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Dominican Valley Residents are Steaming Mad for Good Reason
Deep in the heart of Dominican Valley sits a unique and spectacular
piece of property: one of the last remaining, large parcels of wilderness land in
the Black Canyon area, located at the access point to the Harry Barbier Memorial Park and
the gateway to China Camp State Park open space, beyond. Until recently, it was
owned by Dominican University, for decades.
Residents in the surrounding area have always believed and have been told, repeatedly, by city officials, that every effort would be made to preserve this precious 20+-acre parcel and that it might someday become a public park. This is all encoded in the City’s General Plan and Zoning Codes and any development proposals were to be subject to a rigorous public engagement process, the results of which were to be highly sensitive to the property’s unique environmental assets and value to the community.
According to the California Governor’s Office of Planning and Research, the General Plan of a city is a “blueprint for meeting the community's long-term vision for the future.” It is generally considered to be a city’s “Constitution.” Consider, then, the following sections of the City of San Rafael General Plan and its Neighborhood Element, regarding the “Dominican/Black Canyon” neighborhood and the Dominican Valley property.
In the San Rafael General Plan - Neighborhood Element’s general description it states,
The neighborhood has a parklike character, created by large and abundant trees, landscaped yards, and attractive architecture. Hillside trails provide spectacular views of San Rafael and the surrounding area. Creeks originating in the open spaces flow through the residential areas and the Dominican campus, with riparian areas providing natural habitat.
There may also be opportunities for further open space acquisition. Longstanding priorities for residents include developing a neighborhood park and playground, reducing the impacts of freeway noise, and minimizing the impact of the university on surrounding residential areas. The neighborhood is also concerned about reducing wildfire and landslide hazards and is working to improve emergency preparedness and response. [Underlined Emphasis added]
Under its specific “Policies” it goes on to specify,
Policy NH-2.14: Dominican University
Sustain Dominican University as a valued community institution and contributor to San Rafael’s economy and culture. University operations and events should be compatible with surrounding residential areas, and the impacts of facilities, activities, and events on the neighborhood should be minimized. Continue to foster a cooperative relationship between the University’s students, faculty, visitors, and residents. [Underlined Emphasis added]
Program NH-2.14A: University-Neighborhood Coordination.
Maintain on-going coordination between Dominican University, the Dominican-Black Canyon Neighborhood Association, the City of San Rafael, and campus neighbors to address concerns such as traffic, parking, noise, and vegetation management in the University area. In the event future development or campus expansion is proposed, amendments to the Master Use Permit shall be required. Creation of neighborhood advisory committees to advise and collaborate on proposed development projects and address issues of concern is strongly encouraged. [Underlined Emphasis added]
Program NH-2.14B: Dominican Hillside Parcels.
Work with Dominican University and neighborhood residents to plan for the undeveloped hillside parcels located east of Deer Park Avenue and south of Gold Hill Grade.
Much of the property is steep and heavily wooded. Other portions have the potential for housing, including student housing and faculty/staff housing, which is a significant local and community need. In the event housing is pursued, the permitted density should reflect site constraints.
Development should conform to the City’s Hillside Residential Design Guidelines and include provisions for substantial open space. The neighborhood should be involved in the planning and review process, which would include an amendment to the Master Use Permit and the PD-district zoning. [Underlined Emphasis added]
Policy NH-2.15: Dominican/Black Canyon Area Resources and Hazards
Proactively work to conserve and restore natural resources and reduce environmental hazards in the Dominican/Black Canyon area, including wildfire, landslide, and noise hazards. [Underlined Emphasis added]
These goals, policies, programs, and intentions, regarding the future of the Dominican Valley property, have been crystal clear for decades. Yet, in June of 2023, out of the blue, residents woke up to the find that their decades of public participation and personal efforts to enshrine these goals, policies, and planning principles into local law and their faith in their elected representatives to ensure that these laws and planning regulations were honored, were now at risk of being all for naught.
A private developer had purchased the Dominican Valley property and was proposing to build as many as 75 homes on it, based on a largely untested state law known as the “builder’s remedy.”
