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The Mill Valley City Council will hold a public hearing on Monday, March 7, 2016 to discuss and potentially approve significant amendments to the Mill Valley General Plan and Zoning Ordinance: officially known as the The General Plan Amendments to the Land Use and Mobility Elements, and the Multi-Family Residential and Mixed-Use Development Standards and Design Guidelines, and proposed changes to the Zoning Ordinance and Zoning Maps.
Community Venture Partners, Inc. has submitted the following comments to the City of Mill Valley, about the potential adverse impacts of the substantive changes being proposed, and informing them of their responsibilities under the California Environmental Quality Act ("CEQA").
The introduction to that letter is published below. Read the entire comment letter, please click on this link or the link to the PDF, below.
Dear Mill Valley City Council:
The following are my comments and requests regarding the items 7, 8 and 9, scheduled for discussion and potential decisions, post on your agenda for the public hearing of March 7, 2016.
Community Venture Partners (“CVP”) is a 501(c)(3) nonprofit organization, of which I am the founder and president, is dedicated to bringing the voice of the community to government decision-making and keeping the public fully informed. Toward that end, CVP spends significant time and expense in an effort to ensure that decision makers have the best possible information at their disposal. We do this as a public service, as unpaid volunteers, and our efforts are wholly dependent on public support from hundreds of Marin residents, many of whom live and work in Mill Valley.
I’ve followed planning and development issues in Mill Valley for most of the 23 years that I’ve lived here. During that time, I’ve attended and participated in many public hearings, workshops and presentations, and along with my background as an architect, planner, and real estate developer, I consider myself an expert in development and planning matter, particularly in our City, and have a firm grasp of our history and the concerns of our residents.
You now have three proposals before you; the General Plan Amendment to the Land Use Element, the General Plan Update and Amendment to the Mobility Element, and the new Multifamily Residential, Downtown Residential and Mixed-Use Development Standards and Design Guidelines, and Zoning Ordinance and Zoning Map Amendments.
During the Zoning and Design Advisory Committee (“ZDAC”) and the Planning Commission hearings process that has led up to your deliberations, CVP offered comments, directly, and through our legal counsel, Edward Yates, via written comment letters and email correspondence, to the Planning Department and Planning Commission. The comments in those letters and related correspondence are incorporated into the record in the Staff Report and attachments.
In my opinion, the information presented by the Mill Valley Planning Department, regarding the three items before you, and the methods Planning Staff used to develop and present that information to the public and the Planning Commission are highly problematic. The Reports, documents and attachments are overly complex, poorly organized, confusing, and at times contradictory and misleading to the point of literally being almost indecipherable to an ordinary human being (infinitesimal type footnotes, attachments upon attachments, references to other references, redundancies and contradictions, and so forth). They fail any reasonable test to satisfy the public’s right to know and understand the full extent of what is being proposed, and the possible consequences.
Comments by CVP and rebuttals by Planning Staff
CVP has filed exhaustive comments about the inadequacy of the proposals before you. In response, the Staff has reaffirmed its conviction that what they have done, what they have presented and what you are resting your decision upon is in full compliance with all requirements under the law. To paraphrase, the Staff’s stated position is that because there are no specific development projects before them at this time, and because they are carrying out concepts suggested in the General Plan, The City is not obligated to do any further investigation, studies or analysis of potential impacts or outcomes resulting from these General Plan Amendments and new and revised Zoning Ordinances. They contend that when actual projects are proposed in the future, each will be subjected to its own rigorous California Environmental Quality Act (“CEQA”) process and that this will be sufficient to protect the public’s interests.
I respectfully disagree.
My argument, in plain English, is that if we do not undertake comprehensive analysis of the possible outcomes of these proposed General Plan Amendments and the Zoning ordinance, at this time, when we are making decisions that could potentially impact every resident of Mill Valley for decades to come, even if it were not required under CEQA, which it is, when will we do that? When, other than now, will we have the opportunity to properly understand the overall, inter-related impacts of the outcomes of these proposals?
