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Mill Valley Patch
This blog is a reprint of my letter to the Board of Supervisors. It details the historical reasons for rescinding the Seminary Affordable Housing Combining District (AH) in Strawberry, and it warns about the broader implications of the potential imposition of the insidious AH on other residential areas throughout the County.
Re: Board of Supervisors Hearing: Affordable Housing Combining District, July 21, 2015
The Affordable Housing Combining District (AH) must be removed from the Seminary property in Strawberry because the Seminary AH does not comply with draft Ordinance, Section 1, Finding IX. (Please see Staff Report, draft Ordinance, p. 8.)
Development of the Seminary is codified in Ordinance 2819, which the Board of Supervisors (BOS) approved in 1984. Unlike the St. Vincent/Silveira AH and the Marin City AH, the Seminary has a fully vested Master Plan which is partially completed. The remaining housing entitlements allow the development of 93 units of student and faculty housing for religious educational use only. Prior to approval of Ordinance 2819, County Counsel supported Planning Staff’s recommendation that student and faculty housing units were deemed to be “specialized units” which would not be counted as “adding to or satisfying the inclusionary housing requirement.” As a result, these “specialized units” of student and faculty housing are not interchangeable with units of affordable housing. All stakeholders, including low income housing advocates, citizens of Strawberry, County planners, Planning Commissioners, and Supervisors accepted Counsel’s determination, and BOS approved and adopted it in Ordinance 2819.
By 1997, the inclusionary housing requirement had risen from 10 % to 15%, and low income housing advocates wanted the new rate to apply to development of the Seminary property, but County Counsel opined that only new projects should be subjected to current Marin County Code. Counsel specifically advised that the Seminary property was an already existing project, not a new project, so new development code requirements would not apply to the Seminary. Once again, all stakeholders accepted this determination, and the Planning Commission approved and adopted it in the Precise Development Plan Amendment dated March 1997.
County Counsel’s determinations were not merely abstract pronouncements to be ignored at will because the record shows that County planners enforced them and developers were required to incorporate them into their projects. Subsequently, by the end of 1997, all of the inclusionary housing requirements for the entire project had been satisfied by market rate development, including requirements for everything already built and everything remaining to be built.
The exact same precedent applies here because AH is a new development code, also involving inclusionary or low income housing, that BOS approved and adopted in 2013. As such, AH should not apply to the Seminary because it would amount to double taking. Given that all inclusionary housing requirements have been satisfied and AH does not apply, there is no additional capacity for inclusionary or low income housing on the Seminary property under the existing Master Plan. Therefore, BOS must rescind the Seminary AH.
The Argument Against the Seminary AH
In my opinion, based on the historical record of administrative laws of the County, you must remove the Affordable Housing Combining District (AH) from the Seminary property because AH does not comply with your proposed Ordinance, Section 1, Finding IX. (Please see Staff Report, draft Ordinance, p. 8.)
The 1982 Strawberry Community Plan, the 1984 Seminary Master Plan (Ordinance 2819), the religious educational land use designation for the Seminary, and other development entitlements do not permit AH because by 1997 all of the inclusionary housing requirements for the entire project had been satisfied, including requirements for everything already built and requirements for everything remaining to be built.
There is no provision, additional capacity, or authority for AH because it would amount to double taking.
The Historical Record
Let’s recount the evidence in the historical record.
The 1982 Strawberry Community Plan addresses the key goal of achieving housing balance as follows: “Development plan proposals should give the highest priority to incorporating detached single-family homes into the plan.” (p. 2)
The reason for this provision is that Strawberry’s housing stock was, and still is, grossly unbalanced. Today, 61% of our housing stock is comprised of rental units compared to only 37% for Marin County as a whole. Housing balance is critical for our community’s sustainability. When additional multi-family rental units are added to the mix, the tax burden for our public schools and other essential services increasingly falls on fewer and fewer home owners.
At the same time, the Strawberry Community Plan also expresses “support of the goal of achieving below market rate housing through application of the inclusionary zoning ordinance requirements.” It further stipulates that “in-lieu fees should be accepted if on-site inclusionary units are not economically feasible or otherwise desirable.” (p. 17)
In 1984, the Seminary applied for a Master Plan to develop its property. The plan consisted of two primary parts: 1.) the sale of 24 single-family lots and a plot of land for 36 condominiums for private development, and 2.) the development of the Seminary’s remaining campus, including 93 units of student and faculty housing and 6 large buildings.
Inclusionary housing was a major issue, and it was vetted roundly by all stakeholders. The inclusionary requirements at that time were 10% for housing units and 5% for lots.