Dominican University’s betrayal of the public’s trust
According to the information we've gathered thus far, in the spring of 2023, the Board of Dominican University convened behind closed doors, hidden from the eyes of the general public and the school’s generous donors, and entered into a covert deal with one private, for-profit housing developer to sell the Dominican Valley property. The public record, as best as we can tell, indicates that the developer was introduced to the Dominican Board by a member of the San Rafael planning staff and the private transaction that followed was facilitated by a “broker” who was a friend of one of the University Board members.
Months of backroom discussions about the disposition of the Dominican Valley land appear to have been intentionally kept from the public’s knowledge because the University wanted to hide the fact that it was under severe financial strain to pay off a large debt that was coming due. The University Board of Directors ended up agreeing to sell the Dominican Valley property for less than ten cents on the dollar. Shockingly, the sale was also conducted without a property appraisal or any attempt whatsoever to publicly market the property to establish its fair market value and to receive competitive offers.
One would think that the Board of Dominican University would conduct themselves more professionally and at the very least seek the highest possible price for the property through a publicly noticed sale, considering the financial debts the University still owes and its fiduciary duty to the community and the generous donors who have supported it for so many years.
Our inquiries found that even some Board members felt blindsided by the deal, which was presented to them as a fait accompli.
Even without any special knowledge of real estate values in San Rafael, one could reasonably estimate that the value of the 20+ acre, Dominican Valley property, which is zoned for “Planned Development” (residential) and has all the required utilities in the adjacent streets, would easily appraise for over $20 million. However, County Records show that it was sold for just $2.5 million without any restrictions, preservation easements, or covenants of any kind (e.g, limiting the number of homes allowed). At that price, any developer could just build a few large homes and walk away with a 100% return on their investment. But that’s not what has resulted from this mind-boggling fire sale.
Although the details of this transaction and the actions of the participants (the board’s voting record) remain a closely guarded secret by the University, from what we can discern from our investigation, at the time of the sale, the Board of Dominican University was somehow convinced (purportedly by another “someone” who was advising a University Board member) that the property was of little value and was largely “undevelopable” due to its topography, and that it might support the construction of only 5 homes, max.
To everyone's surprise?
On December 5, 2023, the developer who purchased the property, Dominican Valley LLC, filed an application that proposes massive clear-cutting of the existing forest and the development of at least 50 homes plus 14 Accessory Dwelling Units on the property (a proposal that would normally be dismissed out of hand because it violates every one of the goals, policies, and programs and the rules and regulations of the city’s General Plan and Zoning Codes). And the city now has only 30 days from the submission date to determine if the application for the proposal is "complete." And if it fails to do that, the developer can pretty much build whatever they want.
Remarkably, the developer’s resultant land cost for each dwelling will be $50,000 per lot -- this in an area with “a park-like character, created by large and abundant trees, landscaped yards, and attractive architecture. Hillside trails provide spectacular views of San Rafael and the surrounding area. Creeks originating in the open spaces flow through the residential areas and the Dominican campus, with riparian areas providing natural habitat,” where one large, landscaped, developable, single-family home site can sell for as much as $1 million.
That the Board of Dominican University, knowing that the University was deep in debt, consented to the undisclosed sale of this acreage to one individual without the benefit of conducting any reasonable due diligence as to its value or assessment of its development potential, is simply beyond comprehension. Worse still, some Board members may have been misled about how it would be developed by the buyer.
San Rafael residents and Dominican University donors, in particular, have every right to be outraged at the Board’s dereliction of duty and blatant disregard for all of the requirements of the San Rafael General Plan, listed above, and should demand a full investigation.
To dig deeper, we need to understand the city's Housing Element process.
The General Plan Housing Element
Every 8 years (the “housing cycle”) cities and counties in California are required to update their Housing Element (HE) in order to remove obstacles to housing development to facilitate their prescribed Regional Housing Needs Allocation (RHNA) quota, which is handed down to them by the Association of Bay Area Governments (ABAG)/The Metropolitan Transportation Commission (MTC) and the state Department of Community Development (HCD). The resultant HE is then, typically, adopted by the city council and then submitted to HCD for final certification.
On its face, it’s a fairly straightforward task, involving hired consultants who check off a list of statistical and academic requirements and make a list of future development “opportunity sites.” Controversy arises in determining which properties are on that list and how many and what kind of housing units are going to be crammed onto them – an admittedly difficult but mandatory exercise.
