Community Venture Partners, Inc., a 501(c)(3) nonprofit corporation that works to bring the community’s voice to government decision-making, has filed the following appeal of the Mill Valley Planning Commission's approval of the Richardson Terrace project, located at 575 E. Blithedale Boulevard.
This appeal asks the Mill Valley City Council to reverse the Planning Commission’s erroneous decision because the project is not “consistent” with the requirements of the city’s General Plan and Zoning Ordinance, and applicable state law. Our goal is to provide the City Council with the legal analysis needed to support that conclusion and to assure the Council that they are well within their authority to require changes to the project and/or how it is being processed.
We support the need for more housing and commercial mixed-use development on the subject property, but in this instance, nothing in state housing law allows a private developer to ignore the goals, policies, and zoning regulations in our city’s General Plan and Zoning Ordinance or supersedes the requirement for a project to be "consistent" with those documents or to assess significant impacts under the California Environmental Quality Act.
Of note, the legal concepts and issues discussed in this appeal are of seminal importance and are relevant to numerous development projects throughout the state of California.
Community Venture Partners, a 501(c)(3) nonprofit community organization funded solely by individuals and nonprofit foundations. Please consider DONATING TO CVP to enable us to continue to work on behalf of Mill Valley residents.
Appeal of the January 10, 2023, Mill Valley Planning Commission approval of the Richardson Terrace project, located at 575 E. Blithedale Avenue, Mill Valley
Dear Mill Valley Council Members,
We are submitting this appeal of the Mill Valley Planning Commission’s decision to approve the Richardson Terrace project at 575 E. Blithedale Avenue (the “Project”). I am a resident of Mill Valley and President of Community Venture Partners, Inc. (CVP), a 501(c)(3) California nonprofit, community-serving organization located in Mill Valley that works to bring the public’s voice to government decision-making. This appeal is also submitted on behalf of the Freeman Park Neighborhood Association and Bingham Kennedy, a Mill Valley resident.
Our comments, submitted on November 10, 2022, and January 9, 2023, and the public comments in the administrative record submitted for the Planning Commission hearings of November 2022 and January 2023, and all attachments, are incorporated herein, by reference.
To be clear, CVP supports mixed-use development on the Richardson site. Our goals in submitting this appeal are to,
- Ensure that the Project and, consequently, the processing of the Project is consistent with the requirements of the Mill Valley General Plan and Zoning Ordinance and state law.
- Increase the percentage of smaller, low-income, “and affordable by design” units to better serve Mill Valley’s housing needs. Please note, we are not asking to decrease the Project’s density.
- Achieve a more compatible design with lessened height, bulk, and mass impacts, and increased traffic and pedestrian safety.
The City Council is well within its authority to reverse the Planning Commission’s approval of the Richardson Terrace project, as it was submitted, to require changes to the Project, and to deny its claim for “streamlined” approval and exemption from the California Environmental Quality Act (CEQA). This is well-supported by the record before you and policies, programs, and regulations in the Mill Valley General Plan, the Mill Valley Zoning Ordinance, the Mill Valley Municipal Code, state environmental and housing law, and state municipal governance law.
At their November and January meetings, the majority of the Planning Commissioners were clearly overwhelmed by the voluminous legal and technical complexities associated with the processing and approval of the Richardson Terrace project, as well as the conflicting opinions from city staff and biased warnings and legal intimidation from the state Department of Housing and Community Development (HCD) and the developer’s legal counsel. As a result, the members of the Planning Commission were led to believe they had no choices regarding the Project and that the City had to approve it as proposed.
It’s worth noting that the applicant’s position is based solely on legal argumentation. Nowhere does Mr. Richardson consider whether his proposal is in the best interests of the Mill Valley community or if it is the best use of the site to make progress toward our shared goals of providing affordable housing in our city. The Planning Commission clearly recognized that the best interests of the community would be served by imposing conditions on Richardson Terrace to increase the number of affordable dwelling units and mitigate negative environmental impacts on the community.
The Planning Commission’s approval of the Richardson Terrace project, as it was submitted, violates the California Environmental Quality Act (CEQA) and the goals, policies, and requirements of the Mill Valley General Plan and the Mill Valley Zoning Regulations in our Municipal Code and cannot be approved as submitted for the following reasons.
1. The Project is not “consistent” with the Mill Valley General Plan or the Zoning Ordinance.
2. The Project is not exempt from the requirements of CEQA
(a) The Project does not qualify for a Class 32 CEQA exemption
(b) The Project is not an “infill” site under CEQA: PRC 21061.3, 21071
(c) The Project does not qualify for a CEQA “Tiering” Exemption: Guidelines 15183
(d) The Project does not adequately assess cumulative impacts
3. The Project does not qualify for “streamlining” under SB 330 or the Housing Accountability Act (HAA)
4. Superior, financially feasible, mixed-use development options exist that would better address Mill Valley’s affordable housing needs
The City Council is vested with the responsibility to enforce the programs, policies, and regulations set forth in our General Plan and Zoning Ordinance and to fulfill our low-income and affordable housing Regional Housing Needs Assessment (RHNA) mandates. However, not even the City Council has the authority to capriciously contradict the General Plan or our Zoning Ordinance without a public process, as stipulated in our Municipal Code and state law.
As noted in the Staff Report for the January 10, 2023 Planning Commission hearing, the Mill Valley Planning Commission had and the Mill Valley City Council has the authority and discretion to “disagree” with the developer’s interpretation of the Project’s eligibility for streamlining approval under SB 330 and the HAA and to require changes to the Project proposal so long as the allowable density is not reduced. Similarly, the Mill Valley Planning Commission had and the Mill Valley City Council has the authority and duty to reject the claim of CEQA exemption and require the applicant to submit to a more comprehensive CEQA assessment process.
Therefore, based on the facts and circumstances presented herein, the City Council must reverse the approval by the Planning Commission and require the developer to either amend the Project proposal or resubmit the Project with a request for an amendment to the Mill Valley General Plan and the General Plan Land Use Map, and a change in property’s zoning designation and the Mill Valley Zoning Map, both of which would require a more comprehensive CEQA assessment process.
