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Seeking a less destructive housing plan for Unincorporated Marin

Posted by: Sharon Rushton - June 18, 2023 - 12:42 PM PDT

On June 7th, Unincorporated Marin revised Chapter 5 of the Marin County 2023-2031 Housing Element. The chapter outlines the goals, policies and programs of the housing plan. In response, Sustainable TamAlmonte submitted the following letter to the Marin County Supervisors regarding the proposed element and related Countywide Plan amendments.

Sustainable TamAlmonte’s letter urges the Supervisors to disregard the optional advice and excessive requests of the California State Department of Housing and Community Development (HCD) and instead adopt a more reasonable housing plan that follows the Marin County Planning Commission’s recommendations and does not exceed what is required by Housing Element Law to attain a substantially compliant housing element.

The letter demonstrates why it is unnecessary and preferable to not follow HCD’s requests, how extremely destructive the Marin County Housing Element is, and why following Sustainable TamAlmonte’s recommendations is the best course for Unincorporated Marin.

If you agree with Sustainable TamAlmonte, then please send an endorsement of our letter via email to the Supervisors and staff:

Sample Message:

"Dear Marin County Board of Supervisors,

We endorse Sustainable TamAlmonte's letter, dated June 12, 2023, regarding the 2023-2031 Marin County Housing Element and related Countywide Plan amendments. Please follow Sustainable TamAlmonte's recommendations and adopt a more reasonable housing element that does not exceed what is required by Housing Element Law to attain a substantially compliant housing element.

Sincerely,

Your Name"

Thank you in advance for your advocacy. Together we can make a difference!

_________________________________________________________________

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June 12, 2023

Marin County Board of Supervisors, 3501 Civic Center Drive, Suite 329, San Rafael, CA 94903

Re: Marin County 6th Cycle 2023-2031 Housing Element and Related Countywide Plan Amendments

Dear Marin County Board of Supervisors,

We urge you to disregard the optional advice and excessive requests of the California State Department of Housing and Community Development (HCD) and instead adopt a more reasonable Marin County 2023-2031 Housing Element that follows the Marin County Planning Commission’s recommendations and does not exceed what is required by Housing Element Law to attain a compliant housing element.

More specifically, we urge you to reverse the following Marin Countywide Plan amendments related to the Housing Element and delete the following Housing Element Programs, all of which are unnecessary to meet the County’s housing obligations under state law:

REVERSE AND DELETE LIST

This letter will demonstrate why it is unnecessary and preferable to not follow HCD’s requests, how extremely destructive the Marin County Housing Element is, and why following our recommendations is the best course for Unincorporated Marin.

I. IT IS BEST TO DISREGARD HCD’S REQUESTS

Despite the fact that the State Department of Housing and Community Development (HCD) has not yet approved the 2023-2031 Marin County Housing Element, the County's housing plan and related Countywide Plan amendments exceed what is required by Housing Element law to attain a compliant housing element. Correspondingly, Marin County Counsel Brian Washington confirmed; "We timely submitted a substantially compliant housing element." (Marin IJ article; "Marin County's housing element rejected by state")

It is important to understand that HCD is only an advisory agency. If HCD finds that a draft element does not substantially comply, the city or county may either amend the draft element so it will "substantially comply" as recommended by HCD, or it may adopt the element without changes and adopt written findings explaining why the housing element substantially complies despite HCD's objections. "There is no presumption of invalidity" if HCD has not found the housing element to be in compliance. (Fonseca, 148 Cal.App.4th at 1184) Only the courts can truly determine whether or not a housing element is in substantial compliance with applicable statutory requirements.

Moreover, it is well known that HCD's review goes beyond "substantial compliance" and the agency often requests more from jurisdictions than what is actually required by Housing Element law. "Communities typically find HCD's review to be far more rigorous than that of the courts, with HCD questioning adopted policies and demanding proof that they will accomplish their goals." "With relatively limited success in the courts, affordable housing advocates have focused much of their effort on lobbying HCD to require more and more justification for local policies." (League of California Cities' report entitled; “Housing Elements: Beware of What You Promise )

Marin County Supervisors and Staff should not worry about pleasing HCD and instead, should depend on their legal counsel's interpretation of Housing Element law to determine how to achieve a substantially compliant Housing Element. Marin County should also be prepared to go to court to defend the local control of land use that they have left and protect the health and safety of residents and the environment.