The history of development in Mill Valley has shown that when individual infill projects come before the City, few are ever required to do an environmental impact study. At most, projects are processed by yet another Negative Declaration, referencing the “adequacy” of some past document. It is reasonable to assume that future developers will claim, as they have always claimed, that their “little” five or ten unit project couldn’t possibly have significant impacts. It is therefore a falsehood to claim that there will be adequate future review.
In fact, the City has already acknowledged that a CEQA review will probably not be done. The 2013 General Plan, upon which the Staff’s arguments rest so heavily, specifically contradicts the claim that further CEQA analysis, will be required. On Page B-25 of Appendix B to the 2013 General Plan, it states,
While the discretionary Design Review Permit [process] triggers environmental review, the vast majority of projects in Mill Valley are determined to be exempt from CEQA under the urban infill exception (CEQA Guidelines Section 15332).
The dysfunctional review process that results from this is exactly what has brought about some of the most significant problems residents are dealing with. Each incremental development project goes un-analyzed because its cumulative impacts cannot be assessed at the time, until we suddenly find ourselves in the situation we are in today, where our entire City is dangerously gridlocked with traffic almost all the time, on weekdays.
I also want to emphasize that everything I’m arguing for impacts me, personally, as a resident of Mill Valley, and it potentially negatively impacts CVP supporters and my neighbors, as well. Our neighborhood is extremely impacted by increases in traffic, lack of parking, inadequate storm drainage, flooding, school overcrowding and all the other kinds of negative impacts that result from development. And as you all know, I’m an acknowledged community leader who is in constant communication with many community leaders in our City and beyond. So, I can assure you that my comments reflect the views of large number of Mill Valley residents.
The proposals before you are in many ways the result of discussions that began in 2001, with the City’s launch of the Miller Avenue Precise Plan (“MAPP”), and the subsequent discussions about land use, mixed-use, and growth or no growth, affordable housing, and traffic, which continued into two General Plan Housing Element updates with their State mandated Regional Housing Needs Assessment quotas, and ultimately flowed into the Mill Valley General Plan Update 2040 and the Miller Avenue Streetscape Plan.
However, none of these prior processes, or the documents they produced (except for the Miller Avenue Streetscape Plan, which had its own EIR), provided specifics about how those ideas would actually be implemented, nor did they provide study or analysis of what the possible outcomes and impacts of implementation might be. In fact, at every step of the way the public has been told that such study and analysis will be dealt with in the future.
The Planning Department contends that such study and analysis can still be put off until sometime in the future. CVP contends that the future is now and that CEQA requires assessment of impacts at this juncture. On this point, the Planning Department and CVP remain in disagreement.
INITIAL COMMENTS & CORRESPONDENCE
On November 2, 2015, the Planning Department issued its Staff Report entitled, Possible Amendment to the General Plan to Address Traffic Congestion in Key Corridor Locations;
In anticipation of the public hearing on this Report, on October 30, 2015, I filed a comment letter that, among other things, pointed out that the methods and terminology suggested in this Report, were so broad and open to subjective interpretation that they failed to address many of the problems at hand. A copy of that letter is found in Attachment CVP2.
CEQA Exemption Claim by Planning Staff
In the Staff Report to the Planning Commission, dated January 12, 2016, starting on Line 19, under the section titled, ACTIONS REQUESTED, Staff recommended that the Planning Commissioners approve the proposed amendments to the Zoning Ordinances and Zoning Maps without any CEQA process, because it was categorically exempt from the requirements of the California Environmental Quality Act (CEQA) under Sections 15305 and 15061(b)(3) of the CEQA Guidelines.
In my comment letter of January 11, 2016, I pointed out the fallacy of the Staff’s contention that this action was categorically exempt from CEQA. A copy of that letter is found in Attachment CVP3, and can be found at this web site link.
My letter stated that the referenced sections of the Guidelines, quoted, were nonsensical at best and misleading at the worst. Frankly, it is inconceivable to me that the Planning Department Staff did not know that the regulations they cited were erroneous – something that was obvious even to me, who is not a legal professional.
When asked about this in an email, Jim McCann, our City Manager, said,
I'll be honest with you, I am not that deeply versed/familiar with the CEQA issues around the multi-family design guidelines and associated zoning matters. It is my understanding that the bundle of proposals do not introduce significant changes to our land use regulatory environment and as such should easily qualify for use of an exemption.