The decision before you is simple. The Council can either
affirm the Mill Valley General Plan’s goals, policies, and programs and the
Mill Valley Zoning Ordinance or capitulate to the unfounded threats and demands
of HCD and the developer’s profit motives.
Historical Community Engagement
This appeal is the result of more than a decade of significant public participation and comment regarding the development of mixed-use commercial/residential at 575 E. Blithedale Avenue. Throughout that time, the public record clearly shows that the direction given to the developer by Mill Valley’s Planning Department, Planning Commission, and public commentary has been consistent and voluminous and seeking to require the same changes we are requesting in this appeal. In each instance, the developer has summarily ignored all of this direction and commentary, only to return every few years with yet another identical or even more contradictory proposal. As summarized by former Planning Commissioner, Burton Miller, in his comment letter of January 7, 2023, incorporated herein, by reference.
“The project has a lengthy history of ignoring both community and City concerns. Former Planning Director Vin Smith stated emphatically in a meeting attended by the then City Manager, City Attorney, John Palmer, and me, that the City had informed Mr. Richardson that his recurring proposal (recurring meaning the same proposal resubmitted and resubmitted without change) was unacceptable because it was too large and impactful, and that he had to come back with "something different." So, Mr. Richardson simply waited for a change in Planning Director, a change in City Manager, a change in City Council, a change in Planning Commission, and changes in State housing law, only to submit a "new project'' still larger in size (floor area and density), more impactful, and even less responsive to City and community concerns.
Neither the developer’s dismissal of this entire history of commentary and direction nor current state housing laws constitute grounds for continuing to ignore the requirement for the Project to be consistent with the Mill Valley General Plan and Zoning Code.
Regarding HCD’s Comments
HCD’s letters to the Planning Commission on November 2, 2022, and January 9, 2023, threatened “severe legal consequences” if the City failed to approve the Richardson Terrace project. However, HCD’s claims are based on selected provisions of state housing law, without mention of the City’s obligations under CEQA. Under the statutes cited by HCD, those penalties threatened only apply to narrowly defined cases and city staff has failed to make this clear to the Planning Commission. The penalties threatened by HCD apply only to cities and counties that have either,
(1) failed to meet their RHNA quota in the last housing cycle or failed to have a certified housing element in place, or
(2) failed to approve a project that is consistent with the city’s General Plan and Zoning Ordinance, which the Richardson Terrace project, as submitted, is not.
None of these apply to Mill Valley. Mill Valley met its housing quota in the last housing cycle and is operating under a certified Housing Element, and the Richardson Terrace project is not consistent with the Mill Valley General Plan or the Mill Valley Zoning Ordinance.
As such, the Mill Valley City Council has full authority and discretion to require modifications to the Project, and reject its claim of exemption from CEQA and entitlement to streamlining, so long as the Council’s actions do not reduce the Project density or the number of affordable units, and particularly if the changes result in the percentage of low-income units increasing and development costs remain feasible.
The HCD letters to individual Planning Commissioners contain errors and conflate facts. For example, in their letter of January 9, 2023, they state,
“A project that meets the eligibility requirements of the SDBL [the State Density Bonus Law] is entitled to a density bonus, incentives/concessions, development standard waivers, and limited parking ratios (Gov. Code, § 65915, subd. (b)). The City must grant the specific incentives/concessions requested by the applicant unless the City makes written findings, based on substantial evidence, that the incentive/concession would (1) not result in a cost reduction, (2) have a specific adverse impact on health or safety (as defined), or (3) be contrary to state or federal law (Gov. Code, § 65915, subd. (d)). The City bears the burden of proof for the denial of a requested incentive/concession (Gov. Code, § 65915, subd. (d)(4)). The City is also strictly limited in denying requested development standard waivers, preventing it from applying any development standard that would physically preclude a project as proposed unless doing so would have a specific adverse impact on health or safety (as defined) which could not be mitigated (Gov. Code, § 65915, subd. (e)).”
Although statutory provisions are cited accurately, they are plainly irrelevant to the Richardson Terrace proposal or the decision before the City Council. Again, as explained in detail, herein, the Project, as submitted, is not consistent with the existing Mill Valley General Plan or the Mill Valley Zoning Ordinance.
This inconsistency is related to required conformance with the existing zoning designation, which is “commercial” not “residential.”
Equally, although it is correct to state that waivers of “development standards” can be required under the State Density Bonus Law, the HCD letter misstates and fails to define the term “development standards.” Under state housing law, “incentives, concessions, and waiver of development standards” do not include general plan amendments or rezoning. The State’s Density Bonus Law cannot be used to require waivers of prohibited land uses or inconsistencies with the General Plan or Zoning Ordinance. The State Density Bonus law cannot be used to change zoning designations or to interpret our General Plan and Zoning Ordinance. Therefore, HCD’s threats and arguments are not relevant in the case of approval of Richardson Terrace.
In Gov. Code § 65915(e)(1) of the State Density Bonus Law, a “development standard” is defined as:
“…a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies to a residential development” (Gov. Code § 65915(e)(1).)” [Emphasis added]
As noted by Pam Lee, a prominent land use attorney at Aleshire & Wynder LLP, San Francisco,
“A land use designation or restriction (i.e., zoning) dictates what type of uses can and cannot be put on a property, while a development standard dictates how each of those types of uses is to be developed, built, or improved. The preeminent California land use treatise, Miller & Starr confirms these basic principles: zoning ordinances regulate both “allowed uses of specific parcel of land [aka land use designation] and . . . the requirements for the development of improvement in accordance with the specific zoning designation [aka development standards].” (7 Miller & Starr, Cal. Real Est. § 21:3 (4th ed.).)” [Emphasis added]
This is, of course, logical because if the State Density Bonus Law overruled zoning laws, then developers could build housing anywhere they pleased. Also, HCD’s comments about the Housing Accountability Act (HAA) requiring “objective design standards,” again, though accurate, are equally unrelated to the requirement that the Project be “consistent” with a General Plan or Zoning Ordinance and that the property is zoned primarily for commercial uses.
Finally, HCD’s comments on the State Density Bonus Law, which precludes the City’s ability to reduce the Project’s density, are not at issue regarding this appeal. Ironically, the arguments, requirements, and policy suggestions made in this appeal will better accomplish HCD’s housing mandates and result in more affordable housing for those most in need in Marin, than will result from acquiescing to their demands.