The Seminary proposed calculating the inclusionary housing requirement by combining the 93 units of student and faculty housing and the 36 condominium units for a total of 129 units. This proposal would have resulted in 13 inclusionary housing units (129 x 10% = 12.8 rounded up). However, the Seminary also stipulated that it wanted final tenant selection authority for the inclusionary units, presumably to limit occupancy to low income seminary students only.
Planning staff rejected this proposal because it was not consistent with the intent of the inclusionary housing ordinance, which is to make occupancy of inclusionary housing open to all eligible applicants. Staff compared the Seminary’s proposal “to a developer using tenant selection authority to fill inclusionary housing units with friends or relatives.” (Staff Report to the Planning Commission, February 13, 1984, Item #7, page 3)
As an alternative, staff proposed calculating the inclusionary housing requirement by using the 36 market rate condominium units and the 24 market rate lots only. By comparison, this proposal resulted in only 4 inclusionary housing units and one inclusionary lot.
County Counsel's First Key Determination
The preeminent change under staff’s approach was that student and faculty housing units were deemed to be “specialized units” which would not be counted as “adding to or satisfying the inclusionary housing requirement.” (Ibid.) In other words, these “specialized” student and faculty units would be exempt from the calculation of inclusionary housing. Only the market rate units would be used in the calculation.
Most important, County Counsel reviewed and approved of staff’s proposal by opining that “(1) this interpretation can be made by the county, and (2) it is a far more logical one than the one proposed by the applicant.” (Ibid.)
Subsequently, on March 13, 1984, the Board of Supervisors adopted Ordinance 2819, the Seminary Master Plan. As a result of public discourse and compromise, the inclusionary housing requirement is codified in Section 1, Condition 2 as follows: “This requirement is based on the following calculation: 36 market rate condominiums x 10% = 3.6 units—rounded up to 4 units; and 24 market rate lots x 5% =1.2 lots—rounded down to 1 lot.” (Underlining within parentheses is mine for emphasis.)
As Condition 2 makes crystal clear, the calculation of inclusionary requirements was based on market rate condominiums and market rate lots only. As expected, student and faculty housing, i.e., “specialized units,” were excluded from the calculation.
Furthermore, Condition 2 establishes the total inclusionary requirements for the entire Master Plan development. There is no other provision for any additional inclusionary housing in Ordinance 2819 because the only remaining housing entitlements are student and faculty housing, which are “specialized units” that neither add to nor satisfy inclusionary housing requirements. Therefore, by definition, AH would not conform to Ordinance 2819.
The Historical Record Continues
The historical record then shows that all of the inclusionary housing requirements set forth in Ordinance 2819 were fulfilled.
On July 22, 1985, the Planning Commission adopted Resolution 4037, a Phase I Tentative Final Map which included the subdivision of 24 market rate lots. On June 21, 1990, the developer deposited with the County an inclusionary housing in-lieu fee of $99,700 (one unit). Consistent with Condition #6, this payment satisfied the inclusionary requirement for the 24 market rate lots. Subsequently, the Phase I Final Map was recorded.
On March 26, 1990, the Planning Commission adopted Resolutions 4192 and 4194, a Phase II Tentative Map and Development Plan for the market rate condominiums. By this time, the plans had changed and called for 30 condominium units instead of the original 36. Condition #16 established the inclusionary housing requirement of 10%, or three units.
No condominium development occurred for the next 6 years. After several rounds of intense negotiations and compromises between the residents of Strawberry and the developer, a new plan emerged for 20 condominiums. The inclusionary housing requirement for this new project would have been 10%, or two units.
County Counsel's Second Key Determination
An intense and robust debate ensued among all stakeholders over the issue of whether the inclusionary housing requirement should be satisfied by building the units on-site or off-site, or by paying in lieu fees. In addition, the new Marin County Code requirement was now 15% instead of 10%, so inclusionary housing advocates were pressing for 15%, or 3 units.
Once again, and most important, County Counsel weighed-in to settle the dispute about the applicable percentage to use in calculating inclusionary housing. Counsel advised Staff that “the inclusionary housing requirement for the project should be 10% as established by the Master Plan, not 15% as established by current Marin County Code, because the revised project is not a new project and only new projects should be subjected to the current code requirement.” (Staff Report to the Planning Commission, March 10, 1997)
On March 27, 1997, the developer reached a compromise settlement with all stakeholders by agreeing to pay in-lieu fees of $250,000, which exceeded the requirement for 2 inclusionary units. As a result, the Phase II Final Map for the condominiums was recorded in 1997, whereupon all of the inclusionary housing requirements for the entire Seminary Master Plan were satisfied.
