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Marin County
Comments on the proposed Countywide Plan revisions in response to the court order
The following letter was submitted to the Marin County Planning Commission, for consideration at their September 23, 2024 hearing, regarding amendments to the Marin Countywide Plan. These comments are relevant to the upcoming Board of Supervisors hearing on October 29th, as described in other Marin Post articles.
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Dear Planning Commissioners,
As I stated in my previous letter dated July 30, 2024, I agree with the text revisions that are deletions, but I oppose the text revisions that are additions. I am writing to provide more details about my reasons for recommending the removal of text additions to the proposed Countywide Plan Amendments.
Exhibit A: Table of Proposed Countywide Plan Revisions in Response to Court
CLICK HERE to read the Table of Proposed Revisions.
1. Relationship of the Housing Element to other Countywide Plan Elements
The additional language “and other planning documents and policies” is a vague and suspicious catchall phrase that could grant Planning Staff more discretion to determine which planning documents and policies impact the Countywide Plan and Community Plans. What other planning documents and policies does this phrase mean?
If the Countywide Plan is the governing document, then other policies and documents cannot supersede the Countywide Plan. Only State law supersedes the Countywide Plan. Other policies and documents that are not in the Countywide Plan must be consistent with the Countywide Plan. Other policies and documents that are in the Countywide Plan must be internally consistent with all parts of the Countywide Plan, including Community Plans.
Recommendation: Delete “and other planning documents and policies” because it is unnecessary and vague and potentially grants Planning Staff unlawful and overbroad discretion over Community Plans.
2. Community Plans (Housing Element, Chapter 3, Constraints)
This Section starts with the following acknowledgment:
“To help implement the Countywide Plan while also recognizing the unique character of the local communities, the County has adopted 22 Community Plans and Area Plans.” (Underlining added)
This acknowledgment conflicts with Program 32, which states that the use of the term “protecting the character of the neighborhood” is discriminatory language that may directly or indirectly perpetuate segregation, which is false.
This Section also implies that Community Plans adopted in the 1980s and 1990s were more likely to contain “background language and in some cases policies or standards that discourage” multifamily housing compared to the three new Community Plans adopted since 2015.
This implication also is false. Almost all Community Plans contain provisions for multifamily housing, but the three most recent Community Plans contain even more restrictive language because they encompass rural areas that have limited infrastructure, including water, sewer, fire and flood protection, and roadways. Regardless, all Community Plans were approved by the Board of Supervisors because they followed Countywide Plan and Development Code guidelines.
The rest of the additional language of this Section primarily states that the Countywide Plan must comply with new State laws (incentives for affordable housing, ADUs, No Net Loss, concessions to developers, AB 2234, AFFH), which everyone already knows, so why is this additional language necessary?
I expect Planning Staff to argue that the additional language provides “guidance,” but it does more than that.It attempts to codify—again unlawfully—that the Housing Element policies and implementation programs are more important than Community Plans.
There is one obvious exception that is not a new State law. The Development Code must be consistent with all parts of the Countywide Plan.The Development Code does not dictate policies to the Countywide Plan. Rather, it follows and implements the policies of the Countywide Plan.
Therefore, mention of the Development Code should be removed in any case. State law supersedes Community Plans, but Community Plans supersede new Development Code amendments that are inconsistent with Community Plan standards.
I will have more to say in my Program 32 comments.
Recommendation: Delete the additional language and replace the last sentence with:
“While the Community Plans help to address the specific characteristics of the respective area, if the County determines that the language, policies, or standards of a Community Plan discourage multifamily housing, then the County will work with that community to amend their Community Plan.”
3. Program 29: Place-Based Planning and Neighborhood Improvements
I personally find the phrase “apply a race equity lens” objectionable.
Why is everything about someone’s race today? Why not say “apply a lower income and under-served lens?” I believe most people in Marin County, myself included, want funding to go to communities and residents with the most needs regardless of race.
Note also that "Place-Based Planning and Neighborhood Improvements" is a new Housing Element policy that does not appear in any Community Plan. It was easy to adopt Program 29 under unlawful precedence clauses that overrode Community Plans, but precedence clauses do not apply anymore.
Program 29 subordinates Community Plans in land use, circulation, safety, environmental justice, community facilities and resources, open space and recreation, and anything else without limit. In response to the Corcoran v Marin County lawsuit, the Planning Commission must determine whether, or not, Program 29 is internally consistent with Community Plans.
Recommendation: Replace “a race equity lens” with “lower income and under-served lens.” Determine if Program 29 is internally consistent with Community Plans.
