Courting a Dream : 20-Year Fight to Build Tiburon Home Not Over Yet

Times Staff Writer

Nearly 20 years ago, Donald and Bonnie Agins bought a hilltop lot in this scenic and affluent community, planning to raise a family and build a dream home with a spectacular view of San Francisco Bay.

Today, as the youngest of their five children prepares to enter college, the lot is still empty and the Agins can only hope that a long and costly legal fight for permission to build on their five-acre property is nearing an end.

Over the years they have been challenging a series of governmental actions, ranging from zoning regulations to building moratoriums, that they contend have unfairly denied them the reasonable use of their property. They say the actions represented a "taking" of property, without compensation, that is barred by the Fifth Amendment.

The Agins lost a widely followed California Supreme Court case in 1979. Then last spring, the U.S. Supreme Court issued a landmark ruling in another case that overturned the 1979 California decision and opened the way for property owners to collect damages when government goes too far in restricting the use of their land. Ordinarily, compensation is required only when government condemns a property for public use.

Another recent ruling by a Marin County Superior Court judge overturned a building moratorium that had imposed the latest barrier to the Agins' plan to build a home on one parcel and sell the rest of the land for two other residences.

The Agins are pleased with the two recent decisions. But long experience with courts, lawyers and regulators has taught the couple to be cautious in claiming victory. After all these years, they're still in court.

"We're exhausted," said Donald Agins, a 53-year old dentist in nearby San Anselmo, as he walked slowly over his vacant property last week. "Just when you think you see the end, something new comes up. There's always a legal battle going on."

Bonnie Agins, although welcoming the two new court actions, laments the loss of the years the family might have enjoyed had they been allowed to build their home.

"With our youngest going off to the University (of Arizona), the dream we had once has gone out the window," she said. "We feel we were robbed.

"There was concern here that if they didn't maintain open space, Tiburon would end up looking like Hong Kong," she recalled. "I can appreciate that. That's one of the reasons we were attracted to Tiburon in the first place. But if they wanted (the land), why not just buy it, instead of trying to achieve the same thing in an indirect way?"

While the couple still press their right to build, they unhappily acknowledge that they may never live on the site.

$50,000 Lot

"The long delays, the expensive improvements required beforehand and the building moratorium all have interfered with the sale of the other lots," said Timothy A. Bittle, an attorney for the Pacific Legal Foundation, which represents the Agins. "It's affected them financially to the point where they're not sure they'll be able to build."

The Agins' saga began in 1968, when they purchased the five-acre tract for $50,000. In 1974, Tiburon, in the wake of concern over preserving scenic open space in the community, enacted zoning rules that limited development on the Agins' property to no more than five homes. The Agins sued for $2 million in damages, contending that the zoning action effectively destroyed the value of their property.

The California Supreme Court ruled for the city in 1979, saying that although property holders were free to seek invalidation of zoning laws, they could not collect damages for governmental restrictions on land.

The next year, the U.S. Supreme Court, reviewing the Agins' appeal, upheld Tiburon's zoning restrictions. The justices avoided the question of damages on the grounds that the couple had not yet applied for permission to develop the property and thus had not been denied any rights.

The Agins went back to the City Council and asked for permission to subdivide the parcel into five lots. After two years of public hearings, the city decided to permit three lots. As a condition of approval, the city told the Agins they must provide for a hiking trail through the property, finance a road to the site, file an environmental impact report, make studies of traffic and soils in the area and pay a number of inspection, utility and other fees.

Construction Moratorium

The couple met the requirements at a cost of more than $560,000 and finished making the improvements in August, 1985. A few weeks later, the City Council adopted a communitywide moratorium on new construction, then passed two extensions of the measure, extending the ban into January, 1987. An initiative passed by the voters in 1986 further extended the moratorium to April, 1988. Last spring, a proposal to exempt single-family subdivisions from the moratorium was turned down by the electorate.

Since then, however, the legal breaks appear to have gone the Agins' way. The U.S. Supreme Court, ruling in June in a case involving a Glendale church, held that property owners may receive compensation when governmental regulations deny them reasonable use of their land.

Pacific Legal Foundation attorneys had filed a "friend of the court" brief in the case for the Agins, urging the court to use the Glendale case to overturn the 1980 California decision that had barred them the right to seek damages.

The court did so in a 6-3 decision written by Chief Justice William H. Rehnquist.

"Government action that works a taking of property rights necessarily implicates the constitutional obligation to pay just compensation," Rehnquist said. The Fifth Amendment, he added, "is designed to bar 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."

Tiburon Lawsuit

Meanwhile, in Marin County, the Agins and other Tiburon property owners had brought suit in Superior Court against the building moratorium, contending among other things that the city had denied them "all viable economic use of their property" in violation of the constitutional prohibition against a governmental "taking" of property without just compensation.

In mid-July, Judge Joseph G. Wilson ruled that the moratorium had been improperly extended beyond its legal limits and thus had been unenforceable as of Jan. 8 of this year. The judge did not decide whether the Agins and the other plaintiffs in the case were entitled to damages for a "taking" of their property.

The city has not yet decided whether to appeal Wilson's ruling. If the decision stands, the Agins and other property owners will be free to apply for building permits, city officials said.

In the meantime, attorneys for Tiburon and the plaintiffs have held what both sides say are preliminary discussions about the possibility of an out-of-court settlement of the case.

Bittle, the lawyer for Agins, said they will seek damages if the city appeals Wilson's ruling. "The U.S. Supreme Court has held that even a temporary delay in use of property is compensable," said Bittle. "The Agins have been unable to build for a very long time."

The attorney for Tiburon, Gary T. Ragghianti, makes no concessions. "We believe the judge's ruling was wrong, and we're examining all our options, including an appeal," he said.

'No Application'

Ragghianti also takes the position that the U.S. Supreme Court's decision does not open the way for the Agins and the other property owners to collect damages. "That ruling has absolutely no application to this case," he said.

Environmentalists specializing in land use say the attorney may be right.

"People like the Agins are likely to have a very hard time proving that a 'taking' of their property occurred," said Larry Orman, executive director of People for Open Space/Greenbelt Congress, a San Francisco-based citizens' planning group. "The court was very unspecific about what conditions must exist before such a claim can be made. Nothing in the case, for example, says specifically whether a building moratorium is a 'taking'."

Orman noted that the high court once again indicated its approval of legitimate governmental regulations to control growth and preserve open space. A building moratorium that is imposed only long enough to give communities enough time to plan appears to be safe from damage suits, he said.

Nor did the court indicate how damages would be calculated if a city is found liable, Orman added.

"At this point, we don't see the Supreme Court ruling yet having a big, long-term effect," said Orman. "There may be a temporary surge of attorneys seeking a pot of gold, however."

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