It is also disturbing that when Planning Director, Vin Smith, was asked about my challenge to the City’s claim of CEQA exemption, by Commissioner Bolen, during the subsequent Planning Commission hearing on January 12, 2016, Vin Smith, with the concurrence of the City Attorney, dismissed my challenge and assured her that she could as well, and that the categorical exemption was correct. This caused the entire Planning Commission to cease questioning any aspects of CEQA requirements, at that hearing.
Actions such as these, by Planning Staff, are a continuation of a pattern of behavior brought to your attention many times by the public and in a letter from former Planning Commissioner, David Rand. The subsequent Staff Report on Planning Commission Practices, dated 02-19-13 (see this link or Attachment CVP4), responds to Mr. Rand’s letter and speaks to the need for better information from Staff and training of the Commissioners, wherein, among many other things, the City Manager recommended:
With respect to CEQA, the required procedures, timelines, thresholds and current legal determinations regarding CEQA matters, as they relate to the type of land use and a general familiarity with its elements and principles, would be particularly helpful for the Commissioners.
This suggested information and training never occurred, leaving the Planning Commission wholly dependent on the guidance and opinions of the Planning Department Staff.
One of Mr. Rand’s concerns was that Planning Staff was hindering the powers and decision making abilities of the Planning Commissioners by not answering their questions directly or fully, and not bringing things to their attention, which were relevant to their questions and decision making process.
In the present situation, having been challenged on their claim of CEQA exemption, or I think, more accurately, having been caught in the act of trying to avoid a CEQA process, the Planning Department Staff made an abrupt about face, the week following at the February 19, 2016 hearing, and announced that they would in fact undertake a “CEQA process” for the General Plan Amendments and Zoning Ordinance and Land Use proposals.
CVP Comments and Planning Staff Responses
Subsequently, Planning Staff came back to the Planning Commission with what is now before you, which is simply another version of misleading the public and the City Council about the CEQA requirements bearing on your decisions.
1) In response and in an attempt to help the City better understand their legal responsibilities, CVP’s legal counsel, Edward Yates, filed a comment letter on 01-23-16 pointing out the inadequacy of the new process the Planning Department had undertaken. Those comments are in the record and incorporated, herein, by reference.
2) On 1-26-16, Vin Smith refuted Mr. Yates’ comments in a letter to the Planning Commission. In addition, City Attorney, Greg Stepanicich, issued a letter to the Planning Department, further refuting Mr. Yates’ comments, essentially affirming the Planning Staff’s position on CEQA requirements.
3) On 2-9-16, CVP’s legal counsel, Edward Yates, filed yet another comment letter in an attempt to fully explain our belief that the CEQA process the Planning Department was pursuing and documentation provided was inadequate. Those comments are in the record and incorporated, herein, by reference.
4) On 2-9-16, Vin Smith wrote a response to Edward Yates’ letter, and continued to contend that the CEQA process that was undertaken by the City was adequate, citing CEQA Guideline Section 15384 in defense of their actions.
We continue to respectfully disagree with the City’s position on this issue and urge the City to carefully consider their position before proceeding.
Links to Correspondence by Edward Yates and City of Mill Valley
Other correspondence and questions
On 2-1-16, I wrote to Kari Svanstrom of the Mill Valley Planning Department, with a list of questions and requests for clarifications, regarding the Staff Report to the Mill Valley Planning Commission, dated February 9, 2016: Multi-Family Residential, Downtown Residential and Mixed-Use Development Standards and Design Guidelines and Initial Study.
This is a synopsis of that correspondence.
“Design excellence” and the proposed “performance standards” to incentivize development
I admit that I remain somewhat confused regarding the status of the “design excellence performance standards,” originally described on Page 4 of the Staff Report to the Planning Commission for the Multifamily Residential, Downtown Residential and Mixed-Use Development Standards and Design Guidelines, (Feb. 9, 2016), which I believe is now part of Attachment 9 in the March 7, 2016 packet. This discusses the proposal for a “Design Excellence” FAR bonus, and setback reductions, based on new performance standards. This provision would apply to all new multi-family development and to all new mixed-use, multi-family development.
