The opinion
Filed 8/29/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ARRON BENEDETTI et al.,
Plaintiffs and
Appellants,
v. A170403
COUNTY OF MARIN,
(Marin County
Defendant and
Super. Ct. No.
Respondent;
CIV2103128)
CALIFORNIA COASTAL
COMMISSION,
Real Party in Interest.
Arron and Arthur Benedetti and the Estate of Willie
Benedetti (collectively, Benedettis) appeal from the trial court’s
judgment denying their petition for writ of mandate and
complaint for declaratory judgment and injunctive relief. 1 The
Benedettis’ complaint challenged a new provision in the County
of Marin’s (county) amended local coastal program that allows
owners of certain farm lands to build additional residential units
so long as the property owner records a restrictive covenant in
favor of the county that states the owner of the new units will be
1 Where necessary to avoid confusion, we refer to the
individual Benedettis by their first names.
1
actively and directly engaged in agriculture, which is defined as
being directly engaged in commercial agriculture or leasing the
property to a commercial agricultural producer. The Benedettis
contend this provision is facially unconstitutional because it does
not satisfy the nexus and proportionality requirements of Nollan
v. California Coastal Commission (1987) 483 U.S. 825 (Nollan)
and Dolan v. City of Tigard (1994) 512 U.S. 374 (Dolan) and
violates their substantive due process rights under the state and
federal constitutions not to work in a specific occupation. We
conclude, contrary to the trial court, that the Benedettis may
raise a facial Nollan/Dolan claim. But we agree with the trial
court that they have failed to show the provision is
unconstitutional, so we affirm the judgment.
BACKGROUND
I. Legal background
The California Coastal Act of 1976 (Pub. Resources Code, 2
§ 30000 et seq.; Coastal Act) “ ‘was enacted by the Legislature as
a comprehensive scheme to govern land use planning for the
entire coastal zone of California.’ ” (Pacific Palisades Bowl
Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783,
793.) The Coastal Act “requires local governments . . . to develop
a local coastal program (LCP). The LCP, consisting of a land use
plan (LUP) and implementing ordinances, is designed to further
the objectives of the Coastal Act. [Citations.] The Coastal Act
provides that a local government must submit its LUP to the
2 Undesignated statutory citations are to the Public
Resources Code.
2
California Coastal Commission (the [c]ommission) for
certification that the LUP is consistent with the policies and
requirements of the Coastal Act. [Citations.] After the
Commission certifies a local government’s LUP, it delegates
authority over coastal development permits to the local
government.” (Beach & Bluff Conservancy v. City of Solana
Beach (2018) 28 Cal.App.5th 244, 252 (Beach & Bluff).) A local
government must also submit its implementing ordinances to the
commission for approval. (§ 30513, subd. (a).)
The Coastal Act contains several provisions prioritizing the
maintenance of agricultural land in the coastal zone. (§§ 30241–
30242.) Most relevant here is section 30242, which states that
lands “suitable for agricultural use” other than prime
agricultural lands “shall not be converted to nonagricultural uses
unless (1) continued or renewed agricultural use is not feasible,
or (2) such conversion would preserve prime agricultural land or
concentrate development . . . .” (See § 30241 [addressing
preservation of prime agricultural lands, which are scarce in the
county].)
II. The county’s LCP
The county’s original LCP, which the commission originally
certified in 1981, adopted a planned district zone, designated as
the agricultural production zone (APZ), for all agriculturally-
zoned lands in the coastal zone that fall outside the boundaries
for community expansion. The principal use of APZ lands was
agricultural, with a maximum density of 1 unit per 60 acres of
development that were accessory, incidental, or in support of
3
agriculture. The permitted uses of APZ land were for agriculture;
one single-family dwelling for each group of contiguous parcels
under common ownership; and accessory structures appurtenant
and necessary to agricultural uses, such as barns or corrals.
Conditional uses included land divisions, farmworker housing,
and mobile homes for the owner’s employees who were actively
and directly engaged in agriculture. Any land division or
development required, among other things, a master plan
showing that the proposed division or development would protect
and enhance continued agricultural use and was necessary
because agricultural use of the property was no longer feasible.
Development also required permanent conservation easements
allowing only agricultural uses over the portion of a property not
developed.
III. The county’s amended LCP
The county’s amended LUP, which is part of its amended
LCP and which the commission certified in 2019, continues to
limit the use of land in the APZ, renamed the coastal APZ (C-
APZ), to agriculture or accessory and supporting uses and to
restrict land divisions and non-agricultural uses. The amended
LUP allows residential development in other zones, such as the
coastal agricultural residential planned zone and the coastal
residential agricultural district. The amended LUP’s policies
were designed to protect and strengthen agriculture while also
deterring the incursion of non-agricultural uses that would
convert agricultural land. But the amended LUP also recognizes
4
that farmworker housing is an integral part of many agricultural
operations.