4. Program 32: Comprehensive Review of Zoning and Planning Policies
Program 32 and the previous Section 2 Community Plans and the next Section 5 Community Plans are related because each one relies on unsubstantiated claims by Planning Staff that Community Plans contain “discriminatory language or policies that may directly or indirectly perpetuate segregation.”
That is an inflammatory claim that is insulting to communities that have Community Plans because it implies that they are racists, which is untrue. Planning Staff better have the facts to back up that accusation, especially because the Board of Supervisors approved the language in every Community Plan.
Discriminatory housing policies have been illegal since 1968, which is prior to the approval of any of the Community Plans. Is the Planning Staff’s intention to call out the Board of Supervisors for adopting unlawful racially motivated policies that perpetuate segregation?
Program 32 also claims that because the
“County’s Countywide Plan, Development Code and planning policies have been “incrementally developed over time” that they may have “inherited language rooted in segregation.”
That is another inflammatory and unsubstantiated claim by Planning Staff.
As pointed out in Section 2 Community Plans, the three most recent Community Plans have even more restrictive language than the older plans. Specifically, “the use of the terms “single-family” residential use” and “protecting the character of the neighborhood” are cited as language that perpetuates segregation, which is absurd because people of color want single-family homes and want to protect the character of their neighborhoods, too. Furthermore, almost all Community Plans contain language about protecting community character, because they merely followed Countywide Plan and Development Code policies.
But then Program 32 adds an unnecessary and broad new term to those they claim perpetuates segregation, namely, “and other language that may deter affirmatively furthering fair housing.”
This addition is unnecessary because AFFH is State law and everyone already knows that Community Plans must comply with State law. Moreover, the addition is too broad because it gives unelected County Planners discretion over Community Plans to determine if language is discriminatory. This language provides no guidance whatsoever regarding how Planning Staff would evaluate whether a project or Community Plan furthered or hindered whatever the AFFH standard is supposed to stand for.
The result of adopting this language would render the Countywide Plan impermissibly vague and therefore subject to the whimsical discretion of unelected Planning Staff.
Finally, the schedule of Specific Actions and Timeline in Program 32 is unrealistic and likely does not meet legal requirements. It is an aspirational schedule that continually changes instead of a finite schedule that is enforceable.
The schedule states:
“In 2024, conduct a comprehensive review of zoning and planning policies and assess the results and explore a variety of measures for implementation.”
Given 2024-year-end holidays, that means Planning Staff has about 3 months to conduct a comprehensive review of 22 Community and Area Plans, which is highly unlikely. Also note that the time line to “make appropriate revisions to remove discriminatory language and policies” already has been pushed out to sometime in 2025 instead of 2024, and the County can extend that deadline again and again at will unless the Planning Commission requires Planning Staff to set a defined deadline.
Recommendation: Delete "and other language that may deter affirmatively furthering fair housing." Require Planning Staff to provide a new, realistic schedule for Program 32 that is enforceable.
5. Community Plans (Housing Element Appendix D, AFFH)
This Section is objectionable on many levels. Overall, this Section is based solely on the unsubstantiated opinion of Planning Staff, without consultation with Design Review Boards or community leaders.
To wit, “Staff found that the Community Plans contained exclusionary language for the development of multi‐unit projects and included discriminatory language such as ‘protecting community character.”’ (Underlining added.)
Apparently, Planning Staff searched for racial code words but ignored context. An examination of context will reveal well-reasoned Community Plan policies that are not racially exclusionary or discriminatory.
For example, this Section cites the following excerpt from the 1982 Amendments to the Strawberry Community Plan as exclusionary and discriminatory:
“It is important that the social patterns, personal interactions, sights and sounds that typify single family neighborhoods be maintained and strengthened.”
However, it fails to consider the context of Goal B. Housing Balance from which the citation was drawn. Strawberry already had, and still has, the second highest percentage of multi-unit housing in the County behind Marin City, so Strawberry cannot be accused of limiting multi-unit housing. In addition, the Golden Gate Baptist Theological Seminary and De Silva Island were multi-unit projects in the 1982 Plan.
Strawberry was merely trying to preserve and strengthen its much smaller percentage of single-family units. Furthermore, the citation was selective and self-serving because it failed to cite in the same paragraph the provision that
“where physical constraints or opportunities dictate another housing type (i.e., attached units), the Community goal is to provide the opportunity for and encourage occupancy by families with children.”
