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Court rules Community Plans cannot be overruled by the Countywide Plan

Posted by: Bruce Corcoran - April 14, 2024 - 11:05 AM PDT

At the upcoming Board of Supervisors Meeting on Tuesday, April 16, 2024, at 2:30 PM, the Marin County Board of Supervisors will review, for adoption, many controversial amendments to the Development Code.

The most egregious of those amendments will increase densities and floor area ratios of properties within sensitive habitats, those that lie within the environmentally protected Ridge and Upland Greenbelt, the Baylands Corridor, and those that lack public water and sewer systems.

Commissioner Don Dickenson, the well-respected and longest serving member of the Planning Commission, has called these amendments the most significant and sweeping of all the changes to the Countywide Plan because they will involve thousands of acres of properties in unincorporated Marin that will be up-zoned as much as 10-fold.

Areas impacted include Lucas Valley, Santa Venetia, Los Ranchitos, Bayside Acres, Country Club, Sleepy Hollow, Cal Park, southwest Novato, Kentfield, Kentfield King Mountain, Tam Valley, Marin City, Strawberry, and Paradise Drive in Tiburon.

The upzonig issue involves the elimination of protective footnotes in various Development Standards within the Development Code. These and similar “strike-throughs,” regarding restrictions on densities and floor area ratios, appear multiple times within the proposed amendments.

For example, the following paragraph related to densities in the Residential Development Standards has been "struck-through" (deleted):

The maximum residential density for proposed subdivisions for that portion or portions of properties with sensitive habitat or within the Ridge and Upland Greenbelt or the Baylands Corridor, and properties that lack public water or sewer systems, shall be calculated at the lowest end of the density range as established by the governing Countywide Plan Land Use Designation. This restriction does not apply to lots governed by the Countywide Plan’s PD-AERA (Planned Designation – Agricultural and Environmental Reserve Area) land use designation and to lots in the Baylands Corridor that are two acres or less in size that were legally created prior to January 1, 2007. 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 and sanitary services.

And, the following paragraph related to floor area ratios in the Residential Development Standards has been "struck-through" (deleted):

The maximum non-residential and non-agricultural floor area for that portion or portions of properties with sensitive habitat or within the Ridge and Upland Greenbelt or the Baylands Corridor, and properties that lack public water or sewer systems, shall be calculated at the lowest end of the floor area ratio range as established by the governing Countywide Plan Land Use Designation, except for projects that provide significant public benefits, as determined by the Review Authority. The floor area ratio restrictions do not apply to additions to non-residential and non-agricultural structures not exceeding 500 square feet. This restriction does not apply to lots governed by the Countywide Plan’s PD-AERA (Planned Designation – Agricultural and Environmental Reserve Area) land use designation and to lots in the Baylands Corridor that are two acres or less in size that were legally created prior to January 1, 2007.

Marin County Planners initiated these "strike-thoughs" without specifically alerting the Planning Commission to the significance and scope of the changes, hoping no one would notice. Thankfully, Commissioner Dickenson did notice, and he raised the issue at the Planning Commission Meeting on February 22, 2024. Had he not done that, these dreadful amendments would have been approved without review or public comment.

To view Commissioner Dickenson’s well-reasoned and well-researched complaints about up-zoning, please CLICK HERE (starting at about minute 42).

Unfortunately, however, at that meeting, the Commissioners voted 4 - 2 (Commissioners Dickenson and Desser voted “NO.”) to approve the "strike-throughs" because County Planners convinced the Commissioners that it was too late to make changes for fear of punishment by the staff at the state Department of Housing and Community Development (HCD).

In my opinion, that is nonsense. The State does not require Marin County to up-zone environmentally sensitive areas to achieve a compliant Housing Element. In addition, the County already had an oversized housing unit “buffer” in addition to the State’s excessive and unrealistic RHNA mandate. The County did not need more housing sites to quality for Housing Element certification.

In essence, the County has now voluntarily and unnecessarily sacrificed good planning policy to the detriment of our communities.

This is yet another power grab by County Planning Staff, who want complete ministerial authority over development in unincorporated Marin and who despise local control and community-serving advocates. Sadly, our local democratic process is being whittled away, but most people do not know what is going on.

The Board of Supervisors has the power to reinstate the prior language. That would take courage, but it is the right thing to do. But since the Supervisors now have the recommendation of the Planning Commission (as the result of the February 22nd meeting), I fear the easiest path is to just rubber stamp the Planning Commissions's recommendation to accept the strike-throughs.

But the County Supervisors now face a legal dilemma.

The County has been proceeding with its Development Code amendments on the assumption that the “precedence clauses” that were inserted into the Countywide Plan and Housing Element, override local Community Plans.

However, in April of 2023, I 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.

CLICK HERE to read the Brief

That filing stated, in part, 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.” [Emphasis added]

CLICK HERE to read the followup Marin Post article on this filing, from October 2023

That case has now been decided. On March 24, 2024, the court issued an order “Granting In Part Petitioner’s Motion For Judgment Per CCP 1094,” upholding that the Countywide Plan’s “precedence clauses,” which were the justifications for the County’s “strike-throughs” in the Development Code, were unlawful and must be removed from the Countywide Plan.

CLICK HERE to read the Court’s Order.

If the Supervisors approve the Development Code amendments as proposed, then those amendments will be inconsistent with community plan policies in state law. That will create an even bigger mess than they already have.

If you would like to submit written comments in support of our arguments and demand that the "strike-thoughs" be reinstated into the Countywide Plan to protect thousands of acres of Marin County open space, please write to the Board of Supervisors, immediately, at: bos@marincounty.org

For the full account of the proposed Development Code amendments, please see:

https://marin.granicus.com/MetaViewer.php?view_id=3&clip_id=12099&meta_id=1301562

3.25.24 Order Granting Petitioner's Motion For Judgment (pdf 684.54 KB)