Are Solar Thermal Facilities Compatible with the Williamson Act?

Are Solar Thermal Facilities Compatible with the Williamson Act?

by: David H. Blackwell and Michael Patrick Durkee

Solar Thermal Magazine | February 2011

The Williamson Act, also known as the Land Conservation Act of 1965, was enacted to protect agricultural land from premature urban development through contracts between the local government and landowner, and it applies to half of all agricultural land and nearly one-third of all privately held land in California. Solar thermal facilities, often sited in California’s rural areas, are confronting these Williamson Act contracts.

For years, regulators and energy providers have ignored provisions of the Act that expressly recognizes that electric facilities as “compatible uses.” (Gov. Code § 51238(a)(1).) As a result, energy providers have historically arranged for the cancellation of Williamson Act contracts, believing that this complicated and costly process was a prerequisite to building energy facilities throughout California.

This approach of ignoring the express provisions in the Williamson Act is misguided. Electric facility projects, whether traditional or renewable in nature, should be recognized as compatible uses, as the Legislature intended. Thus, when siting a solar thermal project on Williamson Act lands, it is error to automatically assume that contract cancellation is required or that a case-by-case review regarding an energy project’s compatibility pursuant to Section 51238.1 is required.

Brief Background of the Williamson Act

The Williamson Act was adopted to address the problem of agricultural land being assessed (as required by the California Constitution) at its highest and best use value, which often forced agricultural landowners to discontinue farming and sell or convert their land to urban development due to the high property taxes and assessments. The Act empowers local governments to establish “agricultural preserves” consisting of lands devoted to agricultural uses and other uses compatible therewith, and to adopt rules and restrictions governing the administration of agricultural preserves and to ensure that the land within the preserve is maintained for agricultural, open space or other compatible uses. (§§ 51230, 51231.) Once an agricultural preserve is established, the local agency may offer to property owners within the preserve the opportunity to enter into annually-renewable Williamson Act contracts that restrict the land to agricultural uses and compatible uses for at least ten years. (§§ 51240, 51242, 51244.)

The Act’s Legislative History of Compatible Uses

As initially chaptered in 1965, the Williamson Act allowed the city or county to determine what was a “compatible use,” but also provided that electric facilities and similar uses were statutory compatible uses. (§ 51201(e).) In 1969, the “compatible use” definition of Section 51201(e) was modified and renumbered into new Section 51238:

Notwithstanding any determination of compatible uses by the county or city pursuant to this article, unless the board or council after notice and hearing makes a finding to the contrary, the erection, construction, alteration, or maintenance of gas, electric, water, or communication utility facilities are hereby determined to be compatible uses within any agricultural preserve. No land occupied by gas, electric, water, or communication utility facilities shall be excluded from an agricultural preserve by reason of said use.

In 1991 and 1992, attempts to limit Section 51238 to facilities related to the transmission of gas, electric, water and communication services failed, and there is no qualifier that the uses in Section 51238 be limited to transmission facilities. In 1994, the Legislature expressly required that if a city or county allows compatible uses in agricultural preserve beyond those expressly identified by the Act, those uses normally must be consistent with the three “principles of compatibility” enumerated in Section 51238.1. Thus, Section 51201(e) [replace footnote with hyperlink of text] now expressly recognizes that a compatible use may be either established: (1) by a local agency, so long as it meets the Act’s compatible use parameters; or (2) by the Act itself, such as those uses identified in Section 51238.

Application of the Act’s Current Compatible Use Provisions to Thermal Facilities

As reflected in the legislative history, statutory compatible uses such as electric facilities are separate from, and are not subject to, the separate “principles of compatibility” set forth in Section 51238.1. Nevertheless, many state and local agencies have historically ignored Section 51238 and have focused, if at all, on the separate compatibility requirements of Section 51238.1. For example, in a May 2010 paper entitled “Solar Power and the Williamson Act,” [insert hyperlink] the State Department of Conservation implied that solar facilities on noncontracted land may be subject to Section 51238.1′s compatibility requirements. Many local agencies have determined that the proposed electric use is incompatible and have required that the Williamson Act contract be cancelled as to that area of the contracted property covered by the proposed development. Knowing this, many energy developers have initiated cancellation proceedings without further inquiry even though cancellation is costly process to be used only for “extraordinary situations.”

Preservation of agricultural land still remains an important statewide goal, but the realities of the current environmental and economic climate require that the production of renewable energy facilities not play a subservient role. Some counties are seeking ways to remove themselves from the Act as the Governor’s proposed threatens elimination of the Act. These local agencies may see a brighter future through increased renewable energy development, and should take the steps necessary to make it a reality.

End Notes

[1] Michael Patrick Durkee is Co-Chair of Allen Matkins’ California Land Use Practice.  He is a resident in the firm’s Walnut Creek office, where he focuses his practice on land use, elections, and local government law in both administrative and judicial proceedings.  He can be reached atmdurkee@allenmatkins.com.

David H. Blackwell is a partner in Allen Matkins’ Walnut Creek office where he practices real estate law with an emphasis on land use entitlements and litigation.  He can be reached at dblackwell@allenmatkins.com.

[1] § 51201(e):  “Compatible use” is any use determined by the county or city administering the preserve pursuant to Section 51231, 51238 or 51238.1 or by this act to be compatible with the agricultural, recreational, or open-space use of land within the preserve and subject to contract.  “Compatible use” includes agricultural use, recreational use, or open-space use unless the board or council finds after notice and hearing that the use is not compatible with the agricultural, recreational or open-space use to which the land is restricted by contract pursuant to this chapter.  (Underscoring added.)

 

 

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