1 year ago

Marin County and the California Coastal Commission overreaching with Local Coastal Program amendments

By Jeremy Talcott Attorney
Agriculture in Marin County
Agriculture in Marin County

The voluntary preservation of agricultural lands is a noble goal. Forcing landowners into government-run conservation efforts against their will, however, is something else entirely. And a desire to conserve pastoral farmland doesn’t excuse government from following the laws and constitutions of California and the United States. For several years, PLF has been closely watching Marin County’s attempts to adopt amendments to their Local Coastal Program. PLF attorneys have submitted several comment letters highlighting provisions of the proposed amendments and the Implementing Program that both substantially interfere with the property rights of Marin County landowners and raise significant constitutional concerns. Last Friday, PLF submitted this letter to the Marin County Planning Commission, and I appeared before the Commission Monday to remind them that property rights can’t be taken at will by government bureaucrats.

Current zoning in Marin County allows for the development of additional residential units beyond the primary dwelling, up to one house per 60 acres. The new Implementing Program no longer permits any residential use and restricts development to three “agricultural dwellings” per farm tract. It further limits agricultural dwellings—just 27 will be allowed in the entire county. A farm tract is defined as “all contiguous legal lots under common ownership.” Together, these provisions substantially downzone larger farms and ranches within the agricultural zone. As the California Court of Appeal has recognized, large reductions in development rights through downzoning can constitute a compensable taking. The merger of legally distinct lots into “farm tracts” also injects Marin County directly into the “parcel as a whole” debate that is currently docketed before the United States Supreme Court in PLF’s case Murr v. Wisconsin. A victory in Murr could render the farm tract provisions of Marin County’s Implementing Program unconstitutional before they even take effect.

I also pointed out that the Implementation Program contains provisions that impose severe conditions in exchange for any development permits that are granted. The program requires landowners to burden their property with a restrictive covenant preventing further division of the legal lot once a dwelling is built. They must also give an affirmative easement to the County that requires the homeowner to be “actively and directly engaged” in commercial agriculture. These types of legally binding promises not only restrict the current landowner, they also bind every future owner of the property. The Supreme Court has put constitutional limits on the conditions that governments may place on development permits, starting with PLF’s 1987 victory Nollan v. California Coastal Commission. Requiring a landowner to forever remain in commercial agriculture as a condition for building a single dwelling falls afoul of those limits.

Worst of all, these restrictions aren’t only potentially unconstitutional, they’re unnecessary. Many Marin County landowners have entered into voluntary agreements with private organizations—such as the Marin Agricultural Land Trust—that protect agricultural use of the property without destroying valuable development rights. The County has supported these efforts in the past, and I reminded the Commission that private agricultural easements can accomplish the same valuable goals—without unconstitutionally taking landowners’ property rights.

In light of these issues, I urged the Commission to recommend that the Marin County Board of Supervisors should not adopt the Amendments. The Amendments are currently before the California Coastal Commission, who will vote on certification in November. PLF will be watching closely, and we will keep fighting for the constitutional rights of the farmers and ranchers in Marin County.

For more information and our previous comment letters, read some of our previous coverage of this issue.

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