Anyone who reads this blog regularly knows Tiburon, California, even if you’ve never stepped foot there. Yes, that Tiburon. Well, the beat goes on: the Agins litigation wasn’t the only time that the town and its residents combined forces to try and draw up the drawbridge and prevent the building of more homes in this very exclusive and chichi Marin County waterfront and hilltop community with commanding multi-million dollar views of San Francisco and the Bay. 

For the latest example, read the California Court of Appeal’s opinion in Tiburon Open Space Committee v. County of Marin, No. A159860 (May 12, 2022). It’s 110 pages, but don’t let that discourage you (it’s not necessary to dig into the details, unless you are a true CEQA nerd). The facts alone are hair-raising. But on the other hand, the story may be an old story to you experienced land use hands, who know that your result horizon in the development game can be a long one (buy us a beer at the next ALI-CLE Conference, and I’ll regale you with the story of our own land use/takings fight that needed over two decades to resolve).

In this case, the “old story” is a really old story (for our story begins in 1974). You don’t remember 1974? Watergate was in full swing, ABBA wins Eurovision, we were freaking out about the price of gas because it was 53¢!, the war in Vietnam was winding down but still ongoing, the Cleveland Indians had Ten Cent Beer Night (with predictable results), and Muhammad Ali and George Forman were duking it out in Zaire.

Well that’s when the owner of vacant land on the edge of the Town of Tiburon in unincorporated Marin County thought about building some homes. The parcel is 110 acres, and even under the then-zoning’s density requirements, that meant 300 residences could be built. But the County rezoned the land to limit the homes to at most 34, and barred development of portions of the property entirely (the “Ridge” and “Upland Greenbelt” areas). Federal regulatory takings lawsuit followed. 

In ’76, the landowner and the County settled the federal lawsuit by way of a stipulated judgment. The court ordered that the owner could develop 43 single-family residences on 1/2 acre lots, and that some development could take place in the Ridge and Upland Greenbelt areas. The owner dedicated half of the land to the County as open space and for trail use, and the County determined that 43 homes were consistent with the general plan. Because the owner had not yet produced specific plans or undertaken environmental review, the judgment still required the owner to submit these items for County consideration.

Flash forward years. Decades, actually:

After years of planning, [the owner] submitted its application for a development plan to the County, and the County in turn directed [the owner] to file its application with the Town for approval. After the Town conducted years of study without rendering a decision, [the owner] withdrew its application from the Town and on April 19, 2005, reapplied to the County.

Slip op. at 5.

Did the County comply with the 1976 federal judgment? No. Instead, it returned to federal court, suing the owner and other owners (who had said they would sue the County if it complied with the Judgment), asking that it “be relieved from operation of the Judgment.” The main claim was that the Judgment was void because it contracted away the County’s police and statutory powers. The federal court dismissed the complaint.

Which resulted in another stipulated judgment in 2007. Which mostly restated the requirements in the ’76 Judgment, but also included requirements for processing a subdivision map, and other details to hold the County’s feet to the fire. See slip op. at 7-9. 

The next year, 2008, the owner filed an application for development with the County. Three years later, the County prepared and circulated a draft EIR. That started the ball rolling on the CEQA show, with public hearings, comments, objections, responses, and the like. See slip op. at 10-11. As you land users know, CEQA review is ostensibly designed to provide decision-makers with information about a proposed use’s impacts, vel non, on the environment, so they can, you know, make an informed decision. CEQA isn’t designed to block development by iteself, just to allow consideration of environmental concerns. But the reality is much different, and the statute is regularly employed to block or delay development. Justices of the California Supreme Court have said so (even as the court as a whole does nothing about it).

Death by a thousand days can be a potent tool for those committed to opposing development. “Significant environmental concerns” certainly sounds a lot better than “I’ve got mine.” Consequently, the County Board of Supervisors refused to certify the EIR, because of “too many unknowns.” Give us more information, property owner! “More than three years passed before [the owner] returned with the ‘more specific proposal’ demanded by the Supervisors.” Slip op. at 12.

By now, we’re in 2017, and the County couldn’t slow-walk this any longer, and after its lawyer reminded the Supervisors about the two federal court judgments, it reluctantly (3-2) certified the EIR. See slip op. at 14-20.

Next stop, a California trial court. Other Tiburon property owners sued the County and the owner, claiming the EIR approval did not comply with CEQA’s requirements, and that the federal court judgments were illegal because they contracted away the County’s police and CEQA powers, and therefore void. Slip op. at 23. The Town of Tiburon intervened to take the side of the plaintiffs. The court rejected the arguments, concluding that the County correctly certified the EIR.

That takes us to page 23 of the Court of Appeal’s opinion. The next few pages are devoted to an overview of CEQA, and its ostensible purpose (information), and the limitations of EIRs. See slip op. at 26 (“Too much should not be expected of an EIR. It is not to have the exhaustive scope of a scientific textbook.”).

Then the court went through what we consider the really good stuff: are the two federal court judgments void because they “contracted away” the County’s police powers and statutory powers under CEQA? Did the judgments deprive County of the discretion to act in the public interest?

