District's authority, we would be pleased to provide further analysis.
cc: Sonoma County Agricultural
Preservation (1) The limitations of Measure A and C would not prevent the District from exercising the broader power given it by state law if the District were to use an alternate source of revenue, such as a state or federal grant or an appropriation from the County's General Fund. (2) Government Code section 65562 is part of Artitcle 10.5 of the Californis Zoning and Planning Law. Article 10.5 requires the preparation of an open space plan for inclusion in any city or county's general plan. (3) The California Supreme Court has held that where one law specifically incorporates another law, the incorporating law excludes a later enacted amendment to the incorporated law unless there is a clearly expressed intention to the contrary. Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d 53, 58-59; see also 1A Sutherland, Statutory Construction pps. 719 et seq. Here the reference to the "1989 Sonoma County General Plan" as opposed to a more general reference such as the "Sonoma County General Plan" is the specific reference on which the rule operates. (4) Since the Expenditure Plan was approved the voters it may not be amended or modified without renewed voter approval. (5) Since District acquisitions may take place within the incorporated areas of the County, the Expenditure Plan should be read to reference the appplicable city or town general plans in those areas. (6) Although the final determination of the meaning of the Expenditure Plan ultimately rests with the courts, the courts, under the rule of contemporaneous construction, will give great weight to the interpretation given the Expenditure Plan by the District's and the Authority's Boards of Directors. See Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93; Mooney v. Pickett (1971) 4 Cal.3d 669, 681. See Sutherland Stat Const §§ 49.03 et seq. (4th Ed). |