This proposal, as it was presented to the Planning Commission, added a host of new, undefined terms and an entirely new layer of indecipherable subjectivity to the granting of extra development rights, based on criteria that had not been completely decided upon. Eliminating ambiguity in the development review process was one of the key goals of ZDAC and the zoning ordinance and design guidelines revision process. The Design Excellence provisions presented read like some pork-barrel legislation that throws in the kitchen sink, just before it’s held to a vote.
Those proposed performance standards were vague, incomplete, arbitrary and without objective analysis of potential impacts of implementation. Accordingly, on February 2, 2016, I asked Kari Svanstrom, head planner for Mill Valley, the following questions:
In the Staff Report; February 9, 2016; Page 4; Line 127-128; it states: “1) if a project incorporates certain design elements which the community values…” then goes on to suggest possible design elements on lines 139 through 150.
Since Mill Valley never went forward with its proposed “visioning” process, which has been discussed since as far back as 2001, how were these arrived at? What public process was conducted? If there was no public process, then these appear to be the arbitrary and wholly inadequate opinion of planning staff or planning commissioners or special interests. Please clarify.
Further, what is the technical definition of “Cottage Development?” It sounds cute but has no practical legislative meaning in our codes. Similarly, what is the definition of “green roofs?”
These new terms appear to be critical to the granting of additional development rights, decreased setbacks, increased FAR and associated impacts. So, under the proposed “Performance Standards,” what is the logic or methodology being used here to establish what again appears to be a subjective and arbitrary list? And, how can City staff or a planning commissioner interpret and implement these in any consistent way that doesn’t add to the already overly subjective way planning deals with property owners and developers?
My contention was and is that these types of vague terms being used as the basis for granting significantly increased development rights, seems unwise and inequitable.
Kari’s response was to say,
…the proposed definition for Cottage Development (“Multiple small detached dwelling units on a single multi-family lot”) – which, by the way, is not in the Guidelines; and
Green roofs can be easily defined as this is widely available in dictionaries (Green Roof: a roof covered with vegetation, either in trays or directly planted)
This begs the question about which dictionary I should use as a developer? And how big are those “trays” required to be to qualify for more FAR? Obviously, this is nonsensical.
I am recently informed that the Planning Commission chose more hard and fast but equally subjective and unsupported criteria on which to base the granting of FAR and setback bonuses. Either way, how can any reasonable person, the public or developers, assess how this will be implemented, much less assess its impacts? The design excellence concept is unsupported by any facts, studies or references. This is not a reasonable way to conduct planning.
Arbitrary and Unsupported Parking/Unit Size Guidelines:
In my correspondence with Kari Svanstrom, I questioned the arbitrary nature of the parking reduction guidelines, which reduce parking requirements based on specific square footage limits on living unit sizes, irrespective of rental rates, income levels or other reasonable rationale. Efficiency units require ½ space each, units up to 825 SF require 1 space each, units over 825 SF but up to 1,250 SF require 1 ½ spaces each, and units over 1,250 SF require 2 spaces each as shown on page 6 of the Staff Report: Proposed Multi-Family Residential, Downtown Residential, and Mixed-Use Design Guidelines, Development Standards, and Zoning Text and Map Amendments, dated March 7, 2016.
I questioned these square footage cutoff points because they are unsupported by any research, studies, or analysis. In other words, why 825 SF versus 850 SF or 800 SF? Where do these figures come from?
Kari ignored my question and noted that it was “discussed at meetings” and then cited Census data that showed Mill Valley recently has more homeowners than renters, which is completely unrelated to my question of why those particular unit sizes were appropriate to use or why they would not result in significant parking shortages in the City.
There is no credible data I know of that shows that unit size correlates with vehicle ownership, other than skewed statistics based on the fact that urban apartments are generally smaller, and urban dwellers generally own fewer cars because they are generally poorer and because car garage costs in urban areas is very high. None of this applies to a suburban community such as Mill Valley.
My question and criticism remain unanswered: Why are these set as the unit sizes that result in parking requirement reductions, and what will the impacts of these development incentives once implemented? If these size-related requirements cannot be supported by credible data, they should be removed entirely.
