Notwithstanding recent CEQA developments, California municipalities still have significant control on conditioning when and how housing can be built. For example, where there remains legitimate government interest in regulating land use (e.g., maintaining agricultural land), imposing restrictions on housing development is fair game.
On August 29, 2025, in Benedetti v. County of Marin, 113 Cal.App.5th 1185, California's First District Court of Appeal upheld Marin County's restrictive covenant requirements in the county's designated "coastal agricultural production zone," ("C-APZ") before issuing necessary permits.
Marin County authorizes certain residential development in the C-APZ under the Local Coastal Program, which requires that any new residential development also include restrictive covenants mandating residents be "actively and directly engaged in agricultural use," typical by either directly engaging in agricultural or leasing the subject land to agricultural producers. In Benedetti, landowners sought to build a new, additional residence without agreeing to and recording the necessary restrictions.
The case focused on Marin County's Local Coastal Program (LCP), which governs development in the county's "coastal agricultural production zone," last amended in 2019, to prevent "incursion of non-agricultural uses" while balancing the need for, particularly, farmworker housing. Accordingly, under the operative LCP, property owners can build new residential units in this zone only if they agree to restrictions requiring the property's residents to be "actively and directly engaged in agricultural use." That means either running a commercial agricultural operation themselves or leasing the land to a legitimate agricultural producer. In effect, this restrictive covenant requirement prevents future subdivision of lots containing new residential units, except for agricultural leases and uses.
In Benedetti, property owners in the C-APZ sought to build an additional residence without accepting the LCP's mandatory restrictions. In challenging the imposition of the restrictive covenant, the Benedetti family argued that the LCP, violated constitutional protections against improper government conditions on land use, specifically the (now longstanding) framework set out in the seminal Nollan and Dolan takings cases from the U.S. Supreme Court.1 Specifically, the Benedetti's argued that the county's covenant requirement did not include a sufficient connection (the "nexus test") and was not properly balanced (the "proportionality test") with the County's policy (and attendant police authority) to preserve farmland. Additionally, the Benedetti's raised an oblique challenge to the LCP, arguing that it interfered with their right to choose their profession, and instead would force them to participate in farming activities.
The trial court rejected the Benedetti's claims, on the basis that Nollan and Dolan preclude a facial challenge to an ordinance, and require, essentially, an "as-applied" challenge. The court of appeal overruled the trial court on this point, and found that a facial challenge is allowed under the Nollan/Dolan framework, consistent with more recent Supreme Court jurisprudence in Sheetz v. County of El Dorado, 601 U.S. 267 (2024) (holding, inter alia, that the Takings Clause "does not distinguish between legislative and [ad hoc] administrative permit conditions.")
While the Benedettis could bring their challenge, the Court of Appeal ultimately upheld Marin County's use of restrictive covenants to balance agricultural preservation and necessary housing development. Specifically, the court held that the requirement demonstrably and clearly satisfied the "nexus test," based on the application to prevent conversion of agricultural land to residential use. The Court also found that the restrictive covenant provisions were roughly proportionate to the legitimate goals of balancing farmland preservation and the need to provide adequate housing. Put simply, even small housing developments where unrelated to primarily agricultural use, present the risk of creating a Swiss cheese of land uses, reducing agricultural production and encouraging residential encroachment into agricultural zones.
Takeaways
Following the Court of the Appeal's decision, land use attorneys, property owners, and property developers have additional data points in understanding where land use regulation may run afoul of the Takings Clause. First, the holding reaffirms the proposition that facial challenges to zoning laws are possible but will likely require significant legislative overreach to succeed. Not only must a zoning condition be unrelated or disproportionate to a specific example, it must also be broadly unrelated and disproportionate. Put simply, an "as-applied" challenge will generally stand a better chance of success. Second, and notwithstanding California's continued efforts to promote housing development, such development does not override other, legitimate land use controls or policies, including the preservation of agricultural land or other, necessary land uses.
Footnote
1 Nollan v. California Coastal Commission (1987) 483 U.S. 825 ("Nollan") and Dolan v. City of Tigard (1994) 512 U.S. 374.
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