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Richard Hall, Planning for Reality

San Rafael Misled Into Abdicating Local Zoning Control

On the evening of Wednesday 12th May, San Rafael quietly began to move towards a new zoning format called "form-based codes." Adopting these types of zoning regulations will result in the City surrendering control of how many units are built in new development projects (to real estate developers), and instead only limit a project's overall height and bulk.

This proposed regulation was approved via an electronic vote by City General Plan meeting, attended by over 20 committee members (of which I was one) who were briefed by planner Raffi Boloyan. The approved proposal must still be enacted by the city council, but a general plan vote is highly influential.

Limiting unit numbers and density is the traditional way cities apply zoning codes. This provides the city with a way they can gauge and predict impacts upon residents and city services such as:

All of these cumulative impacts closely correlate with the number of living units / the number of "households" (an important count used by the U.S. Census) not overall building volume. Under a form-based system, a building of a given size could have 100 large units, or 300 small units and commercial space. Obviously, the impacts of these two examples would be quite different.

The New "Form Based Planning"

Form-based zoning abdicates the ability for San Rafael to limit unit numbers using zoning. The intent is that by limiting overall building volume instead of unit counts (defined as floor area ratio) it will encourage smaller, denser units, arguably helping to solve the "housing crisis." However, the outcome of this seems sure to have many unintended consequences. In addition, encouraging smaller or more affordable units (they are not the same thing) can be achieved by other means (i.e., the City already has the power to require unit mixes that include more small units or more affordable units).

New State Laws Mean Zoning is Key, Subsequent Review Can be Dismissed

A key assumption about density, which has changed due to recently enacted state assembly bills such as 1515, was never properly discussed at our meeting.

When I voiced concern about how increased unit numbers can cause excess impact on traffic, parking, schools etc., and that moving to a "form-based" system, would directly result in the city losing control of planning and impacts, I was abruptly and rudely dismissed by council member Maribeth Bushey-Lang.

Since the 1960s cities have had the authority to limit unit numbers of proposed developments. However, state laws have changed, specifically, by state laws such as AB 1515, as explained in detail in this article by Zelda Bronstein, a former Berkeley Planning Commissioner:

Density Zoning is a Defense Against Over Development

The new status quo is that if a developer proposes a building that meets general zoning requirements, e.g. floor area ratio (FAR) and height, and subsequent local review rejects it because high unit numbers affect traffic, parking, schools and city services, then the developer, or a proxy for the developer such as the highly active California Renters Legal Advocacy and Education Fund or CaRLA (a YIMBY led organization driven by special interests) can sue the City. And if the City loses the case, they are liable from legals costs and attorneys fees. Under newly enacted legislation, the likelihood of the City losing such a case has increased dramatically.

The risks are actually worse - if a court finds that a city acted in bad faith when it rejected or conditionally approved the housing development or failed to carry out the court’s order within 60 days, the court must multiply the fine by a factor of five. This could have devastating consequences. Not only can the city not effectively defend itself and represent residents concerns, if it tries and fails the financial damages could raise taxes not insubstantially or impact city provided services such as fire and police.

A developer can now more successfully argue their case by citing that their development proposal meets the overall zoning size allowed, but subsequent local planning review reduced the allowable unit numbers. The case can be won by the developer on the premise that zoning was met and that local control is not allowed authority to overrule that.

This important aspect was not brought up or discussed at the San Rafael steering committee meeting. Without this key information, the committee voted in favor of form-based zoning for downtown San Rafael, and further encouraged its adoption citywide .

Such a vote should be deemed invalid and this should not be a matter of record in the city's General Plan.

Feedback Welcome

Feedback and corrections welcome. I would welcome being wrong on this.

Former head of the Berkeley Planning Commission, Zelda Bronstein wrote of concerns of form based codes over a decade ago in her article Industry and the smart city.


housing, zoning