The court first dismissed as “hyperbole,” insinuations that the County actually did refuse to exercise its discretion. Slip op. at 31. The court concluded that the outcome of the CEQA process was not “pre-ordained,” and rejected the argument that the County only certified the EIR because it was legally compelled to do so by the judgments. “[P]ointless kabuki,” as the court put it. See slip op. at 31 (the court rejected the argument as “without merit”).

The court agreed that government generally cannot contract away its police powers, but concluded that here, the County’s didn’t do so because it did exercise its discretion. The judgments required the preparation of an EIR, which was not a “pro forma exercise.” Slip op. at 34. The County could not “blow off” (court’s words, not ours) CEQA, nor did it. Id. The “lengthy administrative process attending the EIR” confirmed that the County’s consideration was not pretextual. The court rejected the plaintiffs’ and the Town’s implicit assumption that once environmental issues are present, CEQA requires that environmental concerns override everything else:

Petitioners’ novel framework, under which longstanding legal obligations would become unenforceable when subject to environmental review, would turn California law on its head.

Slip op. at 35. No, the court concluded, the County was acting as CEQA envisions, because – guess what – even if there are impacts on the environment, the reviewing agency can override when it “deems a project sufficiently important or desirable for reasons that override the normal obligation to mitigate significant environmental effects.” Slip op. at 37.

The court held that the County did not agree in the judgments “to exempt a class of applicants or … quit the particular regulatory field.” Nor has it “conditioned its exercise of authority upon the agreement of other governmental entities, thus giving those entities actual control or veto power,” or agreed “to refrain from legislating in the future,” or “approve a project it knew was incompatible with its general plan,” or agreed “to give a developer an exemption from zoning laws.” Nor was this a “situation where an otherwise valid agreement has been rendered invalid by subsequently enacted regulation.” Slip op. at 37-38. 

What we have here is simply a single project with a particular set of attending circumstances, one of which is concluded litigation. There is nothing intrinsically suspect about a governmental entity settling a lawsuit brought by a property developer. Quite the contrary, the law favors and encourages the settlement of legal disputes. Indeed, the practice as applied to property development disputes is common and has been approved by our Supreme Court. Moreover, although it may look a bit like putting the cart before the horse, a lead agency can commit to a project before completing a thorough environmental review.

Slip op. at 38.

And don’t forget that the underlying judgments were not just plain old civil judgments, but federal court judgments resolving a federal civil rights case, all of which the County signed on to. As the court put it, “[t]he 1976 Judgment was not an abandoned derelict that suddenly loomed out of the fog.” Slip op. at 39. The Town and the plaintiffs “knew it was a dagger pointed at the heart of their campaign to defeat entirely any development of the site, or failing that, to minimize the extent of any development.” Id.

And shouldn’t a citizen be able to rely on the government’s word (especially when that word is given in open court? 

Twice, the County pledged its name and good faith in accepting that [the owner] would be allowed to build at least 43 units on lots of at least one-half acre. To judge from the County Counsel’s remarks to the Board, it may safely be assumed that the County acceded to the 1976 Judgment in recognition that its 1974 re-zoning attempt exposed it to significant monetary liability. Certainly, no one would question [the owner]’s natural inclination to take the judgment at face value, believing the County’s word was good.

Slip op. at 39.

Having resolved that issue in favor of the County and the property owner, the opinion turned to the specifics of the plaintiffs’ CEQA objections, including things like project description, analysis of alternatives, mitigation of impacts (for things like traffic safety (really), traffic density (really), pedestrian safety (sounds like an environmental impact, doesn’t it?), impacts on the California Red-Legged Frog, groundwater supply, something called “fire flow,” the impacts of the temporary construction road). The court also rejected the kitchen sink (we kid, we kid). See slip op. 44-104. We’ll leave those to you to digest, you CEQA mavens.

The opinion ended with four pages that really are worth your time. Therein, the court made some choice comments:

  • The extreme amount of time the case has taken thus far (“This dispute is almost as old as CEQA itself.”)
  • The sheer size of the reporting (“When finally certified in 2017, the EIR has been more than 20 years in the making, ballooning to almost three times the recommended maximum size of 300 pages. And now it is 2022, five more years later.”).
  • CEQA “can be manipulated to be a “formidable tool of obstruction, particularly against proposed projects that will increase housing density.”
  • Agreeing with the observation that ““[n]ew housing projects were the most frequent target of CEQA lawsuits,” and “the percentage of CEQA lawsuits against new housing units” has even been increasing in recent years.”
  • That the record here, despite it sheer size and the length of time it took to develop it, is “woeful.”

The opinion wrapped with this:

It must be tough enough when the opposition is purely private.  However, when private opposition is joined with official hostility, CEQA becomes an even more fearsome weapon. When the project proponent faces sustained private opposition, plus the combined animus of two levels of local government, the temptation to throw in the towel must be overwhelming.

Something is very wrong with this picture.

Slip op. at 108.

And even though a court has now, finally, set the record straight, this ain’t over. Gas may now be nearly $7 a gallon, and the Cleveland baseball club is the “Guardians” (but ABBA is still here). Are there other ways that the Town and opponents can deny, delay, and obstruct? We’re not saying no.

Four decades, and counting….

Tiburon Open Space Committee v. County of Marin, No. A159860 (Cal. Ct. App. May 12, 2022)