The amended LCP’s implementing ordinances state that
the principal permitted uses of lands in the C-APZ are
agriculture, defined as agricultural production, agricultural
accessory structures and activities, agricultural dwelling units,
sale and processing of products grown on the farm, and non-profit
educational tours. Agricultural dwelling units consist of one
farmhouse or one farmhouse and one intergenerational home per
farm tract, and agricultural worker housing with up to 36 beds in
group living quarters. A farm tract is all contiguous lots under
common ownership. An intergenerational home is an
agricultural dwelling unit occupied by occupants authorized by
the farm owner or operator actively and directly engaged in
agricultural use of the property. Conditional uses include a
second intergenerational home, worker housing above 36 beds
per lot, and land divisions.
Each agricultural dwelling unit must be owned by a farmer
or operator “actively and directly engaged in agricultural use of
the property.” Development of a farmhouse or intergenerational
home also requires the recording of a restrictive covenant
running with the land for the benefit of the county ensuring that
any use will be in conformance with zoning restrictions,
prohibiting the future division of the lot containing the unit
except for a lease of the rest of the lot for agricultural use, and
assuring that the owner of the unit will be “actively and directly
engaged in agricultural use” of the lot and the use of the lot will
5
be restricted to agriculture. “Actively and directly engaged” is
defined to mean “making day-to-day management decisions for
the agricultural operation and being directly engaged in
production of agricultural commodities for commercial purposes
on the property or maintaining a lease to a bona fide commercial
agricultural producer.”
The commission’s staff explained in response to public
comments on the draft implementation plan for the amended
LUP that the amended LCP (both the LUP and implementing
ordinances) were intended to ensure that the values of
agricultural land would be driven by agricultural uses rather
than residential uses, to maintain the economic appeal of
agriculture and control the cost of agricultural land.
IV. The litigation
Before his death in 2018, Willie owned 267 acres of land
across two contiguous parcels in the C-APZ. Willie operated two
agricultural companies, and Arthur and Arron currently both
have roles in the companies. However, Arron and Arthur are
both full-time plumbers. Neither Arron nor Arthur is engaged in
day-to-day operations of the companies, and neither they nor the
companies are engaged in agricultural activity on the property.
Poultry companies rent buildings on the property at times, but
not year-round.
One of the two parcels has a residential structure. Willie
lived in the home with Arron before Willie’s death, and he
intended to build another home on his property for Arthur.
Arthur now wishes to build the second residence for himself.
6
Willie’s will devises the parcels separately to his sons, one to
Arron and one to Arthur.
After the county’s board of supervisors adopted the
implementing ordinances for the amended LCP in 2021, the
Benedettis challenged them by filing a petition for writ of
mandate and complaint for declaratory relief against the county.
The Benedettis alleged in their first cause of action that the
restrictive covenant condition forcing a landowner to engage in
an occupation in exchange for a development permit was facially
unconstitutional under the unconstitutional conditions doctrine.
They alleged the restrictive covenant condition was
unconstitutional because it violated their due process rights
under the state and federal constitutions and because it could
never satisfy the nexus and proportionality requirements under
the federal constitution as established in Nollan/Dolan. The
Benedettis also alleged a cause of action for writ of mandate
under Code of Civil Procedure section 1085. 3
In an order addressing a demurrer filed by the county and
the commission (collectively, “joint parties”), the trial court ruled
that the Benedettis could not allege a facial takings challenge
based on Nollan/Dolan. Later, applying rational basis review,
the trial court denied the Benedettis’ petition and complaint
based on their due process theory.
3 The Benedettis also alleged a cause of action for writ of
mandate under Code of Civil Procedure section 1094.5. The trial
court sustained the joint parties’ demurrer to that cause of action
with leave to amend. The Benedettis did not amend their
complaint and do not challenge this ruling on appeal.
7
DISCUSSION
I. Standard of review
“ ‘In evaluating a facial challenge, a court considers “only
the text of the [challenged enactment] itself, not its application to
the particular circumstances of an individual.” [Citation.] The
California Supreme Court has not articulated a single test for
determining the propriety of a facial challenge. [Citation.]
Under the strictest test, the [enactment] must be upheld unless
the party establishes the [enactment] “ ‘inevitably pose[s] a
present total and fatal conflict with applicable constitutional
prohibitions.’ ” [Citation.] Under the more lenient standard, a
party must establish the [enactment] conflicts with constitutional
principles “ ‘in the generality or great majority of cases.’ ”
[Citation.] Under either test, the plaintiff has a heavy burden to
show the [enactment] is unconstitutional in all or most cases, and
“ ‘cannot prevail by suggesting that in some future hypothetical
situation constitutional problems may possibly arise as to the
particular application of the [enactment].’ ” ’ ” (Beach & Bluff,
supra, 28 Cal.App.5th at p. 264.)
“ ‘Facial challenges to statutes and [local enactments] are
disfavored. Because they often rest on speculation, they may lead
to interpreting [enactments] prematurely, on the basis of a bare-
bones record. [Citation.] Also, facial challenges conflict with the
fundamental principle of judicial restraint that courts should not
decide questions of constitutional law unless it is necessary to do
so, nor should they formulate rules broader than required by the
8
facts before them.’ ” (Beach & Bluff, supra, 28 Cal.App.5th at
p. 263.)