Although an HCD-certified housing element brings with it eligibility for state and regional funding sources, HCD's excessive demands are not worth it. The costs of mitigating (if they even can be mitigated) the significant adverse environmental impacts caused by HCD's harsh demands of over-development are much greater than the funds gained from HCD's approval.

II. THE ABOVE LISTED MARIN COUNTY HOUSING ELEMENT PROGRAMS AND COUNTYWIDE PLAN AMENDMENTS ARE UNNECESSARY TO ATTAIN A COMPLIANT HOUSING ELEMENT:

On March 23, 2023, the Department of Housing and Community Development (HCD) sent County Administrator Matthew Hymel a letter re: Marin County’s 6th Cycle (2023-2031) Adopted Housing Element. The only revision to the element that HCD requested was regarding Furthering Fair Housing Opportunities, described below:

“Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics… (Gov. Code (65583, subd. (c)(5).)

The following evidence demonstrates that the Marin County Housing Element Site Inventory, existing State laws, and other Housing Element programs, which are not on our “REVERSE AND DELETE LIST”, satisfy the legal requirements of Furthering Fair Housing Opportunities.

Therefore, the County can ignore HCD’s requests and, instead, follow our recommendations.

A. Marin County’s Housing Element Inventory Is Excessive

The Regional Housing Needs Allocation (RHNA) (AKA housing quota) for Marin County's 6th cycle 2023-2031 Housing Element is 3,569 units. The Marin County Housing Element Inventory identified sites that would accommodate 5,197 housing units. This satisfies the mandatory 3,569 units and, in addition, provides an unnecessary and enormous 45.5% buffer of 1,628 units. In contrast, the City of Mill Valley’s buffer is 10% (96 units).

Moreover, the inventory sites are distributed throughout Unincorporated Marin in all types of communities, most of which are affluent and “high resource” areas. This furthers fair housing opportunities.

B. State Density Bonus Law already mandates huge density bonuses, concessions, and incentives throughout Unincorporated Marin.

The Density Bonus is a state mandate. A developer, who develops a multifamily housing development of 5 units or greater with a required percent of affordable housing units, is entitled to receive a density bonus, concessions, and incentives, which are easy to qualify for, as a matter of right.

1. Marin County’s Inclusionary Zoning Policy

Marin County’s Inclusionary Zoning Policy states;

“All projects proposing the development of two or more new units or lots must dedicate 20% of the project as affordable housing.”

2. Applicability of Density Bonus Law

Due to Marin County’s Inclusionary Regulation, every multifamily project of 5 units or greater will qualify for a huge density bonus and two or three incentives or concessions.

Please view ADDENDUM I of this letter, to see how easy it is for a developer to receive an extremely large bonus plus incentives and concessions.

C. Senate Bill - 9 already eliminated single-family zoning and allows approximately 73,845 more potential homes in previously zoned single-family neighborhoods in Unincorporated Marin.

There are 24,615 single-family dwellings in Unincorporated Marin, according to the 2023-2031 Housing Element. The County’s average household size is 2.35 people (per the CWP’s EIR). So potential growth consistent with SB-9, in which single-family homes turn into duplexes or four homes, could be up to 73,845 more homes and 173,535 more residents, over and above the 2023-2031 Housing Element forecast.

SB-9 units and Accessory Dwelling Units (ADUs) are allowed throughout all single-family neighborhoods, which includes the most affluent and “high resource” areas of Unincorporated Marin. This again furthers fair housing opportunities.

