Opinion

Benedetti v. County of Marin

Court
California Court of Appeal
Filed
Aug 29, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 39.0%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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