“The interpretation of a legislative enactment and the
determination of its constitutionality are questions of law we
review de novo. [Citation.] ‘[W]e start from “the strong
presumption that the [enactment] is constitutionally valid.”
[Citation.] “We resolve all doubts in favor of the validity of the
[enactment]. [Citation.] Unless conflict with a provision of the
state or federal Constitution is clear and unmistakable, we must
uphold the [enactment].” ’ ” (Beach & Bluff, supra,
28 Cal.App.5th at p. 264.)
II. Takings Claim
A. Legal Overview
“As a general matter, the unconstitutional conditions
doctrine imposes special restrictions upon the government’s
otherwise broad authority to condition the grant of a privilege or
benefit when a proposed condition requires the individual to give
up or refrain from exercising a constitutional right.” (California
Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435,
457.) The Supreme Court has applied the unconstitutional
conditions doctrine to protect various rights, including the rights
of free speech and travel. (Koontz v. St. Johns River Water
Management Dist. (2013) 570 U.S. 595, 604 (Koontz).)
“Nollan and Dolan ‘involve a special application’ of this
doctrine that protects the Fifth Amendment right to just
compensation for property the government takes when owners
apply for land-use permits.” (Koontz, supra, 570 U.S. at p. 604.)
9
Those cases established a two-part test to determine whether a
permit condition is an unconstitutional taking. (Sheetz v. County
of El Dorado, California (2024) 601 U.S. 267, 275 (Sheetz), revg.
Sheetz v. County of El Dorado (2022) 84 Cal.App.5th 394.) “First,
permit conditions must have an ‘essential nexus’ to the
government’s land-use interest. [Citation.] The nexus
requirement ensures that the government is acting to further its
stated purpose, not leveraging its permitting monopoly to exact
private property without paying for it. [Citation.] Second, permit
conditions must have ‘ “rough proportionality” ’ to the
development’s impact on the land-use interest. [Citation.] A
permit condition that requires a landowner to give up more than
is necessary to mitigate harms resulting from new development
has the same potential for abuse as a condition that is unrelated
to that purpose.” (Sheetz, at pp. 275–276.)
The Nollan/Dolan test “applies regardless of whether the
condition requires the landowner to relinquish property or
requires her to pay a ‘monetary exactio[n]’ instead of
relinquishing the property.” (Sheetz, supra, 601 U.S. at p. 276.)
The Supreme Court also made clear last year that the test
applies equally to fees or conditions imposed administratively as
well as legislatively. (Id. at pp. 276, 279.) However, “there can
be no valid unconstitutional-conditions takings claim without a
government exaction of property.” (California Building Industry
Assn. v. City of San Jose, supra, 61 Cal.4th at p. 457.) A
regulation that “simply restricts the use of property without
demanding the conveyance of some identifiable protected
10
property interest (a dedication of property or the payment of
money) as a condition of approval” does not bring the
unconstitutional conditions doctrine into play. (Id. at p. 460.)
B. Viability of a facial Nollan/Dolan Claim
The trial court denied the Benedettis’ takings claim
because it concluded they could not bring a facial Nollan/Dolan
claim. It reached this conclusion largely based on Beach & Bluff,
supra, 28 Cal.App.5th 244. As relevant here, that case concerned
a Nollan/Dolan challenge via petition for writ of mandate and
complaint for declaratory judgment against certain policies in an
amended LCP governing the repair or replacement of stairways
and shoreline or bluff protective devices. (Id. at pp. 252, 254–
255, 263.) The court rejected the plaintiffs’ argument based on
the unconstitutional conditions doctrine because it concluded “the
doctrine, with its attendant Nollan/Dolan test, generally is not
applied to facial challenges.” (Id. at p. 267, italics omitted.) It
relied in part on Action Apartment Assn. v. City of Santa Monica
(2008) 166 Cal.App.4th 456, 470, which in turn followed San
Remo Hotel v. City and County of San Francisco (2002)
27 Cal.4th 643, 670, to hold that the Nollan/Dolan test governed
only individual adjudicative permit approval decisions and fees,
not generally applicable legislative general zoning decisions or
development fees. 4 (Beach & Bluff, at pp. 267–268.)
4 While San Remo Hotel v. City and County of San
Francisco, supra, 27 Cal.4th at page 649, fn. 1, applied only the
California Constitution’s takings clause, the court acknowledged
that in all aspects relevant here it interprets the state and
federal takings clauses “congruently” (id. at p. 644).
11
The court also cited section 30010, which states the
Legislature’s view that the Coastal Act “is not intended, and shall
not be construed as authorizing the commission . . . or local
government acting pursuant to this division to exercise their
power to grant or deny a permit in a manner which will take or
damage private property for public use, without the payment of
just compensation therefor.” (Beach & Bluff, supra,
28 Cal.App.5th at pp. 271–272.) The Beach & Bluff court held
that entertaining a facial challenge to the LCP policies at issue
there would have deprived the local government and the
commission of the opportunity under section 30010 to apply the
policies in a way to avoid resulting in a taking or having to pay
compensation for one, “such as exempting the property from the
regulation, amending the regulation, or rescinding the
regulation.” (Beach & Bluff, at p. 272.)
