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Marin County Superior Court
Strawberry resident challenges the approval of the Marin County 2023-2031 Housing Element
In April of 2023, attorneys for Strawberry resident Bruce Corcoran filed a Petition for Writ of Mandate and Complaint for Declaratory Relief against the County of Marin, challenging the County’s approval of the 2023-2031 Housing Element, based on the County’s failure to comply with state Planning and Zoning law, Government Code 65000 et seq. (See copy attached)
That filing stated that the “project” (the Housing Element),
“…violates state law, which requires that the CWP and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the County of Marin. Instead of an internally consistent CWP, the Project includes CWP amendments that elevate the Housing Element above other elements and parts of the CWP, including the CWP community plans, as well as stating that CWP standards control over community plans in the CWP. Such ‘precedence clauses’ are unlawful under the State Planning and Zoning Law. See Govt. Code § 65300.5; Sierra Club v. Board of Supervisors (1981) 126 Cal. App. 3d 698.”
The hearing on this case is set for December 20, 2023, in Marin Superior Court, the Honorable Judge James T. Chou presiding. The Petitioner’s Opening Brief presents its arguments as follows:
"Petitioner’s challenge is based on the County’s unlawful and unnecessary decision to subordinate Community Plans in the County to the adopted Housing Element policies, including any future zoning ordinances implementing such policies." Here, at the urging of County planning staff, the Board of Supervisors approved broad new CWP language that no Community Plan provision may be applied in a manner that conflicts with the policies and programs contained in the Housing Element and/or the ordinances implementing those policies. Other amendments require that no provisions in a Community Plans can conflict with the CWP and that where there are land use designation, development density or floor area ratio differences between the CWP and a Community Plan, the CWP shall prevail.”
“These broad amendments replaced prior CWP language, which had stated that where there are differences in the level of specificity between a policy in the Community Plan and a policy in the Countywide Plan, the document with the more specific language prevailed. This allowed specific planning direction contained in Community Plans to co-exist with and complement more general CWP land use designations. Now, as a result of the amendments, such specific planning direction in Community Plans are overridden by any contrary ‘policies’ in the Housing Element – including future implementing ordinances – all under the unfettered discretion of County planning staff.”
“These CWP amendments violate state law, which requires that the CWP -- including its Community Plans – comprise an integrated, internally consistent and compatible statement of policies for the County of Marin. See Govt. Code § 65300.5. Here, instead of an internally consistent CWP, the amendments elevate the Housing Element above the Community Plans, as well as stating that CWP general standards control over the specific direction provided in Community Plans. Such ‘precedence clauses’ are unlawful under the State Planning and Zoning Law. See e.g., Sierra Club v. Board of Supervisors (1981) 126 Cal. App. 3d 698.”
“Petitioner seeks a writ of mandate under Code of Civil Procedure § 1085 to set aside the County’s approval of the Project until the County has complied with the requirements of the Government Code by resolving internal inconsistencies within the CWP without the use of precedence clauses. Petitioner also seeks declaratory relief based on the actual and present controversy that has arisen and now exists between Petitioner and the County regarding the legality of the County’s current approach to resolve internal inconsistencies within the CWP through the use of precedence clauses. See Code Civ. Proc. § 1060; Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal. App. 4th 1547.” [Emphasis added]
As the Brief explains,
“An important characteristic of general plans is that be internally consistent. Internal consistency requires that no policy conflicts, either textual or diagrammatic, can exist between the components of an otherwise complete and adequate general plan. In particular, Government Code § 65300.5 states that “the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency." (Emphasis added.)
As it was adopted, the Marin County Housing Element is in gross violation of these requirements.
Click here to read the entire Opening Brief.
Why does this matter?
An organization known as the “Community Plan Alliance,” (CPA - a collaboration of 18 Marin County community organizations and local agencies) sent a letter to the Marin County Board of Supervisors regarding the recently adopted Housing Element, explaining that it has the consequence of eviscerating decades of protections of Marin open space and life-saving prohibitions against high-density development in very high fire severity hazard zones throughout the County.
As their letter of March 31, 2023, notes,
“On January 24th, your board adopted the 2023-2031 Marin County Housing Element and various Countywide Plan amendments to facilitate the housing plan’s objectives. Among other consequences, some of these amendments rendered large portions of community plans unenforceable.”
Worst of all, this has been done without any assessment of impacts and its provisions for housing far exceed the requirements under state housing law.
Click here to read the CPA letter.
When asked why he chose to file the lawsuit, Mr. Corcoran offered the following:
"I filed my lawsuit to preserve the integrity and authority of all 24 community and area plans in Marin County and to restore local control of development to the greatest degree possible consistent with new State laws.
“Community plans are products of lengthy, thoughtful, comprehensive, transparent, inclusive, and fair deliberations with all stakeholders. They must withstand scrutiny at public hearings, and they must be approved by the Planning Commission and by the Board of Supervisors. Community plans are a form of democracy that must be preserved, not diminished.
“In a rush to meet a State-imposed deadline, the Board of Supervisors approved a Housing Element that its own appointed Planning Commission could not recommend. The County adopted new policies that up-zone the environmentally sensitive Baylands Corridor and Ridge and Upland Greenbelt; permit taller buildings; give developers extra density bonuses and parking and set-back concessions; and grant unelected County planners new authority to approve projects ministerially without seeking local input.
“Loss of local control is a big problem, and it is unacceptable. The assumption that local control will prevent housing from being built is insulting and not consistent with community plans and current community attitudes. Local residents know their own communities best. There are better ways to develop housing than to just let the State take over.
“My lawsuit provides a way for all interested parties to push back against unnecessary new policies that exceed the requirements of a compliant Housing Element."
In sum, the County Housing Element, as adopted, would eradicate half a century of careful community planning throughout unincorporated Marin County.
The voices of the community and their decades of tireless participation in the County’s planning process and crafting of regulations will be wiped away simply because the Marin County Planning Staff and the Board of Supervisors are so worried about the possibility of receiving the slightest criticism from the Department of Housing and Community Development in Sacramento (HCD) that they thoughtlessly approved a Housing Element that offers far-reaching concessions to developers that were not even necessary to win state Housing Element certification.
Residents and taxpayers of Marin should, rightfully, be appalled.
Bob Silvestri is a Marin County resident, the Editor of the Marin Post, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO THE MARIN POST AND CVP to enable us to continue to work on behalf of all California residents.