STATEMENT OF APPEAL
We are appealing the Mill Valley Planning Commission’s decision to approve the Richardson Terrace project at 575 E. Blithedale Avenue on the grounds that:
1. THE PROJECT IS NOT “CONSISTENT” WITH THE MILL VALLEY GENERAL PLAN AND ZONING ORDINANCE.
To be eligible for the benefits claimed by the applicant under state housing laws and an exemption from the California Environmental Quality Act (CEQA), a project must be consistent with the city’s General Plan and Zoning Ordinance. Richardson Terrance is inconsistent with both.
The subject property’s designation in both the Mill Valley General Plan (in the Land Use Element and on the Land Use Map) and the Mill Valley Zoning Code and Zoning Map are “commercial” zoning, not residential zoning. Residential use is permitted, but only as a secondary, conditional use, requiring approval of a conditional use permit. Residential use is not permitted as of right.
To be eligible for streamlining, a project proposal must be “consistent” with the existing General Plan’s land use zoning designation at the time of its submission. According to the Mill Valley General Plan, Table 2.2, “General Land Use Categories,” and as shown on the General Plan Land Use Map, found on pages 24 and 25 of the Mill Valley 2040 General Plan, the Project is located on a parcel of land that is designated as “CN – Neighborhood Commercial” zoning. (i.e, not “residential”)
Although there is an apparent inconsistency, it is clear under both the General Plan and the Zoning Code that the designated land use permitted for the property “commercial” not “residential use.
Under the CN designation in the Mill Valley General Plan, Figure 2.4: General Plan Land Use, the conditions for residential use include,
Table 2.2, General Plan Land Use Categories, describes CN Zoning as follows:
“Lower Miller Avenue area from 1989 General Plan, plus P-A zoned areas on East Blithedale Avenue and Camino Alto; personal, business, and medical services; local-serving retail; and residential units above or behind the ground floor.” [Emphasis added]
In addition, the limitations under C-L zoning (found in the Zoning Ordinance) are even more restrictive than the CN zoning designation. Under 20.36.010 Purpose and Intent, of the Mill Valley Zoning Code, it states,
“The Limited Commercial (C-L) districts can accommodate residential and mixed-use land uses at densities in accordance with the adopted Land Use Map, and accommodate mixed-use with offices or commercial and small-scale multi-family residential developments. (Ord. 1278 § 12, July 18, 2016)” [Emphasis added]
Here, the Zoning Code makes the specific point of stating that residential multifamily development should be “small-scale,” clearly indicating that residential uses shall be secondary uses, not the primary use on a C-L zoned parcel. This stipulation about “residential” conditional use is consistent with the intentions of the General Plan’s CN zoning designation and other sections of the Mill Valley General Plan and related regulations.
In determining the Project’s qualifications needed in order to be deemed consistent with C-L zoning, consider that the Project documents indicate that it includes a total of 36,614 square feet of developed space of which 34,550 square feet is residential use (94.4%) and 2,046 square feet is commercial use (5.6%). It is therefore inconceivable that the Project’s residential uses, which will rise more than 5 stories from the street entrance level, can be reasonably found to be “small-scale.”
It would therefore be incorrect to claim that the Project is “consistent” with the city’s General Plan or Zoning Ordinance. It is primarily a “residential” project with only very minor, ancillary commercial space included.
The “preponderance of evidence” found in the historical record and minutes of public workshops and Planning Commission and City Council meetings for the Project in the past decade, also clearly indicates that the subject parcel was not zoned “multi-family residential” with commercial uses being an ancillary, conditional use, but was intentionally zoned for commercial use with residential being the secondary, conditional use.
At the time that the 2040 Mill Valley General Plan was drafted, the Richardson parcel was the subject of extensive discussion and deliberation on just this subject. Burton Miller and I, along with many of the Mill Valley residents on whose behalf this appeal is filed, participated in the public hearings and discussions regarding the planning and zoning for the city.
We can attest to the fact that the clear intention of the City’s designation of the Richardson parcel as CN zoning was always for the parcel to be developed primarily as a “commercial use” in order to “complete” the character and uses of the E. Blithedale Avenue/Camino Alto Avenue intersection, which was and is one to two-story commercial developments on all 4 corners. Thus, its zoning is for commercial use.
If the city’s intentions had been otherwise, both the Mill Valley General Plan and the Zoning Code would reflect that. Neither does. If there is any question about the legislative intent underlying the creation of the CN zone and the Richardson parcel, I urge staff to examine those records to resolve this question.
These facts considered, the Mill Valley City Council is fully within its authority to find that the Project is “inconsistent with the General Plan land use designation” and the Mill Valley Zoning Ordinance and Zoning Map. As a result, Richardson Terrance is not eligible for a CEQA exemption or “streamlined” approval under state housing laws.
2. THE PROJECT IS NOT EXEMPT FROM THE REQUIREMENTS OF CEQA
The California Supreme Court has consistently ruled that the housing laws have not superseded CEQA and recognized the need for environmental review of proposed projects. CEQA was enacted to,
(1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, those impacts; (3) require project changes through alternatives or mitigation measures when feasible; and (4) disclose the government's rationale for approving a project.
CEQA must be interpreted "to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259; see also Sierra Club v. County of Fresno, (2018) 6 Cal.5th 502, 511. We also consider the Legislature's objectives: to reduce or avoid environmental damage by requiring project changes when feasible. Protecting Our Water & Environmental Resources v. County of Stanislaus, 10 Cal.5th 479, 488, 496 (2020).
The California Supreme Court and appellate courts have repeatedly confirmed the analytical approach to address projects which may be subject to CEQA’s requirements. Under CEQA, if a proposed activity is a “project,” as defined, the city must determine if it qualifies as an exemption created by the statute itself or by the regulatory Guidelines in the Code of Regulations adopted under the authority of CEQA. California Building Industry Association V. Bay Area Air Quality Management District, 62 Cal.4th 369, 382 (2015).
By statute, “ministerial” projects are exempt from CEQA, which applies only to "discretionary projects proposed to be carried out or approved by public agencies ...." (Pub. Resources Code, § 21080, subd. (a), italics added.); McCorkle Eastside Neighborhood Group v. City of St. Helena, 31 Cal.App.5th 80, 89 (1st App. Dist. 2018); Guidelines 15002(i), 15268.