While the trial court’s reliance on Beach & Bluff was
understandable when it ruled in July 2023, this aspect of Beach
& Bluff is no longer good law after Sheetz, which was decided in
April 2024. Sheetz, supra, 601 U.S. at page 270 expressly
rejected the notion that “Nollan and Dolan apply only to permit
conditions imposed on an ad hoc basis by administrators” and
held that the Takings Clause “does not distinguish between
legislative and administrative permit conditions.” Sheetz itself
vacated and remanded a Court of Appeal decision that had
followed San Remo Hotel v. City and County of San Francisco.
(See Sheetz v. County of El Dorado, supra, 84 Cal.App.5th at
p. 410.) Sheetz therefore abrogated San Remo Hotel v. City and
12
County of San Francisco and Action Apartment Assn. v. City of
Santa Monica in this respect, as well as this aspect of Beach &
Bluff.
The joint parties resist this conclusion, noting that the
challenge in Sheetz was as applied, not facial. This is true but
irrelevant. Because the challenge was as applied, Sheetz had no
occasion to address whether a plaintiff could state a facial
Nollan/Dolan challenge. But by sweeping away the distinction
between legislative and administrative actions for the purposes of
Nollan/Dolan, Sheetz eliminated the logical foundation for Beach
& Bluff’s conclusion that Nollan/Dolan cannot be applied facially.
The joint parties also argue that allowing a facial
Nollan/Dolan challenge to the restrictive covenant requirement
would deprive them of their discretion under section 30010 to
apply the requirement constitutionally, such as by relaxing the
requirement where necessary to avoid a taking. They assert that
because the Benedettis have not applied for a development
permit, the joint parties have not committed to any final,
definitive position regarding how they would apply the restrictive
covenant condition to anyone. We have no quarrel with the
notion that some permit conditions can be altered or relaxed in
specific circumstances to avoid constitutional problems and that
this can preclude a facial challenge. However, section 30010’s
takings-avoidance mechanism can only foreclose a facial
challenge to a permit condition if the permit can be applied
constitutionally in some cases but not others. Where a party
argues that a permit condition will always be a taking in every
13
instance where it is applied, giving the county or commission
discretion to waive the condition serves no purpose. If the
Benedettis’ challenge has merit, the county or commission must
waive the condition in every instance when requested by a
landowner. Having a court declare such a condition
unconstitutional would thus not deprive the county or
commission of the exercise of any expertise or discretion. It
would also be unjust to require only as-applied challenges to such
a condition and allow it to otherwise remain in force, since it
would deter landowners from properly exercising their rights.
The Benedettis’ takings challenge is mostly consistent with
the tests our Supreme Court has established for facial challenges.
With one exception that we mention post, the Benedettis contend
the restrictive covenant condition can never satisfy the nexus or
proportionality requirements, regardless of the specific
circumstances of the landowner who applies to build a new
agricultural dwelling unit. This mirrors the more stringent test
that requires a plaintiff to demonstrate a legislative enactment’s
provisions “ ‘ “ ‘inevitably pose a present total and fatal conflict
with applicable constitutional provisions’ ” ’ ” (Beach & Bluff,
supra, 28 Cal.App.5th at p. 264), so the Benedettis’ takings claim
is suitable for resolution as a facial challenge. Because it meets
the more stringent standard, it is necessarily also suitable under
the less onerous approach that looks at whether an enactment
creates constitutional problems at least “ ‘ “ ‘in the generality or
great majority of cases.’ ” ’ ” (Ibid.)
14
In a variation on this theme, the joint parties assert that
the Benedettis cannot bring a facial Nollan/Dolan challenge
because the restrictive covenant condition operates through a
permit process, so that the amended LCP does not impose any
exaction on a landowner until the landowner applies for a permit
to develop an agricultural dwelling unit. They again cite Beach
& Bluff, but this contention fares no better.
In the alternative to its blanket conclusion that a facial
Nollan/Dolan challenge automatically fails, Beach & Bluff
rejected a facial challenge to one permit condition requiring
conversion of private stairways to public stairways because it
turned on questions of whether conversion was “ ‘feasible,’ ”
whether public access could “ ‘reasonably be provided,’ ” and
whether the stairway in question already partially used public
land or land subject to a public access requirement. (Beach &
Bluff, supra, 28 Cal.App.5th at p. 269.) The court found it
impossible to consider Nollan/Dolan’s application to these
considerations except on a case-by-case basis. (Ibid.) The other
condition at issue in Beach & Bluff prohibited the use of certain
bluff protective devices to protect new development and required
landowners receiving permits for new development or blufftop
redevelopment to record deed restrictions waiving any future
right to construct such devices. (Id. at p. 270.) The court rejected
a facial challenge to that condition because new development or
blufftop redevelopment might or might not occur on specific
properties in the future and because the economic harm to
property owners could only be determined on a case-by-case
15
basis. (Ibid.) The court also reasoned that the required deed
restriction would simply limit the use of property and was not a
conveyance of an identifiable protected property interest, so it
was not an exaction. (Id. at p. 271.)
