(A) Agricultural conservation easements in mitigation land shall be held in perpetuity by a qualified entity as defined in § 10.222.080.
(B) Mitigation land shall be comparable in nature to the agricultural land proposed for conversion. A mitigation land is deemed comparable in nature if it complies with the below requirement under § 10.222.070(C).
(C) The City Council shall not approve proposed mitigation for conversion of Critical Farmland unless it finds that the mitigation land complies with each of the following requirements:
(1) The mitigation land is located in the San Joaquin Valley, outside of any city's limits or sphere of influence, with preference given to mitigation land within ten miles of the City of Tulare limits.
(2) The legislative body having jurisdiction where the mitigation land is located has adopted a resolution approving the use of the land as mitigation.
(3) The mitigation land is subject to an agricultural designation in the General Plan and zoned for agricultural use. Any legal nonconforming use of the mitigation land has been or will be abandoned prior to execution of the agricultural conservation easement, or if maintained, will not interfere with agricultural use of the mitigation land.
(4) The mitigation land consists of one or more legal parcels of at least ten net acres in size, exclusive of the area occupied by any existing home and the area of any road or right-of-way easement, unless the land proposed for conversion is smaller than ten acres.
(5) An appraisal shows that the value of the agricultural conservation easement in the mitigation land is at least as high as that of an agricultural conservation easement in the land proposed for conversion. Appraisal shall be prepared by a licensed appraiser with experience in agricultural land appraisal.
(6) The soil quality of the mitigation land has the agricultural productive capacity at least equal to that of the critical farmland proposed for conversion.
(7) The available water supply for the mitigation land is at least equal to that of the land proposed for conversion in terms of quantity, quality, and security.
(8) The mitigation land is not already subject to an encumbrance or interest that would legally or practicably prevent converting the land, in whole or in part, to a nonagricultural use, such as a conservation easement, open space easement, flowage easement, avigation easement, long term agricultural lease, profit, or an interest in the subsurface estate that would preclude development of the surface estate. A contract entered pursuant to the Land Conservation Act, Cal. Gov't Code § 51200 et seq. (Williamson Act) shall not constitute an encumbrance for purposes of this section.
(9) There are no physical conditions or contamination on the mitigation land that would legally or practicably prevent converting the land, in whole or in part, to a nonagricultural use.
(10) The mitigation land has no existing home, unless the land proposed for conversion includes an existing home.
(11) The mitigation land is not owned by any public agency.
(D) The City Council shall not approve proposed mitigation unless it finds that the agricultural conservation easement complies with each of the following requirements:
(1) The type of agricultural related activity allowed on the mitigation land is specified in the easement and is at least as restrictive as the requirements of the City of Tulare's Open Space/Agriculture (A) Zoning District.
(2) The agricultural conservation easement prohibits all residential, commercial, or industrial development and any other land uses or activities that substantially impair or diminish the agricultural productive capacity of the mitigation land or that are otherwise inconsistent with the conservation purposes of this chapter.
(3) The agricultural conservation easement prohibits the landowner from entering into any additional easement, servitude, or other encumbrance that could prevent or impair the potential agricultural use of the mitigation land.
(4) The agricultural conservation easement limits the construction of structures to those designed to facilitate agricultural use of the property, except that this division shall not prohibit replacement of an existing home allowed by § 10.222.070(C)(10).
(5) The easement provides that the mitigation land will retain water rights at least equal to that of the land proposed for conversion in terms of quantity, quality, and security.
(6) The agricultural conservation easement will be either obtained from a willing seller or voluntarily conveyed by the applicant.
(7) Any existing easement, other than a right-of-way easement, deed of trust, or other servitude or encumbrance on the mitigation land shall be subordinated to the agricultural conservation easement.
(8) The agricultural conservation easement shall be approved by the qualified entity that will hold the easement and executed by all parties with an interest in the mitigation land.
(9) The agricultural conservation easement is in recordable form and contains an accurate legal description of the mitigation land.
(10) The agricultural conservation easement names the qualified entity as an intended beneficiary and authorizes it to enforce all terms of the easement.
(11) The agricultural conservation easement recites that it is intended to satisfy the mitigation obligation imposed by this chapter and that it is subject to the requirements set forth in this chapter.
(12) If the agricultural conservation easement is an instrument other than a conservation easement created under §§ 815 to 816 of the Cal. Civil Code or an open space easement created under §§ 51070 to 51097 of the Cal. Gov't Code, both the qualified entity and the City of Tulare have certified that the easement will run with the land and bind successor owners of the mitigation land in perpetuity.
(13) The agricultural conservation easement provides that if the qualified entity holding the easement ceases to exist, ownership of the easement shall pass to another qualified entity.
(14) The agricultural conservation easement has been approved as to form by the City of Tulare.
(E) Division (D) does not prevent inclusion in an agricultural conservation easement of requirements that are more protective of agricultural use than the requirements set forth in that division.
(F) Before approving any alternative mitigation option, the City Council shall determine that such option is consistent with the requirements in § 10.222.070(C) and § 10.222.070(D).
(G) After the City Council has approved an agricultural conservation easement, the easement shall not be amended without further approval by the City Council and compliance with any approval requirements imposed by the Attorney General of the State of California for the amendment.
(H) If a court issues a judgement declaring that the purposes of this chapter and of an agricultural conservation easement can no longer be fulfilled by enforcement of that easement, the qualified entity holding that easement may extinguish the easement by selling it to the fee owner of the mitigation land, if the following requirements are met:
(1) Either the action was contested and the judgement was not entered pursuant to stipulation, or the City of Tulare was a party to the action and stipulated to the judgement; and
(2) The qualified entity shall use the proceeds of sale to acquire an agricultural conservation easement in other mitigation land in compliance with this chapter.
(Ord. 20-03, passed 2-18-2020)