To determine whether a function is ministerial or discretionary, courts have developed a functional test. The touchstone is whether the approval process allows the government to modify the proposal in any way to respond to concerns that might be identified by environmental review. McCorkle, supra, at 89-90. See also Mission Peak Conservancy v. State Water Resources Control Bd., 72 Cal.App.5th 873, 881 (1st App. Dist. 2021)
Richardson Terrace requires a conditional use permit. Its approval contemplates the review of the application using sound principles of zoning and planning and is discretionary by nature. McCorkle, supra, at 85.
Approval of the project requires the exercise of judgment and discretion. The Guidelines provide examples of land use decisions presumed to be ministerial, such as issuing building permits and business licenses or approving utility service connections. Guidelines 15268(b). When a project involves both discretionary and nondiscretionary actions, it will be deemed discretionary. McCorkle, supra, at 90; Guidelines 15268(d).
The concerns that might be identified by an environmental review are indicated by the required contents of an Environmental Impact Report (EIR), which include, among other things,
(3) Discussion and analysis of the project's potentially significant impacts to the physical environment, including cumulative impacts when considering the project's impacts in light of other pending or planned projects' impacts. (§ 21100, subd. (b); Guidelines, §§ 15126.2, subd. (a), 15130.) (4) Discussion of feasible mitigation measures and project alternatives that could lessen or avoid the project's significant environmental effects. (§ 21100, subd. (b)(3), (4); Guidelines, §§ 15126.4, subd. (a)(1), 15126.6; see 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2nd ed.) § 11.2 (Kostka & Zischke).) League To Save Lake Tahoe Mountain Etc. v. County of Placer, 75 Cal. App.5th 63, 82 (3rd App. Dist.2022) [Emphasis added]
An environmental review should describe physical conditions from a local and regional setting. Id. at 92. In addition,
“The EIR must describe the project's direct and reasonably foreseeable indirect environmental effects and analyze them in both the short term and the long term. (Guidelines, §§ 15126.2, subd. (a), 15064, subd. (d).) It should emphasize the specific effects in proportion to their severity and their probability of occurrence. (Guidelines, § 15143.) The EIR must also analyze the project's cumulative impacts. A cumulative impact on the environment is an impact created as a result of the combination of the project's impacts with other projects causing related impacts. (Guidelines, § 15130, subd. (a)(1).) The EIR must analyze a project's cumulative impacts when the project's incremental effect is cumulatively considerable.” (Guidelines, § 15130.) Id. at 92 [Emphasis added]
Under CEQA, an individual project's contribution to a cumulative impact is "cumulatively considerable" if the project's incremental effects "are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." Id. at 148. [Emphasis added]
The evidentiary threshold to trigger the need for an EIR is low. To deny a CEQA exemption does not require evidence beyond a preponderance of substantial evidence in the record. CEQA requires the preparation of an environmental impact report if "substantial evidence supports a fair argument" that a proposed project may have a significant effect on the environment, even if there is also substantial evidence it will not. California Renters Legal Advocacy & Education Fund v. City Of San Mateo, 68 Cal.App.5th 820, 583n.4 (1st App. Dist. 2021). [Emphasis added]
2 (a) The project does not qualify for class 32 CEQA exemption
Richardson Terrace is not consistent with General Plan, policies, and zoning: Guidelines 15332(a). To qualify for a CEQA Class 32 exemption, a proposal must be consistent with all of
“the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.”
As noted above, the Project fails this fundamental test and, therefore, does not qualify for a Class 32 exemption.
2 (b) THE PROJECT IS NOT AN “INFILL” PROJECT UNDER CEQA: PRC 21061.3, 21071.
The “infill” exemption on which Richardson relies was created by regulation and defined in the CEQA Guidelines 15332, as follows:
15332. IN-FILL DEVELOPMENT PROJECTS
Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section.
(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.
(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses.
(c) The project site has no value as habitat for endangered, rare or threatened species.
(d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality.
(e) The site can be adequately served by all required utilities and public services. [Emphasis added]
However, the term “infill site” is defined by statute, as follows:
§ 21061.3. INFILL SITE
“Infill site” means a site in an urbanized area that meets certain criteria: [Emphasis added]
The statute (PRC 21071) defines “urbanized area” as either of the following:
(a) An incorporated city that meets either of the following criteria:
(1) Has a population of at least 100,000 persons.
(2) Has a population of less than 100,000 persons if the population of that city and not more than two contiguous incorporated cities combined equals at least 100,000 persons.
(b) [certain unincorporated areas]. PRC section 21071.
These definitions of “infill” and “urbanized area” are directly from the CEQA statutory language enacted by the Legislature. They were first enacted in 2008 and 2002, respectively (Stats. 2008, Ch. 728, Sec. 13; Stats. 2002, Ch. 1039, Sec. 5.), and they have not been amended since then. They are currently in Chapter 2.5, Division 13 of the Public Resources Code, and the California Supreme Court has recognized those definitions are “statute-wide” definitions. California Building Industry Assn. v. Bay Area Air Quality Management Dist., 62 Cal.4th 369, 387 (2015).
CEQA specifically provides that these definitions govern the use of these terms throughout the statute “Unless the context otherwise requires, the definitions in this chapter govern the construction of this division” and “this division” is identified as “the California Environmental Quality Act.” PRC 21060, 21050.
It is axiomatic that no regulation is valid if its issuance exceeds the scope of the enabling statute. Wildlife Alive v. Chickering, 18 Cal.3d 190, 205-06 (1976).
“The secretary is empowered to exempt only those activities which do not have a significant effect on the environment. (Pub. Resources Code, § 21084.) It follows that where there is any reasonable possibility that a project or activity may have a significant effect on the environment, an exemption would be improper.”
The statutory definitions of “infill” and “urbanized area” are therefore binding in the interpretation of CEQA and the Guidelines and their application to Richardson Terrace.