These rationales do not persuade us that the Benedettis
cannot bring a facial challenge to the restrictive covenant
condition here. The restriction will apply to any landowner who
seeks a permit for an agricultural dwelling unit, so there is no
question about whether it will apply in the future. 5 The
universal application of the condition and general nature of the
Benedettis’ challenge also means there is no need to consider
whether or how the condition will apply to a particular property
or landowner. The Benedettis do not seek economic relief, so
there is no need to consider specific property uses or values. The
restrictive covenant condition also requires a covenant running
with the land in favor of the county that affirmatively requires
the owner of an agricultural dwelling unit to engage in
5 We disagree with Beach & Bluff’s conclusion that the
possibility that some landowners will not seek to develop their
properties in the future precludes a facial challenge to a condition
of such development. “ ‘Legislation is measured for consistency
with the Constitution by its impact on those whose conduct it
affects. . . . The proper focus of constitutional inquiry is the group
for whom the law is a restriction, not the group for whom the law
is irrelevant.’ ” (American Academy of Pediatrics v. Lungren
(1997) 16 Cal.4th 307, 345 (plur. opn. of George, C. J.).) A
condition of development will always be irrelevant to any
landowners who do not seek to develop their property, but that
does not preclude a facial challenge to the application of the
condition to landowners who do.
16
agriculture or lease the property to someone who will. A
restrictive covenant prohibiting development of a property that
runs in favor of a third party is itself a property interest for
which compensation is owed to the third party when the
restriction is violated in eminent domain proceedings. (Southern
California Edison Co. v. Bourgerie (1973) 9 Cal.3d 169, 171.)
Accordingly, the requirement that a landowner record a
restrictive covenant in the county’s favor as a condition of
receiving a permit constitutes the exaction of an identifiable
property interest. 6
Our conclusion that the Benedettis’ challenge to the
restrictive covenant condition can largely proceed facially is
consistent with two cases, one of which Beach & Bluff discussed
and another that was decided later. Levin v. City and County of
San Francisco (N.D. Cal. 2014) 71 F.Supp.3d 1072, 1074, 1081,
concerned a challenge to an ordinance requiring a rental property
owner to pay a lump sum to displaced tenants in exchange for a
permit allowing the property owner to withdraw the property
from the rental market. The district court held the ordinance
was facially unconstitutional because it necessarily imposed a
monetary exaction in all of its applications and the monetary
6 To the extent that Beach & Bluff cannot be distinguished
on the basis that the restrictive covenant here affirmatively
requires the property owner to engage in certain conduct (as
opposed to waiving rights), we disagree with Beach & Bluff’s
conclusion that the recording of a deed restriction waiving a
property development right does not convey a property interest.
(Beach & Bluff, supra, 28 Cal.App.5th at pp. 270–271.)
17
exaction failed the nexus and rough proportionality tests. (Id. at
pp. 1084, 1086, 1089.) Levin demonstrates that a facial
constitutional challenge is appropriate when a party raises an
unconstitutional conditions argument that an enactment will
impose a taking regardless of how a governmental entity applies
it in any particular case.
Beach & Bluff dismissed Levin as an “anomaly” that only
allowed a facial challenge because the amount of the lump sum
payment required could be calculated precisely in advance and
legislative demands for money may be challenged immediately
without a prior damages suit. (Beach & Bluff, supra,
28 Cal.App.5th at pp. 268–269.) But the calculability of the lump
sum was not the point in Levin. The case turned instead on the
nature of the challenge and whether the ordinance at issue was
unconstitutional in all of its applications, regardless of the
circumstances of any particular property or landowner. And
while Beach & Bluff at page 269 also correctly noted that Levin is
not binding authority, unlike Beach & Bluff, we find Levin’s
reasoning persuasive here.
Alliance for Responsible Planning v. Taylor (2021)
63 Cal.App.5th 1072, 1075–1077, 1085, concerned an initiative
ordinance that required a developer, as a condition of approval of
the developer’s project, to build roads that would benefit other
projects. The court held that a facial unconstitutional conditions
challenge to the ordinance was ripe because the challenge did
“not depend on the application of the measure to a particular
petitioner or future County interpretation.” (Id. at p. 1082.) The
18
county had not yet had the opportunity to implement the
ordinance constitutionally, but this did not convince the court
that the challenge was unripe. (Ibid.) The challenge turned on
whether the ordinance was reasonably susceptible to a
constitutional interpretation, which did not depend on the
application of the ordinance to any particular person. (Ibid.) The
court also noted that because it concluded the ordinance could not
be interpreted constitutionally, “delaying consideration could
only serve to impose unconstitutional conditions or delay on
developers and spur unnecessary litigation.” (Id. at pp. 1082–
1083.) Similarly here, because the Benedettis’ challenge mostly
does not depend on the application of the restrictive covenant
condition to any particular landowner or property and delaying
resolution of the challenge would be unjust if the challenge has
merit, the challenge is suitable for facial resolution. The joint
parties dismiss Alliance for Responsible Planning as anomalous
and contend it considered only ripeness, not the viability of a
facial challenge. However, the court’s ripeness reasoning applies
equally to the question of whether a facial challenge is available,
and it is consistent with Levin, so it supports our conclusion.