Still, cities have 8 years to think about and prepare for this, and the next housing cycle’s RHNA quotas, typically, come out about 2 years before the HE is due to be completed. Although the most recent 2023 to 2031 quotas were eye-popping, having increased in some cases as much as 1,000% from the previous housing cycle, there is really no excuse for a city to fail to complete its Housing Element on time, for which there can be penalties.
However, this is not the case for the City of San Rafael. The City has always been in good standing with HCD and has never received a notice of being out of compliance with state housing laws, which is typically the first notice of an outstanding issue. There is also ample evidence that the City addressed its current 2023 to 2031 Housing Element RHNA responsibilities in a timely manner and the Dominican Valley property is not even on the city’s latest “opportunity site” list. But the recently submitted development proposal application disregards all of this because it claims the right to what is called the "builder's remedy."
The ‘Builder’s Remedy”
Much has been written lately about the so-called “builder’s remedy” (See “Save Dominican Valley explains the "Builder's Remedy"), a provision under the Housing Accountability Act (Govt. Code Section 65589.5). Essentially, the law states that if a city or county has not “adopted” a Housing Element that is in substantial compliance with state housing law, in a timely manner, a developer can disregard the all local General Plan and Zoning Codes if its proposed project provides at least 20% of its new housing units for “low-income” tenants or 100% of the units qualify as “affordable” units.
In a phrase, everything about the development “rights” being handed out by this law comes down to the term “substantially compliant.”
The definition of what constitutes a Housing Element that is in “substantial compliance” and the moment in the HE process when this standard is officially recognized is subject to wide-ranging and un-adjudicated debate. For legal purposes, the focus of that debate revolves around whether this compliance occurs when an elected body (city or county) “adopts” a Housing Element that it has found to be substantially compliant with state housing law (for example, by a vote of the City Council) or when HCD reviews a city’s Housing Element and “certifies” it -- officially agrees that it meets the criteria.
Unfortunately, what those “criteria” are remains undefined in the law. According to an analysis by the law firm of Hanson Bridgett,
“… any city or county that currently lacks an HCD-approved Housing Element after its relevant deadline is currently subject to the Builder's Remedy.”
On the other hand, according to “The Builder’s Remedy and Housing Elements,” published by ABAG,
“HCD approval is not required for a housing element to be found substantially compliant with state law. State law provides that a city or county may adopt its own findings explaining why its housing element is substantially compliant with state law despite HCD’s findings. (Section 65585(f).)” [Emphasis added]
At the moment, there is an ongoing case that’s been in the news, in which Governor Newsom and Attorney General Ron Bonta are suing the city of La Cañada Flintridge because the city is claiming its right to “self-certify" their Housing Element as being substantially compliant with state housing law. Newsom’s, Bonta’s, and HCD’s position is that self-certification is categorically illegal.
CVP’s legal counsel opined that the Governor’s, the Attorney General’s, and HCD’s opinions in this matter are spurious, adding,
“One of the few things that both sides of this issue agree on (including YIMBY Law) is that it’s ultimately up to the courts to determine whether a city’s HE is or is not substantially compliant with state housing law. HCD [nor the Governor or the Attorney General] has final authority to make that determination [of what constitutes substantial compliance] on its own.”
This brings us back to the City of San Rafael and the Dominican Valley development proposal, for which the developer is claiming the right to the “builder’s remedy,” thereby by-passing all of the City’s General Plan and Zoning Code restrictions in addition to claiming the right to numerous other concessions and regulatory waivers.
However, as noted above and as explained in great detail in the Marin Post article entitled, “Save Dominican Valley explains the Builder’s Remedy,” the evidence shows that the City has the authority to reject the developer’s claim to the builder’s remedy because its Housing Element draft was submitted to HCD for comment in a timely manner and the final HE was formally adopted prior to the submission of the developer’s preliminary application in June of 2023, and it was subsequently certified by HCD as being fully compliant with state housing laws.
As such, the City can deny the builder’s remedy claim and require the new development to conform to all local regulations and codes.
In addition, as explained by CVP’s legal counsel,
“A city can deny a Builder’s Remedy” application if the site lacks adequate water or wastewater service, or if there is “a significant, quantifiable, direct, and unavoidable impact” on public health or safety, “based on objective, identified written standards, as they existed on the date the [project] application was deemed complete. So if the project violates objective GP standards (or Zoning standards) that are intended to protect public health and safety, and the violation will result in significant, quantifiable, direct, and unavoidable impacts, then the City can deny the application without violating the law. And the California Environmental Quality Act (CEQA) still applies.”
