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Mitigating open space losses
by Brian Schmidt

Suppose a developer proposes a massive subdivision that would overwhelm the local sewer system and water treatment plant. Suppose, in addition, that the developer said, "paying for an upgrade of the treatment plant is too expensive for my development! Taxpayers should help out with our costs."

In a rational world, this developer would not get very far with his argument. Those costs are part of the project cost, and if the developer can't make a profit in that situation, he should consider doing something different with his property.

Different rules for open space?
Some developers apply this kind of argument when asked to mitigate for the loss of open space. Developers encountering objections to proposals that threaten farmland and hillsides respond: "We'll help you preserve open space or farmland, but only to the extent we think it's affordable."

Environmentalists should challenge this argument head on. When a developer replaces farmlands with suburbs, the project cost should include the cost to replace lost open space, just as it includes any necessary sewer system upgrades. Preserving one acre of farmland for each lost acre of farmland constitutes a reasonable mitigation.

If the cost of preserving other farms would make a developer's project too expensive, then the developer should do something else with the land, such as selling it to someone who would farm it.

What California law requires
California law supports this position - mostly. The California Environmental Quality Act (CEQA) forces local governments to impose feasible mitigations that reduce or eliminate significant impacts, such as preserving nearby farmland in order to mitigate the loss of farms to development. The local governmental agency, not the developer, determines whether preserving an equivalent amount of land is affordable.

Even if the agency finds that preserving a fully equivalent amount of land is too expensive, the project does not necessarily go forward. In that case, the agency must decide whether the public should suffer the environmental impacts from the project so that the development can proceed. The law prohibits agencies from approving the project without an express finding that the environmental costs are outweighed by the project's other benefits.

How developers skirt the law
CEQA, then, does not just let the developer pay to preserve only the amount of land he considers affordable. Instead, the local government reviewing the project decides whether the public should absorb the project's environmental impacts in light of its supposed benefits. Problems often develop when developers use political muscle to pressure agencies into allowing projects to proceed without preserving enough land, based on findings of "overriding considerations."

Sometimes the local government may compromise with a developer. If the developer pays for part of the cost of preserving land made necessary by the developer's project, the local government may agree to pay for the rest. As environmentalists, we should not encourage this arrangement, because developers - not the public - should be responsible for the environmental costs of projects. We should accept it only if this becomes necessary to preserve open space.

Advocating to protect open space
The simple "polluter pays" principle works perfectly here. The developer that eliminates farms and open space should pay for preservation. Environmentalists must work to make that happen. The Committee for Green Foothills is keeping this principle in mind for present and future land use battles.