In sum, because the Benedetti’s Nollan/Dolan challenge to
the restrictive covenant requirement, with one minor exception
discussed at pages 23–24, post, does not require consideration of
any individual property or landowner, we may entertain it as a
facial challenge.
19
C. Application of Nollan/Dolan
We turn now to the merits of the Benedettis’ challenge,
which requires us to consider whether the restrictive covenant
requirement has a nexus to the harm to the government’s land
use interest and whether it is roughly proportional to the impact
on that interest from the development of an agricultural dwelling
unit. (Sheetz, supra, 601 U.S. at pp. 275–276.) On the nexus
question, the Benedettis argue that the Supreme Court requires
a direct and individualized connection, something more than a
generalized connection between an exaction and broader social
goals. But they cite to Dolan for the requirement of a direct and
individualized connection, which we discuss post. Nollan
required only a reasonable relationship between a condition and
the public need or burden to which a development contributes
because the Court found the condition at issue there did “not
meet even the most untailored standards.” (Nollan, supra,
483 U.S. at p. 838.) In any event, the restrictive covenant
condition at issue easily meets the nexus requirement, regardless
of whether the joint parties must establish a reasonable
relationship or a direct connection between the condition and
their land use interests.
The joint parties’ relevant land use interests in the Coastal
Act and the county’s LCP are to maintain the agricultural
industry in the coastal zone, by separating agricultural from non-
agricultural uses and preventing residential use values from
driving up the costs of agricultural land. (§ 30242.) The
restrictive covenant condition plainly has a nexus to this interest.
20
Allowing further residential development of a farm tract would
begin to erode the distinction between agricultural and
residential uses of the land unless the residential development is
tied to the agricultural use in some fashion. At the same time,
limited development is necessary because farmworker housing is
an integral part of many agricultural operations. The restrictive
covenant condition threads the needle between these competing
concerns and satisfies them both by only allowing development of
agricultural dwelling units that will be used to support
agricultural use of the property. This is a direct connection, not a
generalized one, and a much closer fit than a reasonable
relationship.
According to the Benedettis, there can never be a nexus
because a requirement that property owners engage in
agriculture is not related to the impacts of residential
development on issues such as traffic, utilities, or environmental
resources. This argument mistakes the nature of the joint
parties’ interest. The joint parties are interested in maintaining
the viability of agriculture and restricting the use of agricultural
lands for residential purposes. The interest behind the
restrictive covenant condition is not mitigating the general
impacts of residential development.
The Benedettis point out repeatedly that the development
of a residential dwelling does not change the underlying zoning of
the property, which already limits the property to agricultural
use while allowing residential dwellings as a principal permitted
use. They maintain that the construction of a dwelling without
21
the covenant would not prevent individuals in the C-APZ from
engaging in agriculture and the restrictive covenant approach
could actually discourage the expansion of agriculture in the
county by imposing onerous restrictions on development. But
even if construction of an additional unrestricted residential unit
would not itself prevent use of surrounding land for agriculture,
it could increase the development value of agricultural land and
thus contribute to making agricultural uses less economically
viable or attractive. By tying the availability of a development
permit to the continued use of a property for agriculture, the
restrictive covenant requirement ensures that only residential
development that is consistent with and furthers or incentivizes
agriculture will take place. Also, contrary to the Benedettis’
prediction about onerous restrictions, allowing additional
residential development where necessary for agriculture should
facilitate the expansion of agricultural operations. It should
certainly encourage more expansion of agriculture than the
original LCP’s approach of entitling owners to only one single-
family dwelling per group of contiguous parcels under common
ownership.
In a related vein, the Benedettis note that the LCP strictly
limits non-agricultural uses in the C-APZ zone. They speculate
that the development of agricultural dwelling units without a
restrictive covenant would not detract from this and would
actually increase the number of individuals available to engage in
agriculture, implying the covenant is unnecessary. While the C-
APZ zoning limits the uses of the property, it still allows for
22
residential uses, as the Benedettis also note. The zoning
therefore means little if additional residential development is
permitted that is not restricted to development actually
necessary to support agricultural uses. For example, if the
owners of a farm tract build a second residential dwelling to live
in while leaving the farm unused (as the Benedettis themselves
state they intend to do), the development de facto converts the
property into a residential property and contributes to a market
for residential real estate in agricultural areas. The Benedettis
cite nothing in the C-APZ zoning restrictions or any other law or
ordinance that would prevent this from occurring in the absence
of an ongoing obligation to use the property for agriculture as a
condition of building the second dwelling. The restrictive
covenant condition seeks to address this specific problem and
maintains a direct connection between the exaction and the
impacts of the development on the joint parties’ land use interest
in ensuring the viability of agriculture.
Turning now to Dolan, the Benedettis first contend the
restrictive covenant requirement fails Dolan’s rough
proportionality test because it is not related to the impacts of
development. This is simply a restatement of the Benedettis’
Nollan nexus argument and is not persuasive for the same
reasons.
