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City of Sausalito
Cypress Ridge is Saved! Save Cypress Ridge!
If I had to use one word to describe the February 15th Sausalito City Council hearing, it would be, “Huh?” Was this a hearing about the Housing Element opportunity site list? Was it a hearing about conservation easements? Was it a hearing about the need to save Cypress Ridge? Well, sort of, except that city staff and most of the councilmembers seemed either surprised, confused (or pretended to be), or unsure about what they were there to do.
In any case, the City Council waded through a convoluted discussion about the City’s ability to rezone all or part of the 15 or so acres of open space land, known as Cypress Ridge, to allow for high-density housing, while simultaneously trying to understand what a “conservation easement” is and how that related to the current Housing Element planning cycle and a 1976 ballot initiative, called Measure E, that directed the city to purchase the Cypress Ridge land for “open space preservation.”
As I said, Huh?
The Staff Report and its author’s lack of time to properly prepare added to the lack of direction. And things were further confused by attempts to compare ballot measures to conservation easements, which is sort of like comparing apples and oranges. Throughout the night, the terms were used interchangeably to the point that it was sometimes hard to tell which one a councilmember was referring to. Meanwhile, representatives of Open Space Sausalito, Marin Audubon, and Marin Sierra Club, among others, showed up to emphasize the urgency to “save” Cypress Ridge. Their unanimous urging was to place the acreage under a “conservation easement,” to save it in perpetuity.
That’s all for the good, no doubt, but what was confusing is that Cypress Ridge is already preserved under the directive of a 1976 ballot initiative. And ballot initiatives don’t have expiration dates. (Unless, of course, they specifically do have one, which would have to have been clearly stated when the Measure was voted on, back in 1976, but it didn’t in the case of Measure E.)
However, conservation easements are typically a device to allow private landowners to enjoy tax benefits in exchange for restricting uses on their land. And, as explained in more detail below, since the City owns the Cypress Ridge property, a conservation easement seemed an illogical proposal. In addition, the request for a conservation easement to “save” Cypress Ridge inadvertently implied that the property’s current protections under that ballot initiative somehow did not fully protect it as an open space preserve, which is simply not true. But that question lingered, for better and for worse, in the minds of some of the councilmembers, throughout the evening.
In a follow up to the hearing, the City posted the following in their Newsletter:
At its meeting on February 15, the City Council confirmed that the Cypress Ridge Open Space would not be considered for potential housing sites as part of the Housing Element update process currently underway.
The 15-acre preserve was purchased by the City in 1977 after voters approved a $560,000 bond measure.
The parcels that make up Cypress Ridge Open Space were identified as candidate vacant parcels during preparations for the previous Housing Element update. However, they were not included as potential housing sites in the 2015-2023 Housing Element approved by the City Council.
In a staff report prepared for the February 15 meeting, Community Development Director Jim Moore indicated that Cypress Ridge was "not currently identified as being considered as vacant housing opportunity sites" for the 2023-2031 Housing Element and referred to a preliminary list of housing opportunity sites that warrant further evaluation.
So, the muddled and meandering tone of the Council hearing, aside, the result appears to be “no harm, no foul.” But, a recap is worthwhile if only to clarify the issues, memorialize some of the comments there were made, and record testimony of residents in attendance.
Some history might help
Cypress Ridge is an area of wildlands, bordered by Rodeo Avenue and Highway 101 that is presently zoned as open space.
As noted above, Cypress Ridge has unarguably been preserved as “open space.” On June 8, 1976, the voters of Sausalito went to the ballot box and approved Measure E, (1,892 in favor vs. 880 opposed) which stated,
“Shall the City of Sausalito incur a bonded indebtedness in the principal amount of $560,000 for the acquisition of the following municipal improvement, to wit: Park and recreation facilities, comprising the acquisition for open space preservation of those lands commonly referred to as Cypress Ridge?” [Emphasis added]
Measure E was unambiguous in its intentions. Therefore, since this legislation resulted from a vote of the people, it cannot be undone or otherwise altered by votes or actions of the Sausalito City Council, by fiat. As such, since July of 1976, the five land parcels that comprise what is called Cypress Ridge (APN 064-181-18, APN 064-181-21, APN 064-181-40, APN 064-133-05, and 064-133-01) have been maintained as preserved open space.
Changing the use of Cypress Ridge would either take another public ballot initiative or a change to federal or state law that somehow overruled local authority to preserve open space lands. (Similar to how newly enacted SB 9 overrules local single-family zoning laws.) Since neither of those things has occurred, the Cypress Ridge parcels cannot be considered for rezoning for housing or inclusion in any Housing Element “opportunity site listing” or any other use that would contradict the clear intention of Measure E.
Ballot measures, conservation easements, and land trusts: What’s the difference?
In the interest of clarity:
A “ballot initiative to conserve land” (as was done for Cypress Ridge, back in 1976) is when residents vote to have their government purchase land and/or preserve land as open space.