The future of the development proposal will depend on the actions the City takes on this issue.
The 30-day application review period – It’s now or never
Once a developer has submitted a development proposal/application, the city has 30 days to review it and advise the applicant whether or not the application is “complete,” and if not complete, provide the applicant with a list of what needs to be added or corrected. The due date for the determination of the completeness of the developer’s application, by the City staff, is only about 19 days from now (the 30-day period is "calendar" days). Meanwhile, as explained in great detail in the Marin Post article entitled, “A Community Effort to Save Dominican Valley,” it is already clear that significant impacts from this project will occur.
Most notably, per the City’s fire codes, the development is located in a designated Very High Fire Hazard Zone (the “WUI”) and therefore poses significant risks to the public’s safety if the setbacks, critical, fire-safety, 50-foot distances between structures/homes, and landscape hardening requirements found in the San Rafael code are not adhered to, in addition to a variety of foreseeable, unmitigated-able environmental impacts.
So again, the overriding question is whether or not the developer is entitled to the builder’s remedy. In our opinion, based on all the evidence at hand, the answer to that question is unequivocally, “No.” But what’s unknown is whether the City of San Rafael will defend the public's health and safety, and have the backbone to deny the developer’s claim.
If the City fails to challenge the developer’s claim to the builder’s remedy, now that the project application has been filed, then it may also preclude them from being able to challenge it after the 30-day review period.
It would be unconscionable for the City to fail to make this determination about the applicability of the builder’s remedy, as soon as possible.
If the City does not make a decision about the applicability of the builder’s remedy within the 30-day development proposal review period, they will essentially lose all control of local planning and zoning for the Dominican Valley project and will set a very bad precedent for other Marin cities. And, any delay will give the developer grounds to claim significant monetary damages if the proposal is allowed to move forward as submitted and then challenged later on.
Does the City understand what’s at stake?
The public deserves answers, immediately.
Apropos all of this
In late summer of 2023, months after the developer’s proposal had been submitted, a resident in the area reached out to councilmember Maribeth Bushey to discuss the Dominican Valley LLC development proposal. As reported back to neighbors, she told him, 'It’s too early to fight because there’s nothing to fight yet as all the preliminary proposals are nothing more than that,' implying that there’s nothing to worry about. She recommended 'keeping your powder dry' and to present your concerns to the Planning Commission at a later date. Finally, she opined that 'The developer is not very well prepared for the project.'
All I can say is WOW!
If that retelling is even remotely accurate, Councilmember Bushey is either incredibly naïve or has no understanding, whatsoever, how state housing law works. The “preliminary” proposals submitted in June, conveyed “vested rights” to “fast-track” approval processing to the developer and the comprehensive proposal just submitted shows the developer is very prepared. And, the restrictions (no City Council hearings required) and obligations of the City during the 30-day application review process, under state housing law, indicate that by the time it gets to the Planning Commission it will be too late to “fight” for anything.
A look behind the scenes
To find out more about the City’s involvement with the Dominican Valley LLC project proposal, on August 8, 2023, we filed a Public Records Act (PRA) request, which asked for
“All documents and records dated after January 1, 2020, to the present that refer or relate to any and all communications between the City of San Rafael and the principals, representatives, agents, or assigns of Dominican Valley LLC and any and all communications between the City of San Rafael and administrators, board members, representatives, agents, departments, or assigns of Dominican University, regarding the subject parcel(s) included in, adjacent to, or impacted by the Dominical Valley LLC development proposal for the parcel identified as APN 015-163-03.”
Our request defined “documents” as follows:
“The documents and records requested should include, but not be limited to, inter and intra-departmental and personal notes, memos, correspondence and email communications. (See Evidence Code § 250.)
"Public records" includes any "writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Gov. Code § 6252(e).
“Writing" means "any handwriting, typewriting, printing, photostatting, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation ...regardless of the manner in which the record has been stored." Id. § 6252(g), and in this instance, including but not limited to diagrams, plans, specifications, drawings, illustrations and other such formats.