The Benedettis next fault the condition for applying equally
to farmhouses, intergenerational homes, and agricultural worker
housing, without regard to the size, location, or characteristics of
the proposed development. Dolan, supra, 512 U.S. at page 391,
23
did not require a precise mathematical calculation, merely
“ ‘rough proportionality,’ ” which the Court explained consisted of
an individualized determination that a condition was related in
both nature and extent to the impact of a proposed development.
The restrictive covenant condition meets this test on its face,
since residential development of any size or type that is not
required and used to support ongoing agriculture begins to
establish a market for residential development and erode the
viability of agriculture. To the extent that the Benedettis are
arguing that the restrictive covenant condition would be
disproportional for an agricultural dwelling unit of a specific
type, size, or location, their argument is no longer a facial
challenge. Rather, such an argument is a challenge that the
condition would be unconstitutional as applied to a specific
context. We cannot rule upon it in the context of the Benedettis’
facial challenge here.
Finally, the Benedettis point out that the restrictive
covenant condition will last in perpetuity, which they argue is
facially disproportional. But the joint parties apparently intend
to preserve the viability of agriculture in the C-APZ in
perpetuity, so it makes sense to have the condition last that long
as well. Otherwise, the covenant would merely slow the
transition away from agriculture without actually stopping it.
The Benedettis compare this case to Alliance for
Responsible Planning v. Taylor, supra, 63 Cal.App.5th at pages
1085–1087, which held that an ordinance requiring the developer
of one development to build roads that would benefit other
24
developments was not proportionate to the first development’s
impacts. But the cases are not similar. Nothing in the restrictive
covenant condition requires a landowner to contribute towards
ameliorating the effects of other developments. The problem the
joint parties have identified is that any residential development
in the C-APZ not used for agriculture makes a small but
incremental contribution towards converting the market for
agricultural lands into a market for residential land, thereby
eroding the viability of agriculture. By requiring each residential
development in the C-APZ to be used for agriculture, the
restrictive covenant condition addresses each development’s own
incremental effect. The condition is thus proportional to each
development’s impact.
III. Due Process Claim
In addition to their Nollan/Dolan argument, the
Benedettis contend the restrictive covenant condition is facially
unconstitutional because it violates their rights to due process.
The Benedettis contend that strict scrutiny applies because they
contend the restrictive covenant condition violates their
fundamental right to work. However, Nash v. City of Santa
Monica (1984) 37 Cal.3d 97 (Nash), which all parties agree is the
closest case on point, rejected this argument.
At issue in Nash was a charter provision preventing a
landowner from demolishing or converting rental units without a
permit. (Nash, supra, 37 Cal.3d at pp. 100–101.) The charter
provision made a permit available only if the rental units were
not occupied by low or moderate income tenants, the units could
25
not be afforded by low or moderate income tenants, removal
would not adversely affect the housing supply, and the owner
could not make a reasonable return on his investment. (Id. at
p. 101.) An owner of a rental apartment building challenged the
charter provision as unconstitutional because it conditioned his
fundamental right to cease doing business as a landlord on
relinquishment of his right not to sell his property. (Id. at
pp. 103–104.)
The California Supreme Court refused to apply strict
scrutiny. (Nash, supra, 37 Cal.3d at p. 104.) It explained, “All
regulation of property entails some limitation upon the liberty of
the owner; and, to the extent that the regulation limits the uses
to which the property may be put, it entails limitation upon the
owner’s liberty to pursue his chosen occupation or business at
that location. If the owner wishes to pursue his preference, he
may be constrained to sell his property and move elsewhere. If
the value of his property has decreased as a result of the
regulation, he may perceive that to be an undesirable alternative,
and to that extent feel economically constrained to continue in his
present field of endeavor. Yet, the existence of these legal and de
facto limitations upon his freedom of choice do not operate to
subject the property regulation to a strict scrutiny test, under
modern legal principles.” (Ibid.) The court also observed that the
plaintiff was “not being called upon to operate a business or
engage in a profession unrelated to the property; his landlordly
obligations are those which arise out of the ownership of the sort
of property which he acquired.” (Id. at p. 105.) The court
26
distinguished such obligations from personal services not
attached to the land. (Ibid.)
Nash rejected the argument that the charter provision in
question forced upon the plaintiff an occupation chosen by the
state. (Nash, supra, 37 Cal.3d at pp. 102–103.) It noted that the
plaintiff remained “free to minimize his personal involvement by
delegating responsibility for rent collection and maintenance to a
property manager.” (Id. at p. 103.) The court also pointed out
that the plaintiff could withhold rental units from the market as
they became vacant or sell his property and invest the proceeds.
(Ibid.)