Quote from DRAFT Housing Element:

“Housing Units by Type and Production Based on 2021 data from the California Department of Finance (DOF), the unincorporated area of Marin has 24,778 single-family homes constituting 83% of the total housing stock, 4,452 multi-family homes comprising 15% of all housing, and 588 mobile homes, for a total of 29,818 homes (Table H-2.14). Single-family homes are slightly less dominant countywide and make up just over 71 % of the County’s total housing stock. Table H-2.14 and Table H-2.15 show the distribution of housing by type for the unincorporated County and the County as a whole. These proportions have not changed significantly in the past Housing Element planning period from 2013 to 2021.”

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III. THE 2023-2031 MARIN COUNTY HOUSING ELEMENT IS EXTREMELY DESTRUCTIVE

Sustainable TamAlmonte's research has found that the 2023-2031 Marin County Housing Element is exceedingly destructive. It is well recognized that the Housing Element's Environmental Impact Report (EIR) determined that land uses and development consistent with the Housing Element would result in 15 significant unavoidable adverse environmental impacts. These include detrimental impacts on water supply, air quality, greenhouse gas emissions, transportation, visual character, wastewater treatment, noise and tribal resources.

What is not well known is that the EIR didn't analyze all potential environmental effects. Therefore, the impending harm is probably worse than conveyed.

The EIR did not analyze the impacts caused by the Countywide Plan amendments pertaining to community plans. The environmental report did not analyze the impacts caused by the Countywide Plan amendments that removed protections from sites within the Baylands Corridor, sites within the Ridge and Upland Greenbelt, sites with environmental constraints, sites with sensitive habitat, and sites lacking public water or sewer systems. The analysis also did not examine impacts resulting from the full build-out potential caused by Senate Bill 9 - a new state law that allows homeowners to split their single-family parcels into two lots and build up to four homes.

If completely carried out, the housing plan, along with State laws, allows for the transformation of Unincorporated Marin's residential and mixed-use areas into an urban cement desert. Just think of the excessively over-sized development approved at 825 Drake Ave. in Marin City. Having received an 80% density bonus, the 5-story complex consists of 74 housing units and only 24 parking spaces. Now imagine that monstrosity on every multi-unit residential and mixed-use parcel in Unincorporated Marin. In fact, future developments could be even larger because, with the latest Housing Element programs, the County is increasing the potential bulk of buildings.

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AMG & Associates, LLC rendering of a five story, 74-unit affordable housing development with only 24 parking spaces at 825 Drake Ave. in Marin City that received an 80% density bonus. Critics say it is too large, stresses the current infrastructure, and endangers residents.

As previously mentioned, the State Density Bonus Law is outrageously excessive. With only 15% affordable housing units, a developer is granted a 50% density bonus plus two or three "incentives" or "concessions". With 100% affordable units, the award is an 80% density bonus plus 4 concessions. An incentive or concession is defined as a reduction in site development standards (setbacks, height) or a modification of zoning code (FAR, use) or architectural design requirements. (See Addendum I)

The Density Bonus is a multiplier of whatever development is allowed by the jurisdiction. Therefore, it is in everyone's best interest for the County to keep density and development standards at the lowest possible denominator, especially when so much of Marin is covered with hazardous environmental constraints. Yet, the County's Housing Element does the exact opposite.

IV. SPECIFIC REASONS TO REVERSE AFORE-LISTED COUNTYWIDE PLAN AMENDMENTS AND DELETE AFORE-LISTED HOUSING ELEMENT PROGRAMS

Link to the Marin Countywide Plan Text Amendments related to the Housing Element:

https://www.marincounty.org/-/media/files/departments/cd/planning/cwp/housing-and-safety-elements/bos-012423-final/item-3-he-devcode-fbc/att-1-exhibit-d1-related-cwp-amendments-and-land-use-redesignation-maps.pdf?la=en

Link to the Marin County Housing Element Programs:

https://www.marincounty.org/-/media/files/departments/cd/housing/housing-element/2024-2032-he-docs/060723-section-5/section-5--housing-plan-v3-06072023.pdf?la=en

A. Reverse the Countywide Plan text amendments that eviscerate Community Plans by rendering huge portions of the plans unenforceable.

