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Open Space Sausalito
Cypress Ridge - Sausalito City Council Confusion
In reference to the discussion about Cypress Ridge in Sausalito, you would think that a former land-use attorney and a former municipal law attorney would have some rudimentary knowledge of how conservation easements (CE) and ballot measures work. No such luck with Sausalito City Council members though. That said, some of the advocates also appeared confused. And the guy who spoke about the rule against perpetuities in a municipal real property/land use context? Huh?
First, a city council cannot overturn a ballot initiative. In Rossi v. Brown (1995) 9 Cal.4th 688, 711, the California Supreme Court noted that in construing the rights of voters, courts will begin with "the established principle that all reasonable doubts must be resolved in favor of the people's exercise of the reserved initiative power.”
Second, once you itemize a taxpayer spending item on a ballot measure, a municipality cannot substitute another project or use of funds not on the ballot measure. By converting or adding to a single item - buy Cypress Ridge for open space - the Council was doing just that. That is, the Council was suggesting that it is not limited to the specific and only use identified on a ballot measure but could spend specific taxpayer-directed money on anything it chooses. That is obvious defiance of rules of statutory construction about the plain reading of statutes and in conflict with election law, which is that if you list an item, you cannot spend money on other items. See generally Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735.
Third, a conservation easement is not an entitlement, land use designation, or city policy.
Instead, a conservation easement is a real property interest granted/sold by one entity or person to another that burdens the original property. Can an entity grant itself a property right such as an easement? I don’t see how. Similarly, one cannot give oneself a parcel or restrict one's own property use.
Perhaps a voluntary deed restriction is a legal theory that may apply. But again, the City could unilaterally reverse or excise such a deed restriction because there is no contract. This is because there would be no "consideration" provided to another party. This factor would probably invalidate the deed restriction.
Agencies deal with this issue all the time and as Bob Silvestri points out, the mechanism is a sale of the property to a land trust with a contract provision for a CE to be placed on the title.
I am not a specialist in this area but this aspect is CE 101 for land use and municipal law attorneys. The three confused Council members and apparently befuddled City Attorney need to consult someone with expertise on this issue, such as those at the Trust for Public Land. If not this sounds like recalled SF Education Board politicians opining about U.S. history to each other.
Edward Yates is an attorney specializing in environmental and government transparency law, in San Francisco. Contact: eyates@marinlandlaw.com