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9790 Dally Appellate Report Monday, July 29, 9,1.
<br />,i
<br />lost at the Project site because they would "not
<br />replace the on -site resources." The County
<br />Presumed that ACES were useful only to address
<br />"the indirect and cumulative effects of farmland
<br />conversion," mud were not needed here because
<br />the Project would have no such effects. Thus,
<br />the finding of infeasibility in the EIR rested on
<br />the legal conclusion that while ACES can be used
<br />to mitigate a project's indirect acid cumulative
<br />effects on agricultural resources, they do not
<br />mitigate its direct effect on those resources.
<br />As respondents put it in the trial court "Given
<br />the lack of indirect or cumulative agricultural
<br />impacts, the Draft EIR properly conclude[d] that
<br />agricultural conservation easements are legally
<br />infeasible." The legal feasibility of a mitigation
<br />measure is not a question of fact reviewed for
<br />substantial evidence but rather is an issue of law
<br />that we review de novo.
<br />We disagree with respondents, We conclude
<br />that ACES may appropriately mitigate for the
<br />direct loss of farmland when a project converts
<br />agricultural land to a nonagricultural use, even
<br />though an ACE does not replace the onsite
<br />resources. Our conclusion is reinforced by the
<br />CEQA Guidelines, case law on offsite udtigadon
<br />for loss of biological resources, case law onACEs,
<br />Prevailing practice, and the public policy of this
<br />state.
<br />ACES preserve land for agricultural use
<br />in perpetuity. (See Civ. Code, §§ 815.1, 815.2
<br />[describing agricultural and other conservation
<br />easements]; Pub. Resources Code, § 10211
<br />[defining "agrieul total conservation ea s ements "]. )
<br />As the California Farm. Bureau Federation
<br />(CFBF) observes in an amicus curiae brief .
<br />advocating for the conclusion we reach: "The
<br />Permanent protection of existing resources .off.
<br />site is effective mitigation for (a project's direct,
<br />cumulative, or growth- inducing) impacts,because
<br />it prevents the consumption of a resource to the
<br />Point that it no longer exists.... If agricultural
<br />land is permanently protected off -site at, for
<br />example, a 1:1 replacement ratio, then atleasthalf
<br />of the agricultural land in a region would remain
<br />after the region has developed its available open
<br />space." By thus preserving substitute resources,
<br />ACE's compensate for the loss. of. farmland
<br />within the Guidelines' definition of mitigation..
<br />(Guidelines, § 15370, subd. (e) [mitigation
<br />includes "[clompensating for the impact by
<br />replacing or providing substitute resources or
<br />There is no good reason to distinguish the use
<br />of offsite ACES to mitigate the loss of agricultural
<br />lands from the offsite preservation. of .habitats
<br />for endangered species, an accepted means
<br />of mitigating impacts on biological resources.
<br />(Preserve Wild Santee v. City of Santee (2012)
<br />210 Cal.App.4th 260, 278 (Santee) [loss of habitat
<br />mitigated by conservation of other habitat at a 1:1
<br />ratio]; California Native Plant Society v Ciiy of
<br />Rancho Cordova (2009) 172 Cal.App,4th 603; 610-
<br />611, 614-626 [mitigation by offsite preservation of
<br />of new habitat for each acre of
<br />by the project]; EudangeredHat
<br />v. County of Orange (2005) 131
<br />794 [mitigation by "off- siteinese
<br />Of Sacramento (2006) 142
<br />[purchase of a balf -acre k
<br />very acre of development];
<br />'ractim Under the Califon
<br />2d
<br />oV��4Ue ,.aonaz prowae a a
<br />under Guidelines, § 15370, sr
<br />the DOC's continents on th
<br />that the rationale for ACES in
<br />that of established mitigation
<br />habitat.
<br />Our conclusion is also
<br />relatively sparse case law inv
<br />case most closely on point is
<br />296 (Lodi), which involved a projec
<br />to the one here, converted. 40 ai
<br />farmland to other uses. The Ell
<br />that the impact on agricultural ri
<br />unavoidably significant, and the d
<br />nonetheless required to mitigate t
<br />obtaining an ACE over 40 other m
<br />farmland. (Id. at pp. 322 -323,) Alth
<br />observed, that "'such off - site; -mitt
<br />not avoid the significant impact ri
<br />the permanent loss of prime agrk
<br />at the project site "' (id, at p. 32f
<br />noted that acquisition of the offsite
<br />minimize and substantially, lessen"
<br />(id at p.'324). The Lodi court's real
<br />respondents' theory that mitigation
<br />of an offsite ACE is not legally feasib
<br />In Beaumont, supra, 190 Cal.App
<br />EIR for a housing development on la
<br />for agricultural purposes noted flu
<br />"'no feasible long -term mitigation [f<
<br />on agricultural resin vrrsi ntho ti,—
<br />the
<br />' die .
<br />used,
<br />r
<br />blocks of farmland into conservation' em.oe —m' its, '
<br />Williamson Act preserve status, :,ot(ter
<br />ou,y�,w y p, uLecuon or preservauonplans;`, ?,.(Id..,,.
<br />at p. 349 [italics omidedj.) But the EIR rejected;:,;
<br />those. mitigation measures as ecgnomiFat]y
<br />infeasible because the pace of urban deyeloptrlenJ':i;
<br />made long term farming no longer Ap'.p' ,ar
<br />viable, a conclusion that was upheld,as gup[p'lp
<br />by substantial evidence. (Id. at pp:.350.35 }, Q ,
<br />Defend the Bay v om City of Irvine (2000;11,.. sl;o
<br />AppAth 1261, 1269 -1271 [offsite preservation of
<br />agricultural land was infeasible because of the
<br />;alive economics of long -term agriculture. " „in,,
<br />u geCounry].) There would have beenno,mied
<br />the EIR or the court in Beaumont to aQd;gs$ z1
<br />economic feasibility ofACEsif,asfesponftfiN ”,
<br />us, ACES are not legally feasible N, of does;
<br />:umont support respondents' claunat
<br />old review the infeasibility deternam, on:m >„
<br />case for substantial evidence. Because thez q
<br />mty.decided that ACES were not a legallF,.�,
<br />•ible means'to mitigate the loss of farniland.�„
<br />he Project site, it never investigated whetlTer: ,
<br />s were economicallyfeasible; and there tsno
<br />lence to review._
<br />Building Industry Assn. of Central Califoraig�;
<br />:ounty of Stanislaus (2010) 190' Ca].e,Jpp,tlti},y,
<br />(Stanislaus), involved a challenge jo a�faun
<br />s
<br />eral plan that required developer .of_,projeI -a ,;; 1;
<br />✓ertfng agricultural land to residen ' ' ........ I W
<br />at
<br />V.
<br />75A -69
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