August 14, 2015

PLF comments again on Marin County coastal plan

By Chris Kieser Attorney

For several years now, PLF attorneys have been following Marin County’s efforts to amend its Local Coastal Program. In the past, we have submitted comment letters both to the Coastal Commission and the Marin County Board of Supervisors detailing our concerns with the proposed amendments’ effect on property rights. For example, we noted in 2013 that portions of the proposed Land Use Plan unduly restricted the rights of property owners to make productive use of their land and required them to make unconstitutional dedications of property in return for development permits. Now, the Board of Supervisors is set to consider the final Implementation Program for Agriculture – a set of County ordinances to bring the new LCP into effect. Should the Board approve the Implementation Program, it would go to the Coastal Commission for certification along with the LCP.

Yesterday, joined by our friends at the California Cattlemen’s Association, PLF submitted this comment letter on portions of the Implementation Program. We principally expressed our concerns about the Program’s curtailment of development rights. The ordinances, if approved, would essentially create a stealth downzoning of agricultural land. They permit only three structures per “farm tract,” which is defined as all commonly-owned contiguous parcels. Even if one family owned connected lots totaling over 1000 acres, they could only build three structures on their land. As the California Court of Appeal has held, this sort of extreme downzoning may cause a taking when applied to particular tracts. We pointed out that the County could expose itself to significant liability if it goes through with these changes.

The Program also includes a curious provision that appears to require land within the Coastal Zone to be owned by a farmer and engaged in agriculture. Most zoning laws prohibit certain uses of property, but this one purports to require a particular use. Should farmers decide to sell their land, they are restricted from selling to anyone who will not use the land for agriculture. And if a farmer decides to retire and just use the land as a residence, it appears from the text of the Implementation Program that he would then be in violation of County ordinances. These provisions are a significant limitation on the right to reasonable use of property, and we asked the County to reconsider them.

Finally, the Program requires property owners to enter into restrictive covenants that bind all future owners to these potentially illegal restrictions. Once a covenant is signed, it can become very difficult to challenge even the most burdensome regulations of property rights. These provisions would be bad enough if imposed on today’s property owners, but are far worse when compounded over many years. That is why we urged the Board in our letter to reconsider all of these provisions.

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