The legislative history of the definition of “urbanized area” confirms the legislative intent to limit infill projects to cities with a population over 100,000:
“CEQA provides for various exemptions from the requirements of the act relating to housing.… This bill [cite] would recast, recodify, and consolidate those exemptions. The bill would revise the definition of an urbanized area for purposes of those provisions to include any incorporated city with a population of at least 100,000 persons or an incorporated city of less than 100,000 persons if the population of that city and not more than 2 contiguous incorporated cities combined equals at least 100,000 persons.” Stats. 2002, Ch. 1039, Summary Digest.
Since a Class 32 Categorical Exemption is defined as an “infill project”, under the statutory definition of that term the exemption is applicable only in an “urbanized area”. The term “urbanized area” is defined to cover only cities with a population above 100,000. Since the population of Mill Valley is far below 100,000, a Class 32 exemption is not available for Richardson Terrace.
Applying the statutory requirements of CEQA and the Guidelines to Richardson Terrace, it is clear that the project is not eligible for an exemption.
Several public comments submitted to the Planning Commission argued that an “infill project” can be located only in a city with a population over 100,000, citing Guidelines sections other than 15332. Staff has dismissed those arguments summarily, suggesting that they are irrelevant as based on sections of the Guidelines on which Richardson Terrace does not rely. But staff have ignored the definition of “infill” project in the statute which limits all infill projects to cities above the threshold of 100,000.
The overly broad interpretation suggested by staff would extend this CEQA exemption to every “city” in California and makes little sense in the context of California land use planning. There are 1,571 municipalities organized as “cities’ under California law.
Seventy-six of those have a population over 100,000, with a combined population of more than 20 million. As the legislative history indicates and the statutory definitions require, the goal of authorizing “infill” development is to allow projects in urban areas in relatively large municipalities to proceed without any environmental review.
The interpretation suggested by Staff would extend the availability of a Class 32 exemption to the 1,495 cities with populations below 100,000, even including Poso Park, with a population of 3 residents. Of course, the other requirements for a Class 32 Exemption, discussed below, might save the folks in Poso Park, but how many other small “cities” would fall under the HCD axe?
Richardson Terrace is located in the Wildlands Urban Interface (the “WUI”)
The Richardson Terrace property and all contiguous properties are designated as being in the WUI by the Southern Marin Fire Department fire hazard maps. Title 15 of the Mill Valley Municipal Code states that the WUI designation carries with it heightened fire hazard risks and restrictions. As such, the property is subject to an environmental risk that should be evaluated in an EIR.
2 (c) THE PROJECT DOES NOT QUALIFY FOR A CEQA TIERING EXEMPTION: GUIDELINES 15183.
The applicant has claimed a CEQA exemption because any environmental review can “tier” off of the 2013 Housing Element/General Plan EIR, relying on a Checklist and several consultant’s reports, some of which are now almost a decade old.
The basic concept of this exemption is clearly expressed in the legislative history:
“CEQA limits its application, in the case of the approval of a subdivision map or a project that is consistent with the zoning or community plan for which an EIR was certified, to effects upon the environment that are peculiar to the parcel on which the project is located and were not addressed as significant effects in the EIR or if new information shows the effects upon the environment will be more significant than described in the prior EIR.” SB 226, Ch. 469 (2011), Legislative Counsel's Digest.
Guidelines 15183(b) requires an assessment of environmental effects as follows:
“In approving a project meeting the requirements of this section, a public agency shall limit its examination of environmental effects to those which the agency determines, in an initial study or other analysis:
(1) Are peculiar to the project or the parcel on which the project would be located,
(2) Were not analyzed as significant effects in a prior EIR on the zoning action, general plan, or community plan, with which the project is consistent,
(3) Are potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action, or
(4) Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR.” [Emphasis added]
In addition to the requirements identified above, another important requirement is identified in section 15183(j):
“This section does not affect any requirement to analyze potentially significant offsite or cumulative impacts if those impacts were not adequately discussed in the prior EIR.”
Under these standards, Richardson Terrace is not eligible for an exemption.
2 (d) THE PROJECT DOES NOT ADEQUATELY EVALUATE CUMULATIVE IMPACTS
Due to unprecedented increases in the state-mandated RHNA quotas for Mill Valley, the Richardson Terrace development will likely have more cumulative and unassessed, “significant effects relating to traffic, noise, air quality, or water quality,” Guidelines15332 (d) than were evaluated in the EIR certified in 2013. In fact, the CEQA process that the city has chosen to evaluate the potential environmental impacts of the new Housing Element for the 2023-2031 cycle, affirms this.
CEQA stipulates that tiering cannot be used in situations where there have been significant changes in the facts and circumstances. When the current General Plan EIR was completed in 2013, RHNA quotas were approximately 20% of what they are now. Mill Valley’s RHNA housing quota for the 2023 to 2031 housing cycle is unprecedented and far surpasses any quota numbers from the past. This increased number of housing units that must be zoned for in Mill Valley was unforeseeable in 2013.
Circumstances have changed since then. To be specific:
- The 2013 EIR assumed that the “built-out” condition of the city would remain unchanged. FINAL – CERTIFIED Environmental Impact Report (Mill Valley 2040 General Plan, at 2-9, 3.8-4, 3.11-27, 6-2, 6-4, 7-3). By continuing the pre-existing land use designations and allowable densities the General Plan would preclude “the possibility of population growth inducement.” Id. at 7-4. As a result, the population was expected to increase by only 12% by 2040, a period of 27 years. (Now the RHNA has mandated a 12% population increase in just 8 years.)
- Regarding land use, the city deleted terminology that would have expressly encouraged the development of second units and senior housing. Id. at ES-3, 5-2, 5-6. The EIR noted that adopting these measures as part of a “Population Growth Alternative” to the proposed General Plan would “increase the severity of transportation impacts” and “have greater transportation impacts” than the proposed General Plan. Specifically, the General Plan rejected a strategy of “infill development” in part due to the negative traffic impacts on East Blithedale and other primary roadways. Id. 5-15
- Regarding transportation, the EIR noted,
“A key change contained in the Mobility Element of the 2040 General Plan includes amending the minimum Level of Service (LOS) values to accept LOS E-plus conditions at E. Blithedale Avenue/Camino Alto, and LOS D at all other signalized intersections. Id. at 5-2. This change reflects the desire to avoid widening intersections in a manner that may adversely affect other modes of transportation (e.g., bicycles, pedestrians, or transit), or negatively affect the City’s character.” Id. at 2-9.
