Pacificans value our natural vistas, both the sea and green open space. Our City has a history of actively preserving open space on hillsides and ridgelines, while allowing development along the coast and into the valleys. Recently it seems development projects are increasingly in controversial parcels in these precious and risky areas. Risky? Yes. Not only are our hills an esthetic part of our city’s character, they have higher risks of wildfire and landslides, and are more difficult and expensive to maintain and to provide municipal services. Indeed, expenses related to residential development consistently exceed the increased taxes (note 1) a city receives.
These parcels are being targeted now precisely because they are less suitable. Increasingly, because of our historical commitment to protecting these areas, these areas are all that is left!
Now is an important time
• Our 1980 General Plan is being updated (note 2), including elements of environmental protection and public safety and a new Local Coastal Plan (note 3).
• There is active public discussion about our Hillside Preservation District ordinance (HPD) (note 4) which is a fundamental part of the City’s regulatory authority to manage development projects on hillsides and ridges. Enacted in 1972, it begins: “It is the intent of the Hillside Preservation District to place special controls on any proposed development, public or private, within hillside areas of the City…”.
• Our Growth Management Ordinance, (note 5) which requires lands zoned Agriculture or Hillside Preservation District not be rezoned without a public vote, is up for its next 5 year renewal.
These are all complicated topics. Public education, engagement, and even activism is going to be required to ensure these historic protections are maintained – or even strengthened – rather than weakened.
The Importance of the Coverage Controls in the HPD
Despite requests by the public, by Planning Commissioners and by City Councilmembers, the city has declined to hold a public forum to discuss the intent and its interpretation of the HPD ordinance. In September it did release an HPD Fact Sheet (note 6). While helpful, the points chosen for emphasis minimize some concerns expressed by the public.
Let’s look in detail at an especially critical part of the HPD, and explore how it relates to the expressed overall intent of the law. One section limits the area that may be disturbed by a project and it does this with some important details.
The Land Coverage Control section (Sec. 9-4.2257) specifies the “maximum allowable land coverage for any development” proposed within the protected areas defined by an overlay map included over the city area as part of the ordinance.
A formula is given so the intent of the law can be applied quantitatively to specific proposals, but a graph shows it more clearly. (refer to the graph shown below) The area that may be affected by the project is reduced depending on the steepness, defined as the average natural slope in percent. A 30% slope is a rise of 30 feet along a horizontal run of 100 feet, which is the same as 17°. Looking at the graph, a parcel with an average slope of 30% can disturb no more than about 15% of the area. Low slopes can impact a max of 40%. Now for the important details:
1. The graph sets the maximum fraction of the parcel allowed. According to the HPD, this includes all disturbance, not just the footprint of the dwelling(s).
2. This maximum is intended only for “outstanding and innovative” projects. Lesser plans may be awarded less usable coverage.
3. Application of this rule is to be “in such a manner so as not to be confiscatory”.
So a developer should expect to be allowed to use even the limited area only with exemplary plans that meet the intent and guidelines of the HPD. And what about this curious phrase, “not to be confiscatory”? Here the HPD law is alluding to an important principle based in the 5th Amendment to the U.S. Constitution. Known as Takings Law, it began with a U.S. Supreme Court ruling by Chief Justice Oliver Wendell Holmes in Pennsylvania Coal v. Mahon (1922 (note 7): “The general rule, at least, is that, if regulation goes too far, it will be recognized as a taking for which compensation must be paid.” HPD must be implemented such that it does not confiscate the owner’s property or the City can be forced to back off or to pay fair compensation. The City has recently cited more than once the risk of a Takings lawsuit as justification for approving projects that appear to be prohibited by one or another statute. The new HPD fact Sheet explains– even emphasizes – this consideration, as well as the option of using a planning “variance” to allow projects to be approved that do not conform (see HPD Fact Sheet p. 2 Q&A (note 6).
