Most of us would like to think there’s an unwritten agreement that we pay taxes and government does its best to “mind the store.” We also expect them to understand all the rules and regulations required to do that. And beneath all that there is the basic assumption that they actually know how things work. In fact, we rely on them not just to know the rules but to be experts in them, and to be our “go to” authority.
Last but not least, we generally assume that they’re being open and honest about the facts and circumstances of what they are doing (Why wouldn’t they be?), and they are making decisions based on the best possible information and advice available.
Unfortunately, if you believe any of this, in Marin, more often than not, you would be wrong.
The case of the Mill Valley Multi-Family Residential Mixed Use Zoning Ordinance
Mill Valley recently updated its General Plan along with its 2015-2023 Housing Element. In that document, it noted ways to facilitate affordable housing. As a consequence, and because the city’s zoning ordinance had not been updated in decades, Mill Valley also proposed a new Multi-Family Residential Mixed Use Zoning Ordinance that would (1) make high density residential “by right” in all existing commercially zoned areas, and (2) offer developers extremely lenient parking bonuses that reduced requirements from 2 parking spaces per dwelling unit to as little as ½ space per unit in some instances.
“By right” zoning means that a developer cannot be denied approvals so long as a proposal meets all other local zoning and building codes. The current zoning for multifamily in commercial areas is “conditional use,” which means that the City gets to decide whether or not high density multifamily development will be allowed. By right is generally acknowledged to be an open invitation to development.
Common sense tells us that both the by right change and the parking bonuses would have a significant impact on future development intensity, traffic, parking, infrastructure, public services, schools, and a host of other things, all of which is required to be analyzed under the California Environmental Quality Act (“CEQA”).
Yet, Planning Staff initially stated that the ordinance was categorically exempt from CEQA. They even quoted a section of the State Code (obviously provided by the City Attorney) in their Staff Report, to support their claim.
The only problem was the citation was not applicable.
Community Venture Partners filed a comment letter, which exposed their error. What followed as a long sequence of fallacious arguments from the City as to why giving away by right zoning and parking bonuses, without evaluating impacts, was okay under CEQA. All of this had to be met with time consuming and costly push back by the public, through a series of letters from lawyers. It turned out to be an 18-month long struggle to force Mill Valley to adhere to State Law.
The more important question, however, is why would they try to get away with avoiding the law in the first place? It is simply seems inconceivable that the City’s highly paid Director of Community Development, Vin Smith, or City Manager, Jim McCann, or the City Attorney, Greg Stepanicich, did not know that the newly proposed zoning was not categorically exempt under CEQA.
Was staff trying to avoid public scrutiny of impacts? Were they trying to get around the fact that the City had no credible studies of traffic impacts, or parking impacts, or much else to justify their proposals? Or were they just trying to do as little work as possible and push through an agenda embraced by Housing and Community Development in Sacramento (“HCD”), in a way no one would notice, until it was too late to do anything about it (see How Did WinCup Happen?)?
I’ll let you decide.
The poker hand plays on
After their “cat ex” ruse failed, city staff published a threadbare Negative Declaration, which simply offered a checklist that, without evidence, concluded there were no significant impacts, which would require studies and analysis. When this was also challenged, they perversely argued that it was the public’s job, not theirs, to produce the analysis and studies showing there were significant impacts. This argument was again, wholly incorrect and any attorney with a shred of CEQA law knowledge would know that.
When this too was challenged, they tried to beef up their Negative Dec by adding paragraphs that essentially stated, “In our opinion, there are no significant impacts.” However, opinion is not evidence.
The back and forth continued.
CVP finally responded by producing renderings of what development proposals would look like using the proposed zoning guidelines, illustrating the visual, parking, and site development intensity impacts.
Becoming desperate, city staff then took the position that no impact studies were required because the issues had been covered in the General Plan Environmental Impact Report, a “program” EIR. They also maintained that impact studies were not required because there were no specific development projects addressed in the zoning ordinance, and any future project would be “subject to CEQA,” although everyone knows that it is extremely rare for an individual building proposal to be required to do an EIR.
This tactic is called “improper tiering” from a previous Program EIR. The problem with their claim was that the General Plan EIR did not contain any studies or analysis of impacts to “tier” off of.
I think you’re starting to get the Escher drawing logic being employed here by the City. All of the reasoning is circular without end.
Since that didn’t get them too far, either, staff told the Planning Commission and the City Council that the City “had to” approve “by right” multifamily zoning because the recent General Plan Housing Element had noted it as one of its “programs.” They presented it as a “we have no choice but to approve it or we’ll get in trouble with Sacramento” situation.
Once again, this had no basis in the law. “Programs” noted in General Plans are not adopted public policy. That is essentially why the city had to create a new zoning ordinance in the first place: to define a specific public policy that the City Council could vote on.
More Esher drawings.
Now the City Council went into “face saving” mode to protect staff and things took on an all too familiar kabuki theater feeling. Staff finally admitted they had no studies of parking or traffic to back their proposals, so everyone looked to the City Attorney for sage guidance. Could the City not include “by right” in the new zoning? Would HCD “allow” it? Wouldn’t we all “get in trouble?”
There was in fact, only one answer: The City could do whatever it wanted.
It is again inconceivable that the City Attorney did not know the answer to that, on the spot. Yet, as everyone sat in reverent silence, he responded with furrowed brow and in solemn tones that he would have to “research” this issue very carefully and would get back to them in a couple weeks.
Talk about justifying your hourly rate.
In the eleventh hour, both the “by right” provisions and the parking give-a-ways to developers were deleted from the ordinance. The City Attorney said it was okay. The Staff and the City Council gave each other generous kudos for being “responsive to the public.” However, I think it’s more likely that staff made the changes because without studies or evidence, the community had a strong legal case against them, if they moved forward.
But why choose this approach in the first place? Why start with trying to circumvent the law, keep the public in the dark, and get away with as much as possible, until you get caught?
Why does it take months of private effort and thousands of dollars in legal fees to get local government to conduct their business openly and honestly?
Is that really too much to ask?
But, what if the City’s actions were not intentional? What if there’s an even more worrisome explanation. What if despite the fact that Marin municipalities pay some of the highest salaries and benefits in the State, the staff really just doesn't know what they’re doing?
 The combined salaries and benefits of Mill Valley’s city manager and director of community development make up almost 2% of the city’s annual operating budget.
 Under CEQA the public must submit its comments and challenges during a very limited “public comment” period, prior to a city’s adoption of an ordinance, or they are forever precluded from challenging the ordinance in court on issues they failed to comment on.
 Improper tiering is claiming that a previously approved EIR already studied the possible impacts, when in fact it did not.
 Putting guidance and programs about “by right” in Housing Elements is greatly favored by HCD and almost guarantees certification by the State.