A “conservation easement” is typically an agreement between a private landowner and a government agency or a land trust that allows the owner to retain ownership and received tax benefits in the form of lower property taxes in exchange for agreeing to limit certain types or amounts of development on their land. There is no change of ownership, but sometimes a property will be sold to a private party under the condition that they place a conservation easement on the land they are buying. The City of Sausalito could do this if they chose to, e.g., sell it to an open space land trust.
A “land trust” is a private, typically nonprofit entity that takes ownership of or authority and stewardship over a piece of property at the behest of a government agency or private property owner, usually to either preserve it entirely or to preserve a particular use on it.
This considered, it would seem that since the City of Sausalito owns Cypress Ridge, transfer of title to a land trust, rather than trying to enact a preservation easement, would be the logical choice.[1]
The hearing
The presentation of the Cypress Ridge agenda item was strange from the outset. Planning staff failed to clarify what the actual point of the "no action" hearing was and admitted that their Staff Report was hastily compiled and that they had little understanding of the subjects at hand, the laws involved, or a thorough understanding of the history of events surrounding Cypress Ridge.
Mayor Kellman, whose LinkedIn page touts her achievements as an environmental attorney, chaired the meeting and when it was her turn to speak posited some questionable legal theories about ballot measures. She and City Attorney, Mary Wagner, both suggested that there was a need to explore if the ballot measure had expired or if a property deeds failed to indicate that a property is to be preserved, can the public vote (e.g., Measure E) be overridden by a vote of the City Council. Why they seemed so interested in going down that rabbit hole is a mystery. And Mayor Kellman seemed to be hedging her bets throughout the evening.
However, I’d like to point out to Ms. Kellman and Ms. Wagner that deeds are almost always silent on zoning rights,[2] (e.g., The deed for my home does not speak to what or whether I can or cannot build on my property; that is the province of local zoning laws) except in cases where federal or state funding requires a deed restriction as a condition of that funding. (i.e., for affordable housing grants or subsidies.)
Public comments on the preservation of Cypress Ridge
It’s important to note that Cypress Ridge is the last major parcel of preserved wildlands open space in the City of Sausalito. It is equally important to note that whereas other Marin County cities nearby, such as Mill Valley and Larkspur, have over 24 percent of their land dedicated as preserved open space, Sausalito only has 1.5 percent of its land dedicated as open space.[3] And Cypress Ridge comprises the majority of that. Cypress Ridge was originally considered to be included in the Golden Gate National Recreation Area (GGNRA) but was removed at the last minute because it was separated by Highway 101. As such, Sausalito’s lack of preserved open space was likely part of the reason that the 1976 ballot initiative, Measure E, preserved Cypress Ridge in the first place.
The majority of speakers made comments to that effect during public comment time, which followed the presentation of the Staff Report.
Leon Huntting, of Open Space Sausalito, affirmed that Cypress Ridge was preserved as open space by Measure E and the City Council has no authority to change its use. However, he still urged the City Council to create a conservation easement for Cypress Ridge to ensure that the City’s “institutional memory” is memorialized once and for all.
He noted that his position was supported by the Marin Sierra Club, the Marin Conservation League, California Native Plants Society, Marin Audubon, Wildcare, and Allen Fish, director of the Golden Gate Raptor Observatory – most of which had representatives who spoke at the hearing in support of the preservation of Cypress Ridge, in perpetuity.
Finally, he said that he had contacted the State Department of Housing and Community Development (HCD), through a “state legislator’s aid,” and was told unequivocally that “if a site is zoned open space or if it has a conservation easement on it, then it should not be identified as a RHNA housing site.”
William Monnet, president of Open Space Sausalito, spoke about the importance of Cypress Ridge for migrating birds of prey; whose numbers at certain times of the year exceeded 40,000 birds. These included bald eagles, peregrine falcons, and a total of 19 species that are protected by the Federal Migratory Bird Treaty Act.
Mr. Monnet affirmed that the City Council had no authority to overrule Measure E and he also urged the Council to enact a conservation easement for Cypress Ridge to further codify the City’s institutional memory.
In an attempt to get to the bottom of what was going on, speaker Linda Pfeifer, Secretary of Open Space Sausalito and a former City Council member asked, pointedly,
“If the City has any evidence that overrides, contradicts, or nullifies this ballot measure, the public has a right to know, right now.”
The City Council and staff responded with blank faces.
Other speakers echoed the sentiments expressed, above, including resident Carolyn Revelle who pointed out that placing housing at Cypress Ridge would be contrary to all the state’s housing policies, which direct cities to locate affordable housing near public transit, public services, shopping, and jobs, to be less dependent on cars, and certainly not in the high fire hazard, wildlands urban interface (WUI).
The discussion came back to Council
Mayor Kellman opened this portion of the discussion by backpedaling on her initial rezoning for housing stance but made the strange assertion that the final determination about Cypress Ridge "rested with the City Council." Perhaps, she was referring to a decision about whether or not to create a new conservation easement for Cypress Ridge? Hard to say, again, because the Council discussed Measure E and conservation easements interchangeably to the point that the public was often unsure which they were referring to.
