Marin sued over pending LCP rule

07/20/2017

A lawsuit brought by the conservative Pacific Legal Foundation over a proposed policy in Marin County’s Local Coastal Program threatens to stall the already eight-year-long process of updating the critical planning
document.

Last Friday, the foundation filed suit on behalf of Willie Benedetti, a second-generation turkey and chicken farmer in Valley Ford whose products have been featured on national television. The lawsuit challenges a pending requirement that new intergenerational housing built in the agricultural zone be owned by someone actively involved in agricultural production on the land. 

According to the suit, Mr. Benedetti hopes to build another home on his 267-acre property for use by his son, who is not currently involved in the family business. The suit argues that a section of the Local Coastal Program, which is slated to go into effect next May, would require Mr. Benedetti to remain “actively and directly engaged” in the farming business as long as he remained the landowner. 

That requirement, the foundation argues, “threatens Mr. Benedetti’s ability to eventually retire and hand over control of his business.” It also constitutes a violation of the Fourteenth Amendment’s due process clause because it deprives him of “his liberty to engage in the career of his choosing,” the suit states.

Mr. Benedetti, whose turkeys have been praised by the Wall Street Journal and Martha Stewart, denounced what he called the county’s attempt to interfere in his and his family’s future. 

Deputy County Counsel Brian Case said he could not comment because the county had not yet received the complaint.

Marin’s Local Coastal Program identifies the location, type, densities, and other ground rules for future development in the coastal zone. An update to the program, first certified in the early ‘80s, began eight years ago and has included extensive back and forth with the California Coastal Commission, which must approve it. The county has until May 2018 to finalize the entire program.

Recently, the Board of Supervisors approved one group of updates to the program, the Land Use Plan, with the exception of a section relating to environmental hazards, and the coastal commission moved ahead with its approval of that plan’s language last Friday. 

The county expects to finish drafting the environmental hazards section by the end of the year, and must complete another group of updates known as the Implementation Plan before all is finalized.

The lawsuit addresses a portion of the Land Use Plan amendment that establishes new permitting requirements within the agricultural production zone, including for intergenerational housing and agricultural worker housing. 

Under the pending new policy, any agricultural dwelling unit “must be owned by a farmer or operator actively and directly engaged in agricultural use of the property.”

According to the Pacific Legal Foundation’s press release, the lawsuit challenges that requirement as a violation of the Fourteenth Amendment’s due process clause because it unconstitutionally deprives Mr. Benedetti of “his liberty to engage in the career of his choosing.” The suit also challenges the requirement under the Fifth Amendment’s takings clause “because it amounts to an unreasonable dictate with no tie to any public need created by any development project application.”

“Government can’t use development permits as instruments of raw coercion, forcing applicants to dance to the bureaucracy’s arbitrary whims,” Jeremy Talcott, an attorney for the foundation, said. “That’s a well-settled constitutional principle. It’s shocking that Marin County has the audacity to tell permit applicants what line of work they must pursue, just for trying to build a home on their own property. This attempt to dictate people’s lives and futures doesn’t just violate constitutionally protected property rights, it violates fundamental human liberty to choose if, when, and how you work.”

Mr. Talcott told the Light that they the legal foundation has followed the development of Marin’s Local Coastal Program very closely, and originally contacted Mr. Benedetti to see if he was interested in being a plaintiff for the suit. 

The foundation, a Sacramento-based nonprofit, was founded by senior staffers for Ronald Reagan while he was governor, and handles issues of property rights nationwide. Locally, it unsuccessfully sued the Bolinas Community Public Utility District in the 1980s over the district’s water hookup moratorium.

In crafting the new language for the intergenerational housing rule, county planners were motivated by a desire to support the continuity of farms and ranches across generations, county planner Jack Liebster said. 

Currently, county regulations limit agricultural parcels to one residence per 60 acres, which gave farmers little choice but to divide their land if they wished to have more than one residence. Furthermore, to build the new residence, they had to prove that the homes “protect and enhance continued agricultural use and contribute to agricultural viability.”

But as the updated Local Coastal Program section is written now, a farmer’s land can have up to three residences as long as they total no more than 7,000 square feet. Though the landowner does need to be involved in farming, Mr. Liebster said this language was included to encourage active agricultural families that want to pass the trade along to their children. The county would not likely go out and evaluate how involved the older generation was; rather, it would be assumed they were involved if they lived there. 

Supervisor Dennis Rodoni, who said he visited Mr. Benedetti twice this year, once with other supervisors and once with Mr. Liebster, said the suit may stem from a misunderstanding around the Local Coastal Program’s language. 

“The clear intent of what we were trying to do is to provide a way for the younger generation to build a place to live if they wish to take over the farming activities, while allowing the older generation to continue living on the property,” Supervisor Rodoni said. 

He said the language may have to be tweaked so it is clear that the county is seeking to support ongoing agriculture, not limit the ability for the older generation to pass along their trade. 

“I think this lawsuit is primarily about property rights, rather than about what will guarantee intergenerational housing,” Supervisor Rodoni said. He added that it seemed that Mr. Benedetti would actually be better off with the new language. 

Supervisor Rodoni said that the suit put the update process in jeopardy. He said he wasn’t sure what would happen if there were still to be open litigation next May, and that the board would have to look to legal staff to recommend the best course of action. “If the litigation is successful, on the other hand, we may go back and reconsider this part [of the program],” he said.