Instead of strict scrutiny, Nash applied rational basis
review. (Nash, supra, 37 Cal.3d at p. 103.) “Both federal and
state Constitutions protect against deprivation of property
without due process of law. Yet, ‘ “[i]t is thoroughly established
in this country that the rights preserved to the individual by
these constitutional provisions are held in subordination to the
rights of society. Although one owns property, he may not do
with it as he pleases any more than he may act in accordance
with his personal desires.” ’ [Citation.] Thus, an ordinance
restrictive of property use will be upheld, against due process
attack, unless its provisions ‘are clearly arbitrary and
unreasonable, having no substantial relation to the public health,
safety, morals, or general welfare.’ ” (Ibid.; see also Nash, at
pp. 108–109 [due process test under California Constitution
27
“requires that the regulation be ‘procedurally fair and reasonably
related to a proper legislative goal’ ”].) 7
Following Nash, as we must, we conclude the Benedettis’
argument for strict scrutiny falls flat. The restrictive covenant
condition does not obligate landowners to work in agriculture;
they are only limited in their ability to work in fields other than
agriculture on a specific property. Additionally, the condition
does not raise concerns about involuntary servitude or requiring
landowners to perform personal services because it only obligates
the landowners to engage in agriculture, which is an occupation
quintessentially arising out of and attached to their land. The
restrictive covenant condition leaves the landowners free to lease
the property to someone else to engage in agriculture. They can
also choose to sell the property if they no longer wish to engage in
agriculture.
Because strict scrutiny does not apply, we consider only
whether the restrictive covenant condition is arbitrary,
unreasonable, or unrelated to the general welfare or a proper
legislative goal. (Nash, supra, 37 Cal.3d at pp. 103, 108–109.)
We find a reasonable relationship between the condition and the
general welfare and a proper legislative goal for the reasons set
forth ante regarding the Benedettis’ Nollan/Dolan challenge. The
joint parties’ legislative goal is the maintenance of agriculture as
7 The Legislature enacted the Ellis Act (Gov. Code, § 7060
et seq.) to statutorily prohibit measures like the charter provision
at issue in Nash. (Drouet v. Superior Court (2003) 31 Cal.4th
583, 589–590.)
28
a viable industry in the coastal zone by preventing the incursion
of residential development and residential property values into
agricultural lands, while also allowing for housing in support of
agricultural work. The restrictive covenant is reasonably related
to that goal because it ties the availability of further residential
development of agricultural parcels to a commitment to continue
to use the parcels for agriculture.
The Benedettis rejoin that while the charter provision in
Nash, supra, 37 Cal.3d at page 103 allowed the landlord to
withdraw units from the market as they became vacant and to
demolish the building if he could not make a fair return on his
investment or wished to withdraw from being a landlord, the
restrictive covenant condition contains no exceptions for the
potential scenario in which commercial agriculture on a property
becomes unprofitable or the landowner wants to retire. It is true
that the restrictive covenant condition does not provide
exceptions for such eventualities, but Nash did not suggest that
such features were essential to the constitutionality of the
ordinance there. Landowners remain free to sell the property to
escape the condition or lease the property to satisfy it. The
Benedettis argue in a single sentence that the First Amendment
protects the right not to associate (Roberts v. U.S. Jaycees (1984)
468 U.S. 609, 623) and a compelled lease would violate this right.
But they cite nothing to suggest that a commercial lease of land
for agriculture would qualify as a forced association for First
Amendment purposes.
29
The Benedettis distinguish Nash as concerning a property
that was already in use as a rental property when the plaintiff
acquired it (Nash, supra, 37 Cal.3d at pp. 101, 105), whereas
landowners in the C-APZ may not yet be engaged in agriculture
when they seek to develop their land. But the plaintiff in Nash
received his property apparently as a gift, and nothing in Nash
suggests the court’s reasoning about the plaintiff’s right to work
argument turned on when or how the plaintiff became a landlord.
(See id. at pp. 101, 104–105.)
In any event, we need not decide whether the restrictive
covenant condition would be unconstitutional in the hypothetical
scenarios the Benedettis describe. A plaintiff bringing a facial
challenge “ ‘ “ ‘cannot prevail by suggesting that in some future
hypothetical situation constitutional problems may possibly arise
as to the particular application of the [enactment].’ ” ’ ” (Beach &
Bluff, supra, 28 Cal.App.5th at p. 264, italics omitted.) The
Benedettis offer no reason to believe their hypotheticals
regarding lands where agriculture is no longer profitable or
landowners that seek to develop land without having previously
engaged in agriculture represent “ ‘ “ ‘the generality or great
majority of cases’ ” ’ ” (ibid.) in which the condition will be
applied, so this argument does not allow us to declare the
condition unconstitutional on its face. The condition can be
constitutionally applied outside of these hypotheticals to
landowners whose lands have been and can still be used
profitably for agriculture, which is enough to defeat the
Benedettis’ facial challenge here.
30
DISPOSITION
The judgment is affirmed.
BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
POLLAK, J. ∗
Benedetti et al. v. Marin County (A170403)
∗
Retired Presiding Justice of the Court of Appeal, First
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
31
Trial Court: Marin County Superior Court
Trial Judge: Hon. Andrew E. Sweet
Counsel: Pacific Legal Foundation, Jeremy Talcott, Johanna Talcott
and Jeffrey W. McCoy for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Shari B. Posner and
Stephanie Lai, Deputy Attorneys General; Brian
Washington, County Counsel, and Brandon W. Halter,
Deputy County Counsel, for Defendant and Respondent
and for Real Party in Interest.