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Marin County
Comments to the Marin BOS and PC on amendments to the Countywide Plan
The following letter was submitted to the Marin County Board of Supervisors and the Commissioners of the Marin County Planning Commission on January 7, 2025, regarding their deliberations on amendments to the Countywide Plan, which I had previously successfully challenged in Marin County Superior Court.
Dear Supervisors and Commissioners,
I am the Petitioner of “Corcoran v Marin County.”
Ask
I oppose the Option E revisions for the Countywide Plan Amendments as concocted by the Planning Commission during the December 16, 2024, Workshop. My primary concern lies with the new language in the “Countywide Plan, Built Environment Element” section. I pray that you remove the offending language, thereby protecting the authority and integrity of all 22 Community and Area Plans.
Argument
The offending language in Option E states:
For residential and mixed use projects where there are land use designation or development density and floor area ratio differences, the County will weigh and balance these differences by seeking to advance the overall vision and goals of the applicable Community Plan within the requirements of applicable state law…
The County has broad discretion to weigh and balance goals, objectives, programs, and policies, but the Planning Staff does not have the discretion to weigh and balance Community Plan standards or provisions that were meant to be standards. Land use designations, development densities, and floor area ratios are Community Plan standards. For example, if the standard height limit in a Community Plan is 30 feet, and the standard in the Countywide Plan is 45 feet, then which standard applies? There is a legislative process for making that determination. But giving the Planning Staff the discretion to make that decision based on the way they feel about a project in the moment, acts like a precedence clause and likely is unlawful.
Failure to remove that language will put the County in jeopardy for another lawsuit, not necessarily by me, but by residents of the affected Community Plan.
The overarching problem is that the Countywide Plan is internally inconsistent, which is an unlawful state that can exist only temporarily. The language quoted above is an affirmation that the Countywide Plan will continue to be internally inconsistent because it envisions differences between Community Plan and Countywide Plan standards into an indeterminate future.
The Court allows the Countywide Plan to be internally inconsistent temporarily provided there is a schedule to fix it. The County claims, for example, that Program 32 is one such schedule, but it is more akin to an aspirational goal, that can be manipulated and extended by the County at will, instead of a concrete schedule.
Program 32 states:
Specific Actions and Timeline: ▪ In 2024, conduct a comprehensive review of zoning and planning policies and make appropriate revisions to remove discriminatory language and policies.
Clearly, the Planning Staff did not conduct a comprehensive review of zoning and planning policies in 2024. In fact, Program 32 was adopted with the Housing Element on January 24, 2023, so the Planning Staff has done nothing about Program 32 for almost 2 years. Time is ticking off the “temporary” clock.
I also oppose Options A and C because they contain offending language similar to Option E.I support Options B and D because they have removed the offending language.
Based on the machinations that the County has put the public and Petitioner through about the unlawful precedence clauses and Countywide Plan Amendments revisions over the past two years, their constituents have concluded that the Planning Staff and HCD will resist any revisions unless they contain a provision to allow the Planning Staff to have the discretion to override Community Plan standards. Instead of defending Community Plans, the Planning Staff is in lockstep with HCD.
Unnecessary New, Additional Language
HCD approved Marin County’s Housing Element with the language in the Current Text. The Planning Staff has used the Court order as an opportunity to add unnecessary, new language in Option E that was not required for a compliant Housing Element.
For example, why is the new, additional language, “and other planning documents and policies,” necessary in the Housing Element, Chapter 1 section of Option E when it does not appear in the Current Text, and HCD originally approved the Housing Element without it? Why is it necessary now? What other planning documents and policies does this refer to? The public and the Petitioner do not know.
As another example, why is the new, additional language, “Housing Element policies and implementation programs actively support AFFH and opportunities for expanded housing options within the Countywide Plan and Community Plans,” necessary in the Housing Element, Chapter 3 section of Option E, when it does not appear in the Current Text, and HCD originally approved the Housing Element without it. Why is it necessary now?
The problem with inserting this new language about Affirmatively Furthering Fair Housing (AFFH) in the Countywide Plan Amendments is that there is very little case law about it.AFFH is a vague and elastic concept that can be interpreted in any way the Planning Staff wants and could lead to endless arguments about whether or not a Community Plan has met the statutory requirement to “promote and affirmatively further fair housing opportunities.”
