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Marin 2016 - Part VIII: Hide the ball

Perhaps, the greatest planning failure in Marin is the conscious decision by staff and elected representatives to ignore the cumulative impacts of development projects and planning initiatives they approve.

Traffic and parking impacts are typically studied in isolation for each proposal, without considering what might be called “collateral” impacts. Studies tend to only look at the streets directly adjacent to a development, disregarding that new residents will drive all over town, and others will come from neighboring communities to visit them, or frequent new retail or office developments, potentially, adding traffic to all the streets in the city.

School impacts never seem to be considered or coordinated at all. And, with the high turnover rate of planning staff, town council members, planning commissioners and consultants, institutional memory is almost non-existent. No one seems to remember what was approved previously or what compromises were reached in the past, which might result in cumulative impacts.

For example, I have seen developers granted parking variances to build multifamily housing on the same street where a previous developer was also granted similar variances, with no consideration for where the overflow parking demand will go. Conversely, in Mill Valley, the Miller Avenue Streetscape Improvement Plan removed scores of parking spaces to provide decorative “bulb outs” at intersections, even though merchants have expressed concerns about parking shortages, for years.

Similarly, and as I will delve into more in Part IX, project approvals in one town rarely consider the potential impacts on nearby towns, or the county as a whole. As a result, major arterials such as Tiburon Boulevard and Sir Francis Drake Boulevard have become gridlocked due to years of unaccounted for cumulative impacts.

This lack of consideration of cumulative impacts is also the result of magical thinking, such as “everyone will ride a bike” or “low income people don’t need cars.” Worse, it’s often based on ideologically-driven decisions to intentionally create intolerable traffic congestion, to punish drivers[1]. The elderly, disabled and those of lesser means might call this the “Let them eat cake” school of planning.

I refer to the disregard for cumulative impacts as a conscious decision by local government, because no matter how many times community members point out the negative impacts of poor planning coordination, on traffic, public services and infrastructure, their comments seem to be ignored.

In Marin cities, ignorance is apparently considered bliss. Or is it something else that is causing elected officials to display such indifference to common sense?

The attraction of power

This series started by questioning the proper role of elected representatives. Once elected, should officials be responsive to the ongoing concerns of the community, or should they assume they’ve been chosen because of their great wisdom, which entitles them to do as they please? Similarly, do the distorting effects of power (and the influence of well-healed regional agencies) alter how elected officials and staff make decisions in Marin?

It continues to amaze me how just weeks after taking office, we see so many elected representatives start sucking up to the power structure. They act like teenagers sublimating their personalities to sophomoric norms, in order to “belong.” Being liked by one’s peers seems to dominate all else. Unanimous agreement becomes prized more than well-argued decisions.

As the desire to represent one’s constituency wanes, logic or facts that are inconvenient get disregarded, and ideologically-driven public policy is increasingly embraced. In one sense, this phenomenon is almost understandable. Faced with the enormity of information needed to make well-considered decisions these days, most people will grasp onto ideological solutions because they provide quick, simplistic answers even if those answers are nonsensical.

I can’t tell you how many times I’ve watched this unfold at city council and board of supervisors hearings. Edmund Burke’s version of representative government[2] takes over. Faced with complicated regulatory questions, elected officials start to just wing it and grasp onto arguments that they claim are justified by nothing more than their “feelings.”

In Why They Do It: Inside the Mind of the White-Collar Criminal, author Eugene Soltes notes there is a strange dynamic that takes over when people become members of powerful groups. His investigation is about high ranking business people, but I think the same principles apply to elected officials. Soltes comments that senior officials start to operate in a moral “gray zone,” where they stop listening to their critics or logic, and become more and more enamored with their own “instincts” (to which they ascribe all their success).

The only problem is that in most instances, their instincts tend to suck.

Meanwhile, these self-enamored elected officials, and their city managers and planning directors, seem oblivious to the bigger picture and the tsunami of unintended consequences that is gaining momentum all around them. The public, however, has become increasingly aware of this danger as they see larger and larger development projects being proposed up and down the Highway 101 corridor. As a result, protests over individual projects and demands for local transparency are growing.

Paradoxically, as I’ve noted elsewhere, in the face of all this, instead of putting more effort into enabling greater transparency and interactivity, local governments continue to work hard to keep the public in the dark.

Endless fire drills

In more than two decades of involvement in local community affairs, the number one complaint I’ve heard is that government avoids public input by not providing enough time to evaluate planning proposals. In addition, too often public notices typically only provide shorthanded or otherwise indecipherable descriptions of what is at stake at a particular hearing. The real impacts of pending decisions on the lives of average citizens are rarely disclosed in any reasonable way.

Voluminous staff reports and studies are released on a Friday afternoon, before on a holiday weekend, for a major decision making hearing the following Monday or Tuesday night. Sometimes these “data dumps” are three or four hundred pages, for hearings right before Christmas or Thanksgiving, or in the dead of summer, when everyone is away on vacation.