Councilmember Melissa Blaustein--who had specifically voted against this discussion being on the agenda (at the February 8th City Council hearing) and had, instead, wanted discussion of the Cypress Ridge parcels sent to the Housing Element Committee for consideration for development and put on the opportunity site list--made a 180 degree U-turn and this time appeared supportive of a hands-off Cypress Ridge policy and wanted to know more about conservation easements, in general. It was hard to tell if she clearly understood the veracity of the protections Cypress Ridge already had under Measure E.
Councilmember Cleveland Knowles who had also voted against this discussion item being on the agenda (at the February 8th City Council meeting) and had, instead, wanted it sent to the Housing Element Committee for consideration for development and put on the opportunity site list, also did a 180 degree U-turn and emphatically stated that Cypress Ridge was "not on the Housing Element opportunity site list" and should not be included. In fact, she even pretended that this had always been her position, which was completely false because at the February 8th hearing she was the one who had adamantly argued that Cypress Ridge was eligible for development and that it belonged on opportunity site list and should be studied by the Housing Element Advisory Committee for housing. At that hearing, she also blatantly dismissed the veracity of ballot Measure E and its wording (noted above), saying it was "only about funding." (not about preserving open space)
She equivocated a bit at the end of her comments, characterizing future housing at Cypress Ridge as being “not likely,” but ended by saying Cypress Ridge was off the table in the current Housing Element process.
Based on her comments, it would be reasonable to assume that no one really knows what position councilmember Cleveland-Knowles might take on Cypress Ridge in the future, since her memory seems pliable.
Councilmember Ian Sobieski wanted to know more about how the City Council might be able to override Measure E, though his intention in asking seemed more due to curiosity than any nefarious intent. He professed great love for open space and for preserving other parts of the city but criticized the Housing Element process, saying that a more comprehensive approach to city planning was needed (“design” as he referred to it).
He also wondered if the public’s request for a Cypress Ridge conservation easement was an admission that there was some legal weakness in Measure E’s protection of Cypress Ridge, and wondered what that might be. Then he wandered off into a somewhat incomprehensible ramble about violating the “Rule Against Perpetuities,” which is a legal principle associated with wills, trusts, inheritance, and probate of estates, not public land preservation, and deals with the “vesting” date limits of land inherited via personal trusts.
Councilmember Jill Hoffman urged fellow councilmembers to all agree that Cypress Ridge was off-limits for Housing Element opportunity site consideration. And she also wanted to know more about conservation easements and how they work, and like Mayor Kellman, wondered if there was a legal basis for changing the use of Cypress Ridge, despite Measure E.
When it came back around to Mayor Kellman, she seemed to pivot from her original line of questions and suggested that the Council vote to affirm a “public policy” stating that Cypress Ridge was preserved open space. Councilmember Cleveland Knowles correctly reminded her that such a vote could not be taken because it was not on the agenda, and as such, would constitute a violation of the Brown Act.
Cleveland-Knowles then finally acknowledged that Measure E already protected Cypress Ridge as open space and that a conservation easement on top of that would perhaps be for the sake of memorializing institutional memory so the Council wouldn’t have to go through this exercise again, in the future.
One thing that was clear was that the City of Sausalito has a problem with its institutional memory; something that is not uncommon among Marin's small cities and towns. And although the additional protections and benefits of a land trust for Cypress Ridge might be a “belt and suspenders” assurance, it might be a wise thing to do, considering the city’s repeated failures to remember what it’s done before.
Coda
It was clear that the majority of residents in attendance wanted the Council to take Cypress Ridge off the table for future Housing Element or rezoning consideration, permanently and forever. In the face of that, it seemed curious that in the first part of the hearing, Mayor Janelle Kellman seemed to cling to a need to “study the issue” more. It had already been studied several times before. For example, from 2009 to 2011, the City wasted considerable time and taxpayer funds “studying” the issue, which resulted in dropping the whole idea for the very reasons noted in this article.
Perhaps, Mayor Kellman’s initial position was influenced by the voices of certain stakeholder groups in Sausalito, (who shall remain nameless) whose support she enjoys, and who are currently pushing hard for the development of “hundreds” of units of high-density housing on Cypress Ridge, to satisfy the City’s Regional Housing Needs Allocation (RHNA) quota in exchange for a promise of limited development in their own area of town?
In any event, all’s well and that ends well, as they say, though community vigilance and monitoring the Housing Element process, closely, would seem extremely advisable.
CLICK HERE TO WATCH a video of the February 15, 2022, City Council hearing.
[1] It should be acknowledged that there is disagreement about whether a government agency can grant a conservation easement on its own land. The Sausalito City Attorney suggested it could not while private counsel has suggested it could under certain circumstances. CVP is investigating this and will report any findings.
[2] e.g., the Grant Deed to my home in Mill Valley reads, "For a valuable consideration, receipt of which is hereby acknowledged, [Seller’s name] hereby grants to [My name] the real property in the city of Mill Valley, County of Marin, State of California, legal description attached hereto and made part thereof.” The legal description is a simple metes and bounds description.
[3] Testimony of Jim Richard of Open Space Sausalito.
Bob Silvestri is a Marin County resident, the Editor of the Marin Post, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.