In such an atmosphere, the Planning Staff would likely have elevated power as the only ones in the room who can opine about what HCD needs and what it might do, while the Supervisors and Planning Commissioners have little idea about what is actually required. This sets the stage for the Planning Staff to push for extra measures not needed for a compliant Housing Element but endlessly justifiable if the only objective is to “overcome patterns of segregation.”
Excluding AFFH in this section will avoid unnecessary conflicts with Community Plans. Everyone knows that AFFH is state law. The repeated statements throughout the Countywide Plan and Housing Element that Community Plans must conform to state law covers AFFH without introducing unnecessary new language here.
Furthermore, Community Plans already contain policies for developing affordable, multi-family housing. Community Plans are ready to accept more housing, but just throwing out the Community Plan standards and allowing the Planning Staff to decide is very poor planning, is undemocratic, and is going to backfire.
Similarly, why is the new, additional language, “other language and land use mechanisms that may deter fair housing choice,” necessary in Housing Element, Chapter 5, Program 32 section of Option E, when it does not appear in the Current Text, and HCD originally approved the Housing Element without it? Why is it necessary now? No one knows what “other language and land use mechanisms” refers to. This language is problematic because it could refer to Community Plan standards.
Housing Element, Chapter 5, Program 29 in Option E adds the new language, “through use of the Office of the County Executive’s Race Equity Budget Tool Kit (REBT),” which introduces multiple levels of new scrutiny for projects countywide, including Community Plan areas. I have argued that applying a “race equity lens,” and now REBT, is racist because it essentially applies to and favors all people who are not White, but many people in Marin who are White also need the County’s financial support.
For that reason, I recommended the alternative language, “to apply a lens that recognizes underserved communities” in Option D, because it is inclusive of all people in need regardless of their race. The additional language about REBT does not appear in the Current Text, and HCD originally approved the Housing Element without it, but the Planning Staff and Planning Commission have doubled down by including this race-based policy in the Countywide Plan Amendments.
However, including it may prove to be controversial, and it is not necessary for a compliant Housing Element.Given the time constraints with Marin Superior Court that the County is facing, it may be prudent to delay adding the REBT language until another time in the future. Marin County boasts that it is the first California county to have a REBT policy. Perhaps that is because only in Marin would a county want to codify such a racist policy in their general plan.
The County’s Bad Faith Negotiations
The Planning Commission Meeting on December 16, 2024, was full of surprises and did not proceed in the manner that the County had agreed to.At the October 29, 2024, Board of Supervisors Meeting, my attorney and I agreed to extend the Court deadline to remove the unlawful precedence clauses by 120 days, at the County’s pleading, in return for collaborating with the Planning Staff to reach a mutually acceptable Option D to present to the Planning Commission on December 16, 2024.
That’s not what happened.
I expected that the Planning Staff and I would present to the Planning Commission a mutually accepted compromise agreement, known as Option D. Instead, the Staff Report presented 4 Options for the Planning Commission to consider, including Option A that the Planning Commission previously rejected, and Option B that the Planning Commission previously recommended to the Board of Supervisors, and Option C that the Staff Report identified as the “Revised Staff Proposal.”
In addition, the Staff Report mischaracterized Option D as the "Petitioner's Option," when it should have been labeled as the "Compromise Option." Option B is the "Petitioner's Option," which the Planning Commission had approved and I supported wholeheartedly.
The Commissioners were left with the task of sorting everything out.To complicate matters even more, they ultimately approved another new Option, dubbed Option E, for the Countywide Plan Amendments, which they concocted during the Meeting by cobbling together portions of the Current Text and Options A, B, C, and D, and adding some new language.
My agreement to extend by 120 days the Marin Superior Court deadline was an accommodation to the County.It took the pressure off the County that was facing a November 12, 2024, Court date. It also provided the County an opportunity to schedule a Planning Commission meeting before the end of the year, so the County has more time to meet the extended Court deadline.
My attorney and I worked collaboratively with County Counsel and the Planning Staff for a month leading up to the December 16, 2024, Planning Commission Meeting, as directed by the Board of Supervisors. We submitted our recommendations for Option D on November 27, 2024 (the day before Thanksgiving), again at the County’s pleading, so that a Planning Commission meeting could be scheduled before year end.