Confusing and Inconsistent Presentation Methods:
As noted above, in my correspondence with Kari Svanstrom, I questioned why the presentations of the various pieces, the two General Plan Amendments and the Zoning Ordinances, were so complicated and inconsistent and used different methods to convey the same kinds of information.
For example, in the Multi-Family Residential, Downtown Residential and Mixed-Use Development Standards and Design Guidelines and Initial Study, dated Feb. 9, 2016, Exhibit C, Page 11, parking bonuses are clearly shown in the charts or requirements, and a section entitled, B. Additional Development Standards is included to describe “Useable Outdoor Living Space” exceptions for accessory buildings, development bonuses for “Parking Exclusions” (that provide FAR bonuses for garages), “Reduced Interior Setback” provisions, and “Guest Parking” provisions. Yet on page 15 and 16, and in the charts on page 33, of the same Exhibit, it presents similar information in a completely different format, some of which is only found in tiny 9 point font footnotes below, that references other sections of the Report.
One method of presenting all criteria and information would help the public decipher these overly complex documents.
Inconsistency with our Housing Element and assurances given by the City Council to the public to gain its approval:
In my correspondence with Kari Svanstrom, I questioned why none of the documentation for any of the three major items being considered makes any reference to the very specific directions given to Planning Staff by the City Council, regarding the Mill Valley Housing Element, which were inseparably tied to specific promises made to the public at those City Council hearings in order to gain the support of the general public for the approval of the Housing Element, at the time of its adoption.
These directives to Staff and promises to the public in exchange for support, specifically related to the preservation of commercial and other retail properties along Blithedale Avenue, from Park School all the way to Highway 101, and including parcels along Highway 101 such as the Goodman’s Lumber site (see this link to the Marin Post - Mill Valley Takes the Lead in Addressing Our Sustainable Growth Challenges in Marin and this link to the Marin IJ – Mill Valley adopts controversial housing element, or Attachments CVP5 and CVP6).
The intention of the City Council’s directives was to not allow for multi-family, or multi-family, mixed-use in that corridor or on those parcels so that our local serving business location opportunities were not crowded out by more lucrative residential development. However, the new proposed ordinances and guidelines don’t incorporate these directives in any way. Preserving local serving businesses is a core principle of our General Plan.
Kari was “unsure” of what I was talking about.
CEQA remains one of the last protections the public has to ensure that cities and agencies protect the public’s interests when programs, projects and new ordinances are reviewed, such as the three actions before you. CEQA was enacted to ensure that certain requirements are met by the city and its agencies (the “lead agency”). It obligates the lead agency to standards of care and due diligence.
In the simplest terms CEQA requires two basic things:
- That the lead agency cannot make assumptions or subjective judgments about what the consequences and impacts of a proposal might be, or which impacts are significant or not significant. Decisions must be grounded in specific and relevant assessments, analysis, studies and data. In this regard, the three Negative Declarations for each of the three “projects” before you fail to meet that test.
- That the lead agency has a responsibility to clearly and accurately explain what the proposed project is and clearly and accurately inform the public of the potential impacts and consequences of the proposed project, and to do so in a comprehensive way. Once again, in this regard, the three document packages for each of the three “projects,” before you, fail to meet that test. The public has a right to know, clearly and comprehensively, what is being proposed so that they have the ability to comment on it intelligently.
With respect to these criteria, the inadequacy of the City’s approach has been exhaustively enumerated in Ed Yates’ correspondence.
The Staff continues to maintain that they have fully complied with the requirements under CEQA because we have failed to provide sufficient evidence to show that there will be significant impacts.
Again, we continue to disagree with Staff because CEQA’s requirements for facts, evidence, description of the affected environmental, environmental assessment and mitigation fall on the City, not the community or individuals. And the City has not sufficiently described the affected environmental, assessed the three proposals’ impacts and provided any evidence or support for its impact conclusions.
What is the “Project?”