“Also note that per City of San Jose v. Superior Court (2017) 2 Cal.5th 608 this request includes any and all responsive records, documents, and communications sent, received, or stored in any individual's personal email accounts, including but not limited to personal emails from or to all parties.”
Since that time, our request has resulted in an underwhelming production of responsive documents, by the City, particularly in these times of constant emails and texts. Considering the paucity of documents produced by the City, one is asked to believe that the city staff and elected officials do all their business by phone and in face-to-face conversations passing in the hall.
Based on our prior experiences with PRA requests and evidentiary discovery during litigation, in my opinion, the lack of sufficient document production, particularly of personal emails and texts from city staff and city council members, suggests that these parties have either engaged in significant document destruction or are simply lying to the City Attorney about their lack involvement in the Dominican Valley property sale and the development proposal process.
What we can say, from the scraps of information we did manage to obtain, is that the record is highly suspect.
Though the documentation of communications we received about the project between city staff and councilmembers was scant, in general, email threads show that the developer and Alicia Giudice, the Community Development Director of the City of San Rafael, carried on chatty, informal, first-name-basis conversations, staying in touch about each other’s progress on the development proposal on a regular basis.
More revealing, though, is an email thread between Mayor Kate Colin, councilmember Maribeth Bushey, and Sarah Gardner, the Executive Director of Communications & Media Relations at Dominican University, and Nicola Pitchford, the President of Dominican University, the tone of which is typical of the interactions we discovered between these individuals over the past year.
On June 8, 2023, Mayor Kate Colin reached out to Sarah Gardner, Councilmember Maribeth Bushey, Nicola Pitchford, and Cristine Alilovich, the City Manager of San Rafael, as follows:
“Hi Sarah and Councilmember Bushey –
“President Pitchford and I just had a chance to connect about the neighbors' concerns about the recent Dominican University sale of land. As the Council received feedback during 'public open time' about this issue and it was readily apparent that there is already misinformation circulating, Councilmember Bushey graciously agreed to help facilitate a meeting between the neighbors and the developer Ray Cassidy.”
Mayor Colin’s email was apparently followed up by a response from Sarah, though that email was not produced by the City, indicating that Sarah and Nicola had a conversation about what they should do about the emails and calls of protest the University was getting since the public learned about the developer’s plans.
Then Mayor Colin later followed up with another email, which said,
“Sarah –
“Nice to e-meet you and I understand you are the Public Information officer for Dominican so Nicola and I know that you and Maribeth will figure out the best way to have this conversation with the neighbors.
“Let us know if we can support you in any way otherwise we'll leave it up to the two of you to manage. Thank you for that as I know what it's like to deal with angry residents! [Underlined emphasis added]
“Kate Colin (she/her/hers)
“Mayor, City of San Rafael”
Keep in mind that these cavalier exchanges both occurred just 2 days after the developer submitted its SB 330 Preliminary Applications for the proposed development, on June 6, 2023. That this group had already coalesced by this time suggests that they had been in touch about potential community opposition long before the project proposals became public.
It also suggests that the collusion to obfuscate the truth (there was no “misinformation" in the community) and cover up the circumstances of the private sale of the property for pennies on the dollar goes all the way to the top: to the offices of the University’s President and the Mayor of San Rafael.
Thus our skepticism about the City having provided us with all the documented communications between these parties in the weeks and months prior to the sale.
The likelihood of our interpretation of events being correct is particularly conspicuous because the informational update email exchanges between the developer and Planning Director Alicia Giudice stretch as far back as early 2023.
So, let me ask you a question.
Do these email exchanges sound like a group of individuals who are diligently working in the best interests of their constituents, guided by the highest standards expected of them by their respective institutions? Or, to say it plainly, do they sound like a group who are working to cover their collective asses about an intentionally undisclosed land sale (that resulted in a “sweetheart” deal for one developer) by crafting a well-organized “spin” campaign?
And by the way, Councilmember Bushey never did get around to facilitating any meetings between the developer and the neighbors or the 300 members of the Save Dominican Valley opposition group, even though residents from that group made repeated inquiries to the City about doing that. In fact, city staff subsequently told the neighbors that it was their responsibility to reach out to talk to the developer, not the developer’s responsibility to share his plans with them, in direct violation of the City’s planning and zoning code.
The public deserves answers.
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.