Thus the city made a conscious choice to accept a certain level of traffic impact. Today that decision needs to be revisited, based on a thorough environmental review.
- It concluded that, despite the decision to avoid substantial roadway improvements, the traffic impacts would be less than significant and did not require mitigation. Id. at ES-15.
- It acknowledged a community goal to “Maintain a well-functioning roadway network that provides for the safe and efficient flow of vehicular traffic.” Id. at3.11-19.
- It projected that by 2035, traffic volume on East Blithedale would increase by only 8-9%, most of which would not be attributable to additional residential development. Id. at 3.11-22. Overall the EIR projected a traffic increase of only 7.8-12.8% by 2035, a period of 22 years.
Obviously, circumstances are now very different, and few of the assumptions, projections, and conclusions summarized above are a reliable basis for land use decisions going forward. Because of this, the city is now in the process of finalizing a “Draft Supplemental EIR” for the new Housing Element and consequential amendments to the General Plan of 2015, which according to Patrick Kelly, our Planning Director, will be published for circulation and public comment in the coming weeks.
The draft Housing Element was submitted to HCD on August 23, 2022; it was severely criticized by HCD in a letter in November of 2022, which demanded numerous changes to establish that Mill Valley will actually reach its RHNA by the statutory deadline. Obviously, the status of the city’s land use planning, and its General Plan in particular, are very uncertain and in a state of flux. Despite this uncertainty, by requesting a “tiering” exemption from CEQA the Richardson Terrace, the applicant suggests that the analysis of the 2013 EIR is a sound basis for assessing Richardson Terrace and the other projects currently in progress or foreseeable in the state-mandated future.
The implications of this relating to the Richardson Terrace project are obvious. The fact that the city determined that it was necessary to undertake the creation of a new Draft EIR to assess the new impacts of the new, increased, state RHNA housing quota numbers for Mill Valley is clear evidence that the City has determined that the 2013 EIR was inadequate to fully assess the “reasonably foreseeable” impacts of new development (as stipulated in CEQA regulations) that will result from the dramatic RHNA increases, which includes cumulative impacts such as traffic impacts on public safety.
As such, the City’s claim of tiering for the Richardson Terrace project, to avoid a proper CEQA assessment of the direct and cumulative impacts of this development proposal, is unsupportable by the City’s own decisions, findings, and the evidence at hand.
With regard to traffic impacts in particular, the issue is not merely one of inconvenience. It is a matter of traffic safety. The critical question is not whether drivers will need to wait a little longer at intersections; the issue is the potential increase in accidents and injuries that may result from a dramatic increase in the volume of traffic.
The 2013 EIR was certified and the General Plan was adopted, even though the EIR specifically concluded that the most environmentally beneficial option would be to improve the roadways to accommodate more traffic. Id. at 5-13. Nothing in that decision, however, indicates that the city has approved a plan to accept a dramatic increase in the population of about 12% in just 8 years, with a corresponding increase in traffic volume, without analyzing the impact on the safety of the community.
It is conceivable that a new project EIR would present differing analyses and the community would reach a different conclusion today. That’s the purpose of the EIR process.
The “575 East Blithedale Project Traffic Review,” by PHA Transportation Consultants, Pang Ho, dated October 30, 2022 (Attachment G), experts in the field, contained comments and recommendations, as follows:
“Approved Development Projects
- Neither the Transportation Impact Report nor the Traffic Operations Report discussed whether or not there are recently approved but not yet built projects, and any other proposed development projects in the study area. These approved and proposed projects could add traffic to the study and impact traffic operations. [Emphasis added]
- Investigate and identify any other approved and proposed projects in the area. If there are such projects, create a short-term traffic scenario to address their cumulative impacts in the study area. [Emphasis added]
“Future Traffic Forecasts
- The future traffic volumes used in the traffic operations analyses were based on the 2013 Mill Valley General Plan 2035 build-out conditions. The forecasts were made well before 2013 and are old. [Emphasis added]
- Re-evaluate the future intersection traffic LOS with the latest traffic forecasts. TAM (Transportation Authority of Marin County) should have the up-to-date 2040 traffic forecasts. Letter to John Palmer, October 30, 2022, at 4-5” [Emphasis added]
With regard to traffic safety, the city’s traffic consultant has suggested that there have been no reported accidents at the point on East Blithedale where it narrows to one lane, very near the point where the easterly drive to Richardson Terrace would intersect. While that may be the case, there are numerous accidents at that point, which have been observed by personnel and patients at Mill Valley Physical Therapy. Some of the treatment rooms directly overlook that point of the roadway, and they have witnessed numerous accidents.
With regard to the traffic impacts of Richardson Terrace, though the staff has limited its focus to the vehicle miles traveled (VMT), as required by statute for certain purposes, the traffic impacts raise issues of safety, and nothing in SB 743 (2013) requires the city to ignore health and safety impacts.
Analysis by staff and a consultant that VMT analysis shows an increase of only a small percentage increase per person, but even that increase per person, combined with an increase of at least 12% in the total population, could have serious consequences unless mitigated. Yet the attorneys for Richardson Terrace suggest that the state housing laws bar the city from addressing the issue or considering mitigation measures.
Currently, the average household in Mill Valley has 2 cars available to it. See:
It seems self-evident that a dramatic increase in traffic volume, mandated by HCD and the RHNA, on the relatively narrow streets of Mill Valley, with only two major routes into and out of the city, may well generate a sharp increase in accidents. An EIR is needed to address these issues.
Richardson Terrace will have “significant effects relating to traffic, noise, air quality, or water quality.” Guidelines15332 (d)
Numerous cumulative impacts resulting from the Richardson Terrace project are reasonably foreseeable.
In determining whether an impact is significant, an environmental review must consider “cumulative impacts when considering the project's impacts in light of other pending or planned projects' impacts”. An individual project's contribution to a cumulative impact is "cumulatively considerable" if the project's incremental effects "are significant when viewed in connection with …the effects of other current projects, and the effects of probable future projects." PRC 21083 (b)(2). See also Guidelines 15355.
In light of the state mandate for 865 housing units within 8 years, and the current proceedings for other projects in Mill Valley, it is clear that the environmental effects of Richardson Terrace must be assessed in light of the other projects which are not only probable but state-mandated.