A number of Mill Valley residents, who’ve followed this process for years, attending the hearings, read the Staff Reports and Negative Declarations, have contacted me over the past month asking the same question: “What is the “project” that these documents keep referring to?” This is indicative of the flaws in the Planning Department’s overall approach to these General Plan and Zoning Ordinance proposals and the methods they’ve chosen to present and explain it to the Planning Commission and the public.
The answer to the question people keep asking is that there is only one “Project.” So, where is an overall, comprehensive explanation of how the parts work as a whole? These documents aren’t supposed to be written for planning professionals. They’re supposed to be written for the general public.
Simple common sense dictates that the three parts of these proposals are interrelated, and the outcomes and impacts are inseparably linked. That same common sense argues for the “project” being described clearly, so that residents are fully informed about what is being contemplated, and so they can understand how this specifically impacts each of them.
The Planning Staff’s decision to “piece meal” zoning, mobility and land use changes into entirely unrelated and totally separate Staff Reports, Negative Declarations, attachments, charts, diagrams, public hearings and discussions, with no overview, works against the public’s understanding and meaningful participation.
The Planning Department’s approach obfuscates the interconnected nature of each “project” and in fact, ignores analysis, and precludes discussion of the cumulative impacts of all of the pieces, together. That this approach has succeeded is evidenced by the lack of discussion in the video documentation of each hearing, found on the City’s web site, about interrelated impacts, even by the Planning Commissioners themselves. These impacts obviously include traffic, air quality, parking, and lack of adequate infrastructure, public services, schools, and economic impacts, runoff, flooding, habitat protection, and other environmental impacts.
Review of comment letters submitted by the public to the Planning Commission, during their public hearing process, show that it is precisely these overall impacts that the general public is worried about.
Based on the comments and analysis provided below, I suggest that the City stop the approval process now and undertake a full and proper analysis of the potential impacts of the proposals by preparing an Environmental Impact Report to identify which are significant and if they can or cannot be successfully mitigated.
I firmly believe that such analysis will show, beyond a doubt, that the proposals before you are overly impactful, will be development inducing, and will unduly tax our social, economic and particularly our environmental support systems, and that these environmental impacts will be significant and not possible to reasonably mitigate, requiring that many of the proposals suggested be eliminated and/or dramatically scaled back to appropriate levels.
Toward that end and based upon my own analysis, I would suggest the following:
- That the “permitted by right” designation for new multi-family residential development be eliminated and that a CUP and/or Planned Development process remain in place, in all situations, to give the City greater discretion to protect the general public from over development;
- That the maximum FAR for the Downtown Residential area be set at .60, which (per my analysis below) accurately reflects the true historical development patterns and existing neighborhood character in that area, and at a maximum of .50 FAR in all other areas eligible for multi-family development;
- That subject to detailed analysis and modeling, a maximum FAR for all other multi-family and mixed-use residential development areas be set (at .50, or less) to lessen population increases and the significant cumulative impacts from future development, that will most certainly result on major thoroughfares such as Miller Avenue and Blithedale Avenue from Camino Alto to Highway 101;
- That subject to detailed analysis and modeling, a minimum percentage of commercial use (of .50, or more) of allowable FAR be set for any property eligible for mixed-use residential development, in commercial zones and other mixed-use, non-residential zones, so that highly lucrative housing development does not “crowd out” precious commercial space needed by our local serving businesses, which is essential for us to continue to have local employment opportunities to lessen commute distances to jobs;
- That the “design excellence” development bonus concept, and all its aspects, be abandoned and removed from consideration. This kind of regulation invites abuse, favoritism, and politicizes the planning process. If anything, any consideration of development rights bonuses should be tied directly to the development of affordable housing for those most in need in our community. There should only be one fixed FAR of .50 for all multi-family housing development in the areas under consideration in the Multi-Family Residential, Downtown Residential and Mixed-Use Development Standards and Design Guidelines;
- Remove the “accessory structures” lot coverage allowance exemption in outdoor living spaces;
- That the proposal to provide parking reductions based upon arbitrary unit sizes be abandoned and removed from the proposal Subsequently, determine if there is any evidence whatsoever that reductions in parking lead to any beneficial outcomes to the community, or reductions in car ownership in suburban communities such as Mill Valley, that have almost no viable public transportation options.