1. Community Plan Alliance letter:

For details on how unnecessary and destructive the Countywide Plan amendments pertaining to community plans are, please review the letter, dated March 31, 2023, from Community Plan Alliance re: “Reverse the unnecessary damage done to community plans”.

The letter was reviewed by an expert land use attorney to ensure that it is accurate. It explains how the CWP amendments eviscerate community plans by rendering them unenforceable and why they were unnecessary to achieve a compliant Housing Element. It also details the changes to the language of the Countywide Plan that are needed to regain the integrity of the community plans.

2. The size and diversity of community plan areas deserve the same respect and consideration as the cities of Marin do:

Community Plan areas are as large and diverse (with different topography, infrastructure, constraints, and goals) as the cities in Marin. As such, they should be given the same respect and consideration as cities are given.

Many areas, which sit within the jurisdictions of community plans in Unincorporated Marin, have even larger populations and more households than cities in Marin. Specifically, six community plan areas are larger than the Town of Ross and the Town of Belvedere.

The Tamalpais Area Community Plan, which governs Tam Valley, Almonte, Homestead, and Muir Woods Park, is the most highly populated community plan area and is home to more residents and households than six of the cities in Marin County. It is larger than Corte Madera, Fairfax, Tiburon, Sausalito, Ross, and Belvedere.

Community Plans are the closest thing that Unincorporated Marin residents have to city general plans. Yet, our community plans were stripped of their enforceability with essentially one public hearing by the Supervisors. Before that, the Planning Commission had been trying to maintain the integrity of these vital plans.

Below is the approximate number of residents and households situated in each of the cities and towns of Marin, followed by the approximate number of residents and households situated in each of the six largest community plan areas:

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B. Reverse the Countywide Plan text amendments regarding development potential and environmental protections on sites within the Baylands Corridor, on sites within the Ridge and Upland Greenbelt, on sites with environmental constraints, on sites with sensitive habitat, and on sites lacking public water or sewer systems.

The Countywide Plan (CWP) text amendments eliminated the following protections from development on sites within the Baylands Corridor, on sites within the Ridge and Upland Greenbelt, on sites with environmental constraints, on sites with sensitive habitat, and on sites lacking public water or sewer systems.

COUNTYWIDE PLAN - The Natural Systems and Agricultural Element

Goal BIO-5: Baylands Conservation (p.83)

"Within the Baylands Corridor, potential residential density and commercial floor area ratios shall be calculated at the lowest end of the applicable ranges. This provision does not apply to small parcels (2 acres or less in size) that were legally created prior to January 1, 2007. Within PD-AERA designation, the density and floor area ratios shall be as specified for those areas."

Policy CD-1.3

Potential impacts in sensitive areas

"Calculate potential residential densities and commercial floor area ratio (FAR) at the lowest end of the applicable range on sites within the Ridge and Upland Greenbelt or Baylands Corridor. Densities higher than the lowest end of the applicable density range may be considered on a case-by-case basis for new housing units affordable to very low and low income households that are capable of providing adequate water or sewer services as long as the development complies with the California Environmental Quality Act and all other applicable policies in the Countywide Plan . including, but not limited to, those governing environmental protection."

Program CD-1.c

Reduce Potential Impacts.

“Amend the Development Code to calculate potential residential density and commercial floor area ratio (FAR) at the lowest end of the applicable range on sites with sensitive habitat, on sites within the Ridge and Upland Greenbelt or the Baylands Corridor, or on sites lacking public water or sewer systems. Densities higher than the lowest end of the applicable density range may be considered on a case-by-case basis for new housing units affordable to very low and low income households that are capable of providing adequate water or sewer services, as long as the development complies with the California Environmental Quality Act and all other applicable policies including, but not limited to, those governing environmental protection.”

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Sustainable TamAlmonte created the attached Excel spreadsheet entitled; “Excel Spreadsheet: Baylands Corridor: Low End VS High End FAR & Density” to demonstrate how extremely destructive the above CWP text amendments are.