The Advisory Committee that drafted the 1982 Plan recognized that our Strawberry Point Elementary School faced the possibility of closure for lack of children, and sure enough the school closed from 1990 to 2000, and we had to bus or drive our children across Highway 101 to school in Mill Valley. We do not want that to happen again. That is the reason housing balance is so important.
One of the peculiarities of Strawberry is that our large multi-unit apartment, condominium, and townhome complexes have very few, if any, children. These units have become homes for retirees or wealthy singles or childless couples. They are marketed by the property owners as homes with resort features, which discourages families with children.
Planning Staff would not know this because they do not live here. For Strawberry, and perhaps for other communities in Marin, the State’s and County’s mandates for multi-family housing is not the magic solution for producing affordable or workforce housing for families with children. Housing Balance requires units of all types.
The additional language,
“In practice,
requirements of State law and the permitting requirements for multifamily
development on qualifying sites would have the effect of allowing multifamily
development even where language in community plans discourages or limits it.
Further, County documents include programs and policies to address these policy
inconsistencies, such as the Countywide Plan,”
...is unnecessary because we all know that Community Plans must comply with State law. In addition, this new language presents a hypothetical case that may face legal challenges as long as the Countywide Plan remains internally inconsistent and the County treats Community and Area Plans as stepchildren.
Hypotheticals should not be part of the Countywide Plan in any event.
Recommendation: Delete the additional language.
6. Countywide Plan, Introduction, User Guide
I strongly oppose the addition to Countywide Plan 1.4 – 4, on page 5, which states:
“Another overall principle to guide the reading, interpretation, and implementation of the Plan is that none of its provisions will be interpreted by the County in a manner that violates state or federal law, including state housing law regarding affirmatively furthering fair housing, or the authority of any state agency.” (Underlining added.)
There is a danger in codifying the underlined statement in the Countywide Plan because most citizens of Marin know that HCD’s methodology for determining housing needs is grossly excessive and unachievable. The State Finance Department has even questioned HCD’s methodology. So which state agency are we supposed to follow? HCD, State Finance Department, Caltrans?
Besides, the Court, not the unelected officials at HCD, is the final arbiter of housing law. Furthermore, citizens of Marin want County officials to be able to push back against bad policy promulgated by HCD. They are tired of hearing the excuse that County officials’ “hands are tied.” It is prudent for Marin County to retain its authority and flexibility.
Recommendation: Delete the language, “including state housing law regarding affirmatively furthering fair housing, or the authority of any state agency.”
7. Countywide Plan, Introduction, Implementation
No additions, no comments.
8. Countywide Plan, Built Environment, Community development, Background
The additional language in this Section is the most onerous of all for Community Plans:
“For residential and mixed use projects where there are land use designation or development density and floor area ratio differences, the County will balance and harmonize these differences within the requirements of applicable state law and adopted development standards in a manner that best achieves the Countywide Plan’s overall goals and affirmatively furthers fair housing, except this policy shall not apply for applications that include Development Agreements.” (Added text shown in bold)
This new language goes beyond what State law requires. Instead of saying State law controls, which would require the County to make a showing that a Community Plan standard “violated” State law, the revisions now have integrated that issue into the text of the CWP, thereby simply giving the discretion to County officials to make the call, regardless of whether a court of law would determine that the Community Plan provision was in violation of State law.
As discussed above, addition of this completely unnecessary language makes the Countywide Plan impermissibly vague, without clear standards except opinions in the moment of Planning Staff.
In sum, this provision creates unwarranted discretion on the part of County Staff to allow for “differences” in standards to persist, but simply allowing Community Plan standards to be overridden whenever they decide it does not conform to AFFH.
There is very little case law on AFFH, so the County can apply that standard any way it wants to, and the only way for citizens of Marin to oppose the County’s determinations is to file a lawsuit. That gives Planning Staff unwarranted discretion over Community Plans and puts local citizens at a disadvantage.
Recommendation: Delete the new language.Replace it with, “the more specific plan governs.”
Conclusion: The County has created a mess of the Countywide Plan in its haste to meet the filing deadline for the 2023 – 2031 Housing Element. As a result, the Countywide Plan continues to be internally inconsistent.The Countywide Plan will remain internally inconsistent until the Planning Department undertakes the arduous, time-consuming task of amending the 22 Community and Area Plans.
There are standard procedures for amending these plans. There are no short cuts. The County tried to force a short cut on Community and Area Plans, but failed in Court.
Transparency and public discourse with all stakeholders are required, but that is something the Planning Department seems loath to do.In the meantime, there will be confusion because no one will know for certain which policies apply.