Again, as noted above,
The EIR must describe the project's direct and reasonably foreseeable indirect environmental effects and analyze them in both the short term and the long term. (Guidelines, §§ 15126.2, subd. (a), 15064, subd. (d).) It should emphasize the specific effects in proportion to their severity and their probability of occurrence. (Guidelines, § 15143.) The EIR must also analyze the project's cumulative impacts. A cumulative impact on the environment is an impact created as a result of the combination of the project's impacts with other projects causing related impacts. (Guidelines, § 15130, subd. (a)(1).) The EIR must analyze a project's cumulative impacts when the project's incremental effect is cumulatively considerable. (Guidelines, § 15130.) Id. at 92 [Emphasis added]
Under CEQA, an individual project's contribution to a cumulative impact is "cumulatively considerable" if the project's incremental effects "are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." Id. at 148. [Emphasis added]
Moreover, the evidentiary threshold to trigger the need for an EIR is low. CEQA requires the preparation of an environmental impact report if "substantial evidence supports a fair argument" that a proposed project may have a significant effect on the environment, even if there is also substantial evidence it will not. California Renters Legal Advocacy & Education Fund v. City Of San Mateo, 68 Cal.App.5th 820, 853n.4 (1st App. Dist. 2021)
The cumulative impacts of the Richardson Terrace project need to be assessed, as follows:
2022 CEQA Guidelines, Section 15183, (a), states,
“CEQA mandates that projects which are consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site.” [Emphasis added]
Since it has been shown that the Project fails to qualify for CEQA exemption because it is inconsistent with the Mill Valley General Plan and the Mill Valley Zoning Code and equally fails to qualify for CEQA “tiering,’ the potential for unmitigated, significant impacts must be fully assessed in a comprehensive CEQA process.
For the Richardson Terrace project, these would include but are not limited to;
“Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant.”
Please note, cumulative impacts also include traffic impacts. See the 575 East Blithedale Project Traffic Review, by PHA Transportation Consultants, Pang Ho, dated October 30, 2022 (Attachment G)
Per the CEQA Guidelines, significant impacts affect the eligibility for categorical exemption as follows:
“Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”
These impacts can include impacts on water, air quality, species, traffic, public safety, and others.
As noted above, evidenced-based findings must be made to determine the extent to which these requirements are applicable. Neither the city nor the applicant has made evidence-based findings about the impacts noted, above. The Initial Study Checklist simply states conclusions without supporting evidence, therefore the Project fails this requirement for eligibility for categorical exemption.
For more commentary and analysis regarding CEQA compliance and impacts, please see the attached “Supplemental Comment” letter by Bingham Kennedy, dated January 9, 2023; (Attachment E); the “Friends of Kite Hill” comment letter by Alecia Cotton, Esq. of Rogers Joseph O’Donnell, dated November 15, 2022 (Attachment F);the “575 East Blithedale Project Traffic Review,” by PHA Transportation Consultants, Pang Ho, dated October 30, 2022 (Attachment G); and the 2022_CEQA_Statue_and_Guidelines found at this link, (https://www.califaep.org/statute_and_guidelines.php). (Attachment I), which are all incorporated, herein, by reference.
3. THE PROJECT DOES NOT QUALIFY FOR "STREAMLINING" UNDER SB 330 OR THE HOUSING ACCOUNTABILITY ACT
The facts, comments, and citations noted in Section 1. The Project is not “consistent” with the Mill Valley General Plan or the Zoning Ordinance above, are incorporated here and substantiate why the Project is not eligible for “streamlining” approval process under SB 330 and the HAA.
In addition, several of the housing statutes relied upon by the applicant explicitly defer to the requirements of CEQA and the need to mitigate environmental effects identified under it.
The Housing Accountability Act, which generally requires a city to subject a housing development project to only those ordinances, etc., in effect at the time an application is submitted, contains an important exception when subjecting the project is
“necessary to avoid or substantially lessen the impact of the project under" CEQA. SB 330, section 3; Gov. Code 65589.5(o)(2))C).
The same section provides
“(6) This subdivision shall not restrict the authority of a public agency or local agency to require mitigation measures to lessen the impacts of a housing development project under the California Environmental Quality Act. Gov. Code 65589.5(o)(6).”
Similarly, other sections of SB 330 explicitly defer to CEQA by providing that nothing therein
"supersedes, limits, or otherwise modifies the requirements of, or the standards of review pursuant to" CEQA. E.g., SB 330, sections 4, 5, 13; Gov. Code 65905.5(d); 65913.10(c)(1); 66300(h)(1).
Section 13 of SB330 also explicitly authorizes the adoption or amendment of a development policy, standard, or condition in a manner that allows greater density, facilitates the development of housing, or imposes or implements mitigation measures necessary to comply with CEQA. SB 330, section 13; Gov. Code 66300(f)(3).
As such, the City Council has the authority to take the actions recommended in this appeal and the developer’s claim of eligibility for streamlining review is unsupportable.
4. SUPERIOR, FINANCIALLY FEASIBLE, MIXED-USE PROJECT OPTIONS EXIST THAT BETTER ADDRESS MILL VALLEY'S AFFORDABLE HOUSING NEEDS
Superior alternatives exist that would increase the percentage and types of low-income and affordable housing units, which the Mill Valley community actually needs. This is evidenced by conversations we have had with local landlords and business owners who wish to secure housing for their employees and seniors.
Regarding the proposed unit mix, consider that only 42% of California’s adult population is married and only 2/3 of those have children living with them. The other 58% are single, divorced, separated, widowed, or something else. Many of these are single parents or in cohabitation arrangements. Recent studies suggest that 22% of working adults in California work remotely and another 15% have a mix of working remotely and working outside the home. Many are gig workers, sole proprietors, small business service providers, entrepreneurs, and ‘working people’ who do manual labor and trades and need trucks, equipment, and tools to make a living.
The vast majority of this group qualifies for low-income housing.
We need to build more housing to address their needs. But California state housing policies fail to address this. Similarly, typical, large nonprofit or for-profit developers are driven by a checklist of unquestioned design ‘norms’ dating back to the 1970s that define what a ‘family’ is and what ‘work’ and ‘leisure’ mean: prevailing ideals that end up being no one’s experience in real life, but rather something apartment tenants settle for in the hope of someday living in a ‘real’ home.