Each and every time, the community is forced to go into “fire drill” mode to read and evaluate the reports, and compose carefully written comment letters that often have to be submitted before the hearing, in order to preserve the legal right to argue later on.[3]

The public outcry has been that this is unfair and overly burdens residents who also have busy lives of their own. The net result is that the public often doesn’t know what the city is up to or what all the consequences are until it’s too late.

In response, some cities have increased the use of social media and created email alert lists that send out notices in a more timely fashion. However, they still only use social media as a “push” tool (sending people static text) rather than taking advantage of all the interactive survey and polling apps available to solicit real-time feedback. In addition, the notices they do send out inadequately describe the complexity of issues at hand (i.e., “The Council will discuss the 2015 – 2023 Housing Element.”).

As a result, a typical resident has no idea, for example, that a decision at hand could reduce parking on the street in front of their local business or allow multifamily, high density zoning on their block.

Clearly, government could do a better job communicating and receiving communications.

Many elected officials, however, blame the public. They lecture us about being “confused” because “it’s complicated stuff” or that we are “misinformed” by NIMBY’s who are spreading lies. To add insult to injury, they often admonish the public for failing to participate in the process and for not having paid more attention long before the decision date arrived… as if everyone has the time to show up at hearings at 11 am on a weekday or sit through deliberations until 11:30 pm on a week night.

A stacked deck

Like many other cities in Marin, Mill Valley recently spent several years on its General Plan Update. Simultaneously, they developed the comprehensive zoning changes discussed in Part III of this series. That process also took a couple years and included the appointment of an advisory committee, and public hearings and workshops.

During this entire process, citizens and community groups commented on the proposal’s inadequacies. In each instance, they were generally told some version of, “This is just the beginning of the process. There will be lots of time to discuss your concerns before any decisions are made.”

So, skeptics bided their time and assumed their criticism would have its day in court. They put up with fake “workshops” that are typically staged performances by profession handlers, who break people into small groups (divide and conquer) and only allowed them to discuss the items on the agenda. These venues generally quash any attempt to stray from the official talking points, even though those talking points avoid the very questions about impacts that participants came to talk about.

This process is typically supplemented with reports, studies and recommendations from high paid consultants. It is rare to find a comment from one of these “third party” consultants that does not support the staff’s predetermined goals. In fact, to an outside observer one comes away feeling that the primary job of consultants is to come up with arguments to use to disregard public criticism.

So what was a concerned Mill Valley resident supposed to do to be heard, during all this “process?” If they asked their elected representatives (the City Council members) about the plan at any time before the final decision making hearings, they were told, “I can’t really talk about it because we haven’t really seen it yet. It’s still at the Planning Commission level.”

Many months later, having been passed from the workshops to the Planning Commission, the new zoning proposal came before the Mill Valley City Council, which was the only governmental body in the entire process that had the legal power to adopt and enact the ordinance.

The documents before the City Council numbered almost 400 pages: staff reports, studies, public comments, legal opinions, and so on. Just reviewing it would have taken weeks, yet the Council had only received the package days before. And, officially, this was the first time the Council had even seen the proposal.

It’s important to note that this was also a de novo hearing, meaning that the council members could take as long as they wished and deliberate and change anything they desired.

As noted in Part III, the legal comments presented to the City did result in the “by right” zoning and the parking bonus provisions being removed from the ordinance in the eleventh hour. However, that aside, questions lingered about the lack of sufficient analysis or modeling of the cumulative impacts of the proposed zoning changes. Surely, now dissenting voices would finally be heard, right?

At this final hearing, two prominent community members, one of whom had served on the Planning Commission, as its chairman, and the other who had served on the oversight committee during the entire, multi-year public process, got up and urged the City Council not to approve the ordinance without first doing impact and modeling studies to determine if the outcomes would be as hoped. Coming from these two, whose credibility was beyond question, the Council could not brush the issue aside as just another complaint from some “uninformed” community member who had failed to participate.

As the hearing went on, it became clear that the two junior council members, who had only been inaugurated a few months before, really had no idea what was contained in those 400 pages, or the relative significance of some of the public comments included. It was equally clear they had little knowledge about the myriad of laws and issues involved. This left just three council members to decide.

Only Mayor McCauley had a list of significant questions for staff. Jessica Sloan, Vice Mayor, seemed noncommittal but was leaning toward agreeing with McCauley that more study would be a good idea. Then it came to council member Stephanie Moulton Peters.

Moulton Peters had recently been re-elected to an unprecedented third term on the Council, going against a longstanding agreement in the community, to voluntarily accept a two term limit. This victory seems to have infused her with the type of faith in her “instincts” that Eugene Soltes refers to.

Her comments started out well enough and for a moment it seemed that the council recognized the gravity of the request made by the two aforementioned experts. Then to the surprise of many, Moulton Peters, who had not directly participated in any of the zoning ordinance planning process for the past several years, and who again, was officially seeing this plan for the first time, became impatient and adamantly declared that the City had “spent years on this project” and “everyone has worked so hard” on it, so she’d heard enough. It was time to “take action.” She expressed no sympathy for those who had not adequately participated in the “process,” and who, in her opinion, were now nitpicking in the eleventh hour.