This concern is real, but it is not a threat that suggests we must accept all proposals that miss the letter or the intent of the HPD. Even Justice Holmes was clear that a law must “go too far” to be unconstitutional. We must understand what justifications are possible for Pacifica to be able to enforce the Coverage Controls that limit the owner’s fair use of land.
Legitimate Justifications Against a Takings claim
There are many wrinkles that shape Takings law. Experts I consulted for this article tell me that as a result no case is a slam dunk. Each case depends on the specifics, and it turns out Pacifica and the HPD have several good options. My goal here is to offer some examples of arguments that may be open to cities to defend their decisions. For dedicated readers, there are links to some legal precedents. Start here (note 8) for an overview.
Our concern is Regulatory Taking, not physical taking as with seizure by Eminent Domain. Regulatory Takings can be Total or Partial. A Total Taking is when no productive or economical use of the land is permitted. An example would be to require the land be left it its natural state. More often, Pacifica might be accused of a Partial Taking, (note 9) which results in anything less than a total loss of value.
• The Supreme Court specifically looks to whether the regulatory action affects the landowner’s “reasonable investment-backed expectations.” (note 10) Note the importance of “reasonable” vs the actual expectations. Regulation is not a Taking if the action leaves the owner reasonable options for some value, even if it falls short of the owner’s imagined goals. For example, if Pacifica suggests and approves a modified plan that brings a proposal into closer compliance with HPD law, it is not a Taking. That’s sensible: the owner has a choice whether to accept the modification or not.
• Another potential defense is that the City must balance public benefits against private expectations. A modified plan may not be a partial Taking if the city cites substantial hazards to be borne by the City as a result, like fire or earthquake risk. CEQA review may reveal this & justify when it applies. Compare this situation to an accepted statement of the purpose of the Takings clause: “To prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (Armstrong v. United States (1960)) (note 11). For the city to be forced to bear a risk caused by a private development in violation of our ordinance seems to be the opposite of this definition of Taking.
More directly, “there are numerous instances where courts have reasonably concluded that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land. And in this context the Supreme Court has repeatedly upheld land-use regulations that adversely affected recognized real property interest.8”
• Another consideration is whether the owner’s expectation should have been altered if they acquired the land after the regulation was established. This point has been especially contentious and it depends on other details. But in some cases (note 12) the “investment backed expectations” of an owner were found to be affected downward by restrictions in place when the land was acquired. This precludes a finding of a Taking for some proposals.
How Do These Options Change Things?
Consider this scenario: Faced with an application for development in the HPD zone that is not in complete compliance, suppose the city proposes modifications to the plan bringing it closer to compliance. In some cases this might involve a variance, in others this might not. If the Planning Commission and Council approve the modified plan, it is unlikely to be subject to a Takings claim. The developer is free to take the approved option or walk away. This scenario has worked in Pacifica – a modified plan went forward in Connemara on Milagra Ridge(2006), at 801 Fassler(2007), and at 200 Berendos(2008). For Connemara, the plaintiffs lost a Takings lawsuit and then chose to go ahead with the approved project.
Further, the risk of a Takings lawsuit is minimal for a large development on land covered by HPD land, even if major modifications are required by the city (e.g. a proposal for many residences reduced to a few – even one – placed in a suitable part of the parcel (see Palazzolo v. RI) (note 13).
Perhaps the mention of “confiscatory” in the HPD ordinance was not to warn of a threat, but to encourage creative responses to guide projects toward compliance? Indeed, one stated intent at the beginning of the HPD says as much: “(d) Encourage innovative design solutions.”
It seems clear that Pacifica can use the HPD Coverage Controls without fear of a Takings lawsuit if it works within legal precedent. There are a number of well established defenses. Indeed, Takings suits against longstanding municipal authority are rarely successful.
Caveat: I am not a lawyer, and I don’t play one on TV. If there are errors here, or if I have missed subtleties, I hope the sense of the overall argument is still valid.
Tip: To find the relevant part in these links, search in the webpage for the linked key words.
6 https://www.cityofpacifica.org/documents/09-08-2021 HPD FACT SHEET.pdf