However, the Planning Staff did not respond to our recommendations for Option D until a few hours before the release of the Staff Report on December 11, 2024, at which time County Counsel informed us that the Planning Staff still had some reservations about our recommendations for Option D. As a result, the Planning Staff did not collaborate with us on Option D and merely resubmitted Option C as the Staff’s preference.(I addressed the Planning Staff’s concerns in a separate letter to the Planning Commission.)
If the Planning Staff still had concerns, then we should have been notified well in advance of the posting of the Staff Report, so that both sides could have tried to negotiate an agreement about those concerns. We assumed both sides were in agreement about Option D because we made revisions to accommodate the Planning Staff. We upheld our side of the negotiations, but the Planning Staff acted in bad faith.
Irregularities in the Approval Process
A. Option B was approved by the Planning Commission on September 23, 2024.Furthermore, Option B was the public’s choice and the Petitioner’s choice. The Planning Commission rescinded its own approval 3 months later at the December 16, 2024, based on the Planning Staff’s conveyance that HCD may not approve it. Option B should have been presented to HCD for an official written ruling, but Planning Staff presented Option B to HCD as a tentative ruling instead. The Planning Commission was cowed by a mere threat from HCD. As a result, the Planning Commission, the public, and the Petitioner were denied due process and an official written ruling by HCD on Option B.
B. At the Planning Commission Meeting on September 23, 2025, the Planning Commission rebuked the Planning Staff for negotiating with HCD directly and without the authority of the Planning Commission and told the Planning Staff not to do it again. Those unauthorized negotiations led to Option A, which the Planning Commission rejected at that Meeting. Following that Meeting, the Planning Staff held “discussions” with HCD again despite the Planning Commission’s rebuke and instruction, but this time Marin County Executive Johnson participated in those “discussions,” so he put his foot on the scale of the outcome.
The public does not know for certain what was said during those
“discussions,” but we do know that it resulted in Option C, which the
Planning Staff claimed HCD was likely to approve, and the panning of
Option B, which the Planning Staff claimed HCD likely would not
approve. So, County Executive Johnson put his weight behind Option C at
the expense of the Planning Commission’s, and the public’s, and the
Petitioner’s choice of Option B. This amounts to an extraordinary and
unwarranted intervention of our County Executive in the approval process
to thwart the will of the people and to acquiesce to the demands of
unelected bureaucrats at HCD.Allowing unelected bureaucrats at HCD to
insert themselves on a step-by-step basis corrupts Marin County’s
approval process and is bad policy and procedure.
C. The Planning Commission Meeting on December 16, 2024 was called a “Workshop” in the Staff Report. Typically, a “Workshop” collects public input but does not render a decision by the Planning Commission. However, in this case, the Planning Commission heard public comments but then approved Option E, which was not even addressed in the Staff Report.Nor could Option E have solicited comments from the public because it was constructed by the Commissioners during the “Workshop.”
Then, the public was informed on December 20, 2024, that it could submit comments about Option E until January 7, 2025.Submitting comments after the Planning Commission has rendered a decision puts the public at a disadvantage because it would require the Planning Commission to change its decision again, which will be hard to do.Submitting comments after a decision by the Planning Commission appears to be a futile exercise foisted on the public to cover procedural bases that were violated. That is unfair.
D. The Staff Report for the Planning Commission Meeting was confusing and unintelligible to the public. It contained the Current Text plus 4 Options with multi-colored strikeouts, deletions, and additions without any notation about who was making them. I even had trouble figuring them out. To be clear, the only edits that I had input on are in Option D.The purpose of a Staff Report is to inform the public.This one failed.
A Deeper Dive into Precedence Clauses
The most egregious “preference clause” in the Current Text appears in the in the last section, entitled “Countywide Plan, Built Environment Element” that involves “Implementation Tools.” It states,
A Community plan is considered part of the Marin Countywide Plan and sets forth goals, objectives, policies, and programs to address specific issues relevant to that particular community. For residential and mixed use projects where there are land use designation or development density and floor area ratio differences, the Countywide Plan shall prevail, except this policy shall not apply for applications that include Development Agreements. (Emphasis added)
Marin Superior Court ruled that this preference clause was unlawful because it automatically subordinated Community Plans to the Countywide Plan.Option B, which the Planning Commission approved on September 23, 2024, and was the public’s and Petitioner’s first choice, removed this language in entirety.
However, subsequent Options reinserted this provision in revised form so that it is not an obvious “preference clause”--such as “the Countywide Plan shall prevail”--but acts in the same way