And in the blink of an eye, the Council unanimously approved the new ordinance and that was that.

So much for dissenting voices having their day in court.

This has become standard operating procedure in Marin. During lengthy public review processes, dissenting voices are told there will be plenty of time to consider their objections. Then, when proposals are before the elected decision makers, dissenters are admonished that it’s too late to talk about changing course.

“Hide the ball” is a game many Marin governments have mastered. The public comes prepared to play but somehow they never get their hands on the ball. There is little doubt that planning staff is doing this with the clear intention of avoiding public scrutiny. Still, some may think that elected officials are not complicit, that they’re just in a tough situation and are, after all, mostly just volunteers.

Unfortunately, that’s not the case.

A couple of years ago, former mayor Ken Wachtel alerted his neighbors when he saw that a major zoning change was coming before the Council for a final vote; one he was sure no one knew about. The proposed rules were highly technical but would have dramatically decreased the overall, allowable size of homes in Sycamore Park, by cutting the so-called “garage bonus” in half.

Ken did the right thing. He knew his neighbors would be concerned. And they were. At the subsequent council hearing residents showed up in droves to protest.

For his efforts Ken was harshly chastised by fellow council members for daring to speak to the public about anything that had not yet “officially” been presented to the council (even though they all knew very well that by the time it came to the council it would be too late to stop it, unless the public staged a massive protest). Ken had gone outside the fraternity and there would be hell to pay.

Let the public be damned.

Are referendums and initiatives in our future?

The recent history of planning in the town of Fairfax has been a story that exemplifies the worst of the trends described in this series. With its Town Council in the grips of several ideologically driven, affordable housing advocates, Fairfax passed a draconian, “by right”[4] zoning ordinance that threated to transform one of Marin’s more laid back communities into a new high density hub. The ordinance permitted new housing, by right, in almost all commercially zoned areas in the downtown. Impacts on parking, traffic, longstanding locally serving businesses and other concerns were generally disregarded.

The community was not pleased. In response, they quickly organized a referendum to nullify the Council’s action. They hit the streets and collected more than 1,000 voter’s signatures in a very short time, which forced the Council to either nullify the zoning ordinance or put it to a public vote. It was somewhat unprecedented because Fairfax had just received their Housing Element approval from The Department of Housing and Community Development (“HCD”) in Sacramento, to overturning the new zoning would create political problems for the incumbents.[5]

Fearing a public vote would only demonstrate how sizeable the public opposition to their scheme was, the Council nullified the new zoning ordinance. Undeterred, however, they have continued to try to resurrect their urbanization plan in new incarnations. The town council and what appears to be the majority of its residents have been engaged in a pitched battle over the fate of Fairfax ever since.

A referendum is when a question or issue is brought before the public for a vote, typically to challenge, remove or alter an existing regulation or public policy. If a valid petition with the required number of register voter signatures is presented, an elected body (e.g., the Fairfax Town Council) can choose to simply adopt the referendum’s terms, or hold an election and let voters decide. An initiative, which we are all familiar with from our California voter’s ballots, is when the public is asked to approve or disapprove a newly proposed law, regulation or policy.

The events in Fairfax raise an interesting question. The time, energy and expense necessary to affect public policy decisions during a typical public hearing process, are enormous. Research must be done, experts and legal counsel must be sought out and detailed comment letters and studies must be composed and submitted in a timely manner. It can be very expensive and exhausting; particularly because the municipalities and public agencies being challenged have all of our tax money to defeat community efforts, so the process can go on for years.

One wonders. Would it be easier to just put more effort into initiatives and referendums instead, to shape and correct public policy?

It’s something worth considering.

Still, even if the answer is affirmative, there may be more important forces driving local planning outcomes that are less easily altered by the local initiatives and referendums.

Part IX - Regionalism will be published soon

Read Part I – Is representative government slipping away?

Read Part II – Will the suburbs be hunted to extinction?

Read Part III – Dispatches from the front – Mill Valley

Read Part IV – Dispatches from the front – Hamilton Field

Read Part V - Dispatches from the front - Corte Madera

Read Part VI - Dispatches from the Front - Marin County Government

Read Part VII - What will you do when Marin is no longer Marin?

Read Part IX - Regionalism

Read Part X - Endgame

[1] The idea that driving is evil is an antiquated concept from the 1970’s, before alternative fuel and hybrid vehicles were imagined. At that time it was just assumed that driving and air pollution were synonymous. This is no longer true.

[2] See Part I

[3] Under the California Environmental Quality Act, unless a public comment and evidence is submitted prior to the lead agency making their decision, those comments and evidence cannot be included in any legal argument that might be brought at a later date.

[4] By right zoning provides that a real estate developer can be assured of obtaining a permit for a particular use; in this case housing units.

[5] The proposed “by right” high density housing zoning played a significant role in getting HCD to certify the Fairfax Housing Element.