Today, many people lead unconventional or alternative lifestyles. They don’t go to an office every day to a 9 to 5 desk job but instead work odd hours or from home or part-time, remotely, or are creative spirits or craftspersons or whose life includes a variety of hobbies, side-hustles, and other activities and endeavors.
None of this is considered in multifamily housing proposals like the Richardson Terrace project.
Demographics have also changed, dramatically. There’s a new class of seniors who could be called the ‘active elderly,’ who fall somewhere between old enough to retire but not nearly ready to consider senior housing communities or the need for assisted living or nursing care. And their numbers are growing rapidly.
At the other end of the ‘barbell,’ there is a largely un-housed young adult demographic that is priced out of every local housing market, particularly Mill Valley. But neither of these two demographics needs the traditional floor plans found in the Richardson Terrace proposal.
The active elderly singles and couples want better kitchens and open floor plans for leisure and entertaining, a home office space, a small guest room (for when the kids visit), and perhaps more usable, private outdoor space for plants, pets, and gardening. They are also candidates for well-designed studio apartments.
The young adult demographic—singles, couples, single parents, and cohabitants--are more focused on adequately sized individual rooms (better for cohabitation, having young children, and working remotely), compact layouts, state-of-the-art technological features, multi-purpose areas, and more storage for all their sports equipment and stuff. They are good candidates for live/work opportunities, lofts, micro-units, and other, more flexible/adaptive living spaces. Green construction and energy-saving/cost-saving design, appliances, and fixtures are also becoming a high priority for all.
Unfortunately, the Richardson Terrace proposal is mostly catering to traditional, higher-end condo buyers and tenants.
The subject parcel has significant potential for superior design solutions that would be far less impactful (the same or even greater density with smaller and more varied unit types), while better addressing the goals and needs elaborated above and meeting our RHNA housing obligations. There are very few viable housing opportunity sites in Mill Valley and few sites as visually impactful as this, which is why we can’t allow it to be wasted on building inappropriately designed non-community-serving, out-of-scale, and generally unaffordable housing.
Considering the need to maximize cost-effective construction methods to ensure financial feasibility, this is an excellent candidate for modular, prefabricated construction. Fortunately, we now have a major provider of that product in the SF Bay Area (Factory OS on Mare Island) and these techniques are already being utilized for the new housing development at San Quentin, in San Rafael.
The result would evoke Mediterranean hill towns with stores, professional office, and commercial spaces for service providers at street level and a variety of housing unit types set at varying levels, above, gently stepping up the slopes and around mature heritage trees -- rectilinear, stucco and wood forms in muted earth tones with plantings and greenery overflowing from trellised decks and planters: the entire development powered by rooftop solar panels.
Finally, we need to ask ourselves if this Project represents who we are as a community.
As it is, the Richardson Terrace proposal flies in the face of everything the Mill Valley community stands for, which includes concerns about climate change, implementation of zero-carbon alternative energy technology, incorporating state-of-the-art green building materials and methods, and first and foremost social equity, inclusion, and maximizing opportunities to provide low-income and affordable housing for younger residents, seniors, service workers, and others most in need among us.
As submitted, the Richardson Terrace project does not qualify for streamlining under the provisions of SB 330, the HAA, or CEQA, nor does it qualify for an exemption from a full CEQA assessment process.
The Mill Valley City Council has the authority and discretion to reject the developer’s assertion of the Project’s eligibility for streamlining approval under SB 330 and the HAA and require changes to the Project proposal so long as the allowable density is not reduced. Similarly, the Mill Valley City Council has the authority and discretion to disagree with the claim of CEQA exemption and require the applicant to submit to a more comprehensive CEQA assessment process.
Based on the facts presented, herein, the City Council must set aside the approval by the Planning Commission and require the developer to either amend the Project proposal or, at a minimum, resubmit the Project with a request for an amendment to the General Plan and the General Plan Land Use Map, and a change in property’s zoning designation / the Mill Valley Zoning Map.
Community Venture Partners and concerned community leaders are available to discuss this, upon request.
Bob Silvestri, President, Community Venture Partners, Inc.
LIST OF ATTACHMENTS
 Mr. Kennedy is a “retired-inactive” member of the District of Columbia Bar. He participated (pro bono) in drafting this appeal on his own behalf, not as an attorney for any party.
 For additional, detailed commentary and analysis regarding the issues raised in this appeal, please see the attached “Supplemental Comment” letter by Bingham Kennedy, dated January 9, 2023; (Attachment E); the “Friends of Kite Hill” comment letter by Alecia Cotton, Esq. of Rogers Joseph O’Donnell, dated November 15, 2022 (Attachment F);the “575 East Blithedale Project Traffic Review,” by PHA Transportation Consultants, Pang Ho, dated October 30, 2022 (Attachment G); the “Supplemental Comment” letter by Burton Miller, dated January 8, 2023 (Attachment H); and the 2022_CEQA_Statue_and_Guidelines found at https://www.califaep.org/statute_and_guidelines.php. (Attachment I), all of which are incorporated, herein, by reference. The minutes and public comments submitted at the Mill Valley Planning Commission Project review hearings on November 17, 2022 and January 10, 2023, and Project related documentation in the administrative record, are also incorporated, herein, by reference.
 Nothing in the current context “requires otherwise”. Nothing in Guidelines 15332 purports to establish a conflicting definition of the critical term, but merely authorizes an exemption for “infill development”.
 Under the heading “Increased Population Alternative” language was deleted that would “incentivize the development of second units and senior housing units”.
 HCD has issued a mandate for Mill Valley to meet its RHNA quota of 865 dwelling units. Assuming an average of at least 2 residents per dwelling unit, that would increase the population by 1,730 residents.
 The current Mill Valley population is estimated at 14,528. Thus HCD has in effect mandated an increase of at least 12% in the population.
 See, e.g., Comments of Community Venture Partners, Inc.; Friends of Kite Hill, November 15, 2022; Burton Miller, November 10, 2022; John Palmer, November 1, 2022 and the attached Letter from PHA Transportation Consultants, October 30, 2022; Freeman Park Neighborhood Association, November, 2022.