Where We Stand Today
Nothing has changed since 1997. In fact, there has been no new development on the Seminary’s remaining campus in more than 30 years. The remaining entitlements under Ordinance 2819 are the same today as they were in 1984. In addition to 93 units of student and faculty housing, Fasken Trust, the new owner of the Seminary property, also is entitled to build for religious educational purposes a 12,000 square foot student center; a 12,000 square foot classroom building; a 25,000 square foot chapel/auditorium; a 17,000 square foot gymnasium; a 3,000 square foot day care center; and a 3,000 square foot maintenance building.
Those pundits, who like to claim that the citizens of Strawberry would not cooperate with the Seminary and always would say “No” to new development, don’t know what they are talking about. We did our part by agreeing to all of the provisions of the Seminary Master Plan. It’s not our fault that the Seminary didn’t build all of its entitlements. If the Seminary had completed its plans, then we would not be entangled with an AH now.
In 2013, over the strenuous objections of the citizens of Strawberry, the Board of Supervisors adopted and imposed on the Seminary property an AH with 60 units of affordable housing on 2 unspecified acres of land. As it turns out, however, an AH is inconsistent with the Strawberry Community Plan, Ordinance 2819, the religious educational land use designation, and other development entitlements.
County planners recommended adoption of the Seminary AH based on the simplistic calculation that the 60 units of affordable housing in the AH were less than the remaining entitlements for 93 units of student and faculty housing, but they failed to present the historical record of administrative laws that clearly reveal that units of affordable housing are not interchangeable with “specialized” units of student and faculty housing. That historical record was, and is, critical for a fair hearing before the Planning Commission and Board of Supervisors.
The Goal is to Rescind the Seminary AH
Based on the historical record, an AH never should have been imposed on the Seminary in the first place. The Staff Report to the Planning Commission on January 9, 1984 (Item #11, p.3) describes the unusual nature of the Seminary Master Plan as follows: “Unlike most other Master Plan applications reviewed by the County, this proposal included a very specific and detailed set of development standards for each of the proposed buildings.” Those development standards did not include or envision an AH.
The Seminary AH should not have been lumped together with the St.Vincent’s/Silveira AH and the Marin City AH because they have no such historical records, or specific and detailed sets of development standards. Finding IX may apply to them, but it does not apply to the Seminary AH.
I urge you to rescind the Seminary AH because it is inconsistent with the administrative laws of Marin County; it is unnecessary because it is not a part of the 2014 - 2023 Housing Element (HE) Site Inventory; and it is superfluous because current RMP-2.45 zoning already allows the clustering of housing units at 30 units per acre, or 40 units per acre, or 50 units per acre, etc., up to 93 units per acre, which equals the remaining housing entitlements.
Broader Implications of AH Zoning and Bad Governance
On a broader perspective, citizens across Marin should be concerned about the AH issue because it is emblematic of the growing trend of unelected County planners and Planning Commissioners driving Marin County Code based on their own personal beliefs, and the diminution of public input and local control.
AH has morphed from a tool to automatically satisfy the state housing authorities’ default density requirement for those few sites identified in the HE Site Inventory, into a broad new countywide zoning policy that now applies to all areas with any type of previous residential zoning. Although AH impacts only three sites now, planners can impose it on almost any other residential site in the future.
When the Supervisors approved the 2014 – 2023 HE, they clearly intended to remove the Seminary AH from the HE. Unfortunately, although the Seminary AH was removed from the Site Inventory, it remained listed in another Table within the report. Consequently, the Seminary AH inadvertently continues to be a part of the current HE. Three lines of defense—planners, Commissioners, and Supervisors—failed to represent the citizens of Strawberry by neglecting to remove the Seminary AH from that Table.
Citizens of Marin no longer can expect a fair and balance Staff Report. This Staff Report is a conversation between planners, Commissioners, and Supervisors only. Conspicuously absent is an accounting of public input. Someone reading this Staff Report would assume that there was little public opposition, when, in fact, opposition was robust. For example, I presented this same argument to the Planning Commission, but there is no mention of it in the Staff Report. Others presented strong arguments as well, but their input was not mentioned in the Staff Report either.
Moreover, we no longer can expect planners to perform the necessary research of historical records and administrative laws. Ordinary citizens, such as myself and many others, should not have to perform the research for CountyStaff. That’s their job. But, regrettably, we must continue to do our own research because the tendency of planners, Commissioners, and Supervisors is simply to ignore public input that does not fit the agenda, rather than to discuss it openly.
This type of bad governance has to stop. And it will.
Very truly yours,
cc: Supervisor Kate Sears, firstname.lastname@example.org
Supervisor Damon Connolly, email@example.com
Supervisor Katie Rice, firstname.lastname@example.org
Supervisor Steve Kinsey, email@example.com
Supervisor Judy Arnold, firstname.lastname@example.org
Brian Crawford, email@example.com
Leelee Thomas, firstname.lastname@example.org
Alisa Stevenson, email@example.com