As already stated, the CWP amendments removed the restriction that development on parcels in the Baylands Corridor, which are greater than 2 acres, must be calculated at the low-end of the density and Floor Area Ratio (FAR) range. The attached spreadsheet illustrates the difference between how many housing units were allowed at the low-end of the density and FAR range and compares that to how many housing units are now allowed at the high-end of the density and FAR range. Since the protection only applied to Baylands Corridor parcels that are greater than 2 acres in size, the spreadsheet only applies to potential housing development on Baylands Corridor parcels in Tam Junction and Manzanita that are greater than 2 acres in size. The spreadsheet assumes that all existing buildings were replaced with housing units and that the units fit within the FAR.

THE RESULTS:

The spreadsheet shows that the Countywide Plan text amendments pertaining to the Baylands Corridor increased development potential by up to 1200 percent!

For hypothetical housing developments with a combination of 80% market rate and 20% affordable housing units (required by the Inclusionary Regulation) with an average unit size of 1000 sq. ft.:

For hypothetical housing developments with 100% affordable housing units with average unit size of 566 sq. ft. (the same average size as the Fireside Apartments):

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Furthermore, all the parcels, which are situated in the Baylands Corridor and in the Tam Junction and Manzanita areas, are subject to the following hazardous constraints:

Tam Junction and Manzanita are only a small portion of the Baylands Corridor. Imagine how the CWP amendments increased development potential on all the parcels in the Baylands Corridor, which are greater than 2 acres and developable, meaning not designated as "open space". The adverse environmental impacts caused by this much additional development potential in the most hazardous areas of Marin are most likely abundant and exceedingly perilous.

In order to protect public health and safety and preserve the environment, please reverse the Countywide Plan text amendments regarding development potential and environmental protections on sites within the Baylands Corridor, on sites within the Ridge and Upland Greenbelt, on sites with environmental constraints, on sites with sensitive habitat, and on sites lacking public water or sewer systems.

C. Delete Program 6: Efficient Use of Multi-Unit Land, which establishes minimum densities for multi-unit and mixed-use zones.

Program 6 establishes minimum densities and prohibits the construction of new detached single-unit homes on multi-unit zoned property.

In Unincorporated Marin, single-family residential neighborhoods are often interlaced with multi-unit zoned properties. Many of these residential neighborhoods are in high or very high fire severity zones, in landslide areas, in high seismic activity zones, or in flood zones. It is counterproductive to increase density and population in these hazardous communities, when the exact opposite goal should be pursued. Lower density and population should be sought in hazardous areas to protect public health and safety and augment safe evacuation in times of emergencies.

D. Delete the Housing Element Program 8 entitled; “Development Code Amendment: Height Limit”, which increases heights from 15 feet or 30 feet to 45 feet.

The Housing Element program entitled; “Program 8: Development Code Amendment: Height Limit” raises heights from 15 feet or 30 feet to 45 feet. The Housing Element states that the reason for this program is because the 30-foot height limit is potentially constraining to achieving a density of 30 units per acre. However, except for a few Housing Element inventory sites that were identified in a previous housing element, there is no need for Unincorporated Marin to seek a density of 30 units per acre, since Unincorporated Marin’s default density is 20 units per acre.

HCD’s memorandum titled; “Default Density Standard Option” states;

“As an option and alternative to preparing the analysis described above, Government Code section 65583.2, subdivision (c)(3)(B), allows local governments to utilize “default” density standards that are “deemed appropriate to accommodate housing for lower income households.” The default density option is not a mandated density. The default density standard provides a streamlined option for local governments to meet the density requirement. No analysis to establish the appropriateness of the default density is required, and the California Department of Housing and Community Development (HCD) must accept that density as appropriate in its review.”

AB-1537 (Levine), followed by AB-106 (Levine) which extended AB-1537 until 2028, allows Unincorporated Marin to be considered "suburban", rather than "metropolitan", for purposes of determining the densities appropriate to accommodate housing for lower income households. And the default density for “suburban” jurisdictions is 20 units per acre, according to HCD’s memorandum titled; “Default Density Standard Option”.

Furthermore, raising heights would be extremely destructive to preserving community character, sunshine access, privacy, and views. Many properties’ views are worth 100s of thousands of dollars.

Therefore, it doesn't make sense for the County to seek 30 units per acre or to raise the height limit to 45 feet.

E. Delete the Housing Element Program 9 entitled; “Parking Standards”, which reduces parking requirements for multi-unit housing.

Program 9 entitled; “Parking Standards” reduces parking requirements for multi-unit housing.

With substandard public transit, most Marin residents travel by driving vehicles. Reducing off-street parking spaces does not reduce the need for residents to use and park vehicles, it simply forces them to park their vehicles on public streets, which are often already highly congested. This will lead to streets being overcrowded with parked cars, SUVs, trucks, etc. Many of the access and evacuation routes in Marin are inadequate and unsafe. Dire consequences could result during an emergency when residents are unable to evacuate and fire trucks/paramedics are unable to reach their destinations.

Therefore, parking standards should be maintained and Program 9 should be deleted.

F. Delete the Housing Element Program 25 entitled; “Incentives for Affordable Housing: County Density Bonus of 10 percent (above State density bonus)”, which makes density bonuses even higher than the exorbitant State density bonuses.

Housing Element Program 25, which increases density bonuses to 10 percent above the State Density Bonus, is the most outrageous program of all. We have already demonstrated that the State Density Bonus is extremely excessive, allowing up to an 80% bonus PLUS concessions and incentives. Do you really want to allow a 90% bonus?

Please delete Program 25 and do not exceed the bonuses allowed by the State Density Bonus law.

G. Delete Program 32 entitled; “Comprehensive Review of Zoning and Planning Policies, which includes reviewing the use of the terms “single-family” residential use, ‘protecting the character of the neighborhood”, and conditional approval in regulatory documents.

The Housing Element Program 32 titled; “Comprehensive Review of Zoning and Planning Policies” infers that “single-family zoning” and “protecting the character of the neighborhood” is discriminatory and may directly or indirectly perpetuate segregation. This assertion has no basis in fact.

Regarding the claim that single-family zoning is discriminatory and perpetuates segregation: It is true that prior to the Civil Rights Act of 1964, CC&Rs (Covenants, conditions, and restrictions), Homeowner Associations, and redlining excluded people based on race, color, creed, nationality, and a host of other criteria from certain single-family, duplex, and multi-family neighborhoods. Prior to 1964, segregation and similar prohibitions certainly existed and applied to all types of housing as well as all types of jobs, places, and opportunities. – not just single-family housing. However, this is no longer the case. Today, such exclusion is illegal.

Moreover, the attack on single-family zoning ignores the fact that homeownership is a crucial tool for communities of color to build wealth.

A 2013 study by researchers at Harvard University’s Joint Center for Housing Studies lays out several valuable points about homeownership for people of color. First, in real-life practice, homeowners are more likely to accumulate wealth than renters. Also, homeownership has meaningful social benefits in which people feel a sense of success, have control over their living situation, and can put down roots in a community. The Harvard researchers noted, policymakers should help people succeed as homeowners.

V. CONCLUSION

Once again, we urge you to disregard the optional advice and excessive requests of the California State Department of Housing and Community Development (HCD) and instead adopt a more reasonable Marin County 2023-2031 Housing Element that follows the Marin County Planning Commission’s recommendations and does not exceed what is required by Housing Element Law to attain a compliant housing element.

More specifically, we urge you to reverse the above referenced Marin Countywide Plan amendments related to the Housing Element and delete the above referenced Housing Element Programs, all of which are unnecessary to meet the County’s housing obligations under state law.

Thank you in advance for your conscientious consideration.

Very truly yours,

/s/

Sharon Rushton, President

Sustainable TamAlmonte


ADDENDUM I

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The above excerpts are from the article by Meyers Nave law firm entitled; "Guide to the California Density Bonus Law".

Tags

Marin County Housing Element, Marin County Board of Supervisors, Sustainable TamAlmonte