In the beginning there was the general plan.
This is an overstatement of Dan Curtin’s world view, but not by much. The dean of California land use lawyers, who died a few weeks ago at age 73, was an almost priestly man of faith who believed in God, the rule of law, and the process of land use planning.
Over the past 25 years, other land use lawyers in California had busy practices and a few even had more appellate cases under their belt. But no one else had Curtin’s gravity – his deep respect for the law, his firm grasp of the overall land use planning process, his unassailable sense of authority. Much of his outsized reputation came from his authorship of Curtin’s California Land Use and Planning Law, the flagship title at Solano Press Books. (Note: Solano Press also publishes Guide to California Planning, written by yours truly and Paul Shigley, editor of this publication.) But ultimately, Curtin’s legacy is not really the book, or the endless conferences and lectures he enjoyed providing, or the two generations of land use lawyers he so lovingly mentored. In legal terms, his real legacy is the general plan.
When Curtin began his career in municipal law during the 1960s, the general plan was a thin, semi-optional advisory document that some cities took seriously and others didn’t. By the time Dan died, it was – as he so often said – the “constitution for the future development of a community.” This transformation occurred in large part because Dan himself made it happen – and especially because Dan won the most important case of his career. It was a case that Dan spent his whole career preparing to litigate, and no novelist could have crafted a better story.
Although Curtin was courtly in an old-school lawyerly way, he did not come from a silk-stocking background. He was San Francisco Irish Catholic through and through. Curtin grew up in the Sunset District to Irish immigrant parents during the 1940s. As a boy he went to seminary. His sister became a nun and one of his best friends from seminary – a longtime priest – officiated at his funeral in Walnut Creek. True to form, he went to both college and law school at the University of San Francisco, a respected Catholic institution.
Curtin served in the Army during the late ’50s but quickly moved into government law. He worked on the legislative staff in Sacramento for two years – this was during the speakership of Ralph M. Brown, for whom the Brown Act is named – and then went into local government. In Richmond, he was the assistant city attorney for four years. In 1965, he became city attorney of Walnut Creek at age 32. He held the job for 17 years – essentially, from the end of Pat Brown’s administration to the end of Jerry Brown’s administration.
This turned out to be perfect timing for a smart, young municipal lawyer interested in land use. California was in the midst of a vast postwar suburban growth boom that was sweeping into outer suburbs. During the ’60s, Walnut Creek grew from 9,000 to 39,000 people and in the 1970s expanded again to 54,000 people. Curtin’s tenure as city attorney straddled the Petaluma growth management case, the passage of the California Environmental Quality Act and the major general plan law revisions of 1971, theFriends of Mammoth CEQA case, the Avco Community Builders case that created the state’s “late vesting” rule, the passage of the development agreement law, the first major revision of redevelopment law, and three California Supreme Court rulings in the late ’70s that opened the floodgates for ballot-box zoning.
To put it bluntly: When Dan Curtin became Walnut Creek’s city attorney in 1965, there was really no such thing as a land use lawyer. When he left in 1982, there were hundreds of them – and Dan was their guru.
He became the guru for two reasons. The first was his unflagging willingness to lecture on the latest developments in land use law to practically anybody who would listen – a sideline that eventually led to the publication of his book. The second was his deep and heartwarming desire to mentor young land use lawyers and planners, which influenced two generations of practitioners throughout California.
Curtin began doing land use law updates in various venues in 1973 – just when land use law was emerging as a complicated specialty – and soon became the hit of the UC Extension circuit, giving updates and lectures all over the state constantly. Eventually, he turned his standard binder into Curtin’s Guide, now in its 27th edition.
At the podium he often seemed professorial, but in retrospect a better description might be priestly. Curtin’s Irish Catholic background gave him great reverence for authority and he conveyed that reverence in a straightforward and unvarnished way. When discussing an appellate court ruling, he rarely identified the individual court that issued the decision or the individual justice who wrote it. He simply stated: “The court said …” To Dan, it didn’t really matter which court or which justice – even if it was somebody who used to work for him. The court’s imprimatur was enough for him. He was only delivering the message from on high.
And the core of the message was primacy of the general plan. The most significant legal revision occurred in 1971, when the state created the consistency requirement – meaning the general plan must be internally consistent and that other planning documents, such as the zoning ordinance, must be consistent with the plan As Dan pointed out on page 8 of his book – quoting several appellate cases – this change transformed the general plan from “an interesting study” to “the basic land use charter that embodies fundamental land use decisions and governs the direction of future land use in a city’s jurisdiction.” For someone steeped so deeply in Roman Catholic doctrine, the clarity of this act seemed both appealing and reassuring. So Dan saw it as his mission to spread the word about the general plan.
In 1982, shortly after publishing Curtin’s Guide for the first time, Dan left the City of Walnut Creek and went into private practice with his friend Sanford Skaggs, an eminent domain lawyer who had been on the City Council in Walnut Creek during the ’70s. Van Voorhis & Skaggs soon became one of the leading land use firms in the state – so attractive that during the rash of law firm mergers in the 1980s, it was bought out by the great San Francisco firm of McCutchen, Doyle, Brown & Enersen, now known as Bingham McCutchen.
The hurly-burly of daily legal practice required Curtin’s shop to take all kinds of cases. Inevitably, he often represented developers in private practice, which sometimes left him open to criticism, especially from citizen groups and environmentalists who believed he had sold out. But because of his reputation, he could – on significant cases – pick his spots. It’s true that most of his important appellate work involved representing developers. But each case was framed around defending a fundamental principle of the general plan. In this way he always managed to stay above the fray. This was true in all of his major cases – especially the most important one.
After Curtin left the city attorney’s office, Walnut Creek fell into a divisive battle over growth typical of suburban cities in the 1980s. During this period, the city was experiencing second-generation growth – the arrival of BART and I-680, the construction of large office buildings, and so forth. This political fight culminated in 1985 with the passage of Measure H, a citizen-backed initiative that imposed a development moratorium if traffic standards were not met.
The crusty Dean Lesher, owner of the Contra Costa Times and a major landowner in Walnut Creek, decided to challenge the initiative in court and asked Skaggs, Curtin, and their associate Maria Rivera (now an appellate court judge) to represent him. The line of attack was, inevitably, the general plan, which Skaggs and Curtin had been largely responsible for writing in the ’70s. The development restrictions of Measure H seemed to conflict with the general plan, which called for strengthening Walnut Creek’s position as a regional commercial center. To Dan, this was a violation of the 11th Commandment: Thou shalt not be inconsistent with the general plan.
Even worse, it wasn’t clear what Measure H was. Was it a general plan amendment? A zoning ordinance? Nowhere in the initiative was this spelled out – which surely offended Curtin’s finely developed sense of order and authority.
So, in the case, Curtin and his associates had to make several important and seemingly difficult arguments. First, Measure H was a zoning ordinance. Second, it was inconsistent with the General Plan. Third, and perhaps most difficult, was the argument that state general plan law trumped the initiative process – a tough trick under the California constitution, which is extremely deferential to citizen initiatives.
Curtin won in Contra Costa County Superior Court, but he lost at the First District Court of Appeal, which ruled that Measure H was a general plan amendment. He turned it around at the California Supreme Court, where Justice David Eagleson concluded in a New Year’s Eve ruling that because of its “self-executing” nature, Measure H was a zoning ordinance and therefore inconsistent with the general plan. Only the ornery Justice Stanley Mosk dissented. (Lesher Communications Inc. v. City of Walnut Creek, 52 Cal.3d 531 (1990)). “The tail does not wag the dog,” Eagleson wrote – quoting Curtin himself.
Not every lawyer could have looked graceful and measured in the process of challenging a citizen initiative in his own city by invoking a general plan he had helped write on behalf of a curmudgeon that a lot of people in town didn’t like. But Dan maintained almost everybody’s respect in the process. The case also cemented the primacy of his beloved general plan. As Dan wrote in his Guide, according to Lesher, “any subordinate land use action, such as a zoning ordinance, tentative map, or development agreement, that is not consistent with a city’s current and legally adequate general plan is [quoting the Supreme Court] ‘invalid at the time it is passed.’” Even, as Dan took pains to point out, if the action was passed by initiative.
I can’t think of a single book that contains such a compelling story of being outcast, then redeemed in a way that changed the world so profoundly. Dan, being a devout Roman Catholic, could probably think of at least one.
It wasn’t obvious at the time, but the Lesher era was a watershed time in California land use law. Not only did the Supreme Court affirm the significance of the general plan in that case, but in a second case issued on the same day the Court reined in the use of CEQA to block projects (Citizens of Goleta Valley v. Board of Supervisors, 52 Cal. 3d 553). In Goleta Valley, the Supreme Court also went out of its way to reaffirm the primacy of the general plan. New Year’s Eve 1990 was the first and only time that the California Supreme Court stated unequivocally that the general plan is superior to all other land use documents. It was Dan’s day.
After these two cases, typical craziness went on in the world of California land use – rampant initiatives and lawsuits, use, misuse and abuse of both the general plan law and CEQA. But the craziness was tempered by an overarching respect for the general plan as a community’s constitution. And that shift – along with his mentoring of hundreds of lawyers and planners who share this respect – may be Dan’s real legacy.
In the beginning, maybe there wasn’t the general plan. But in the end, there was the general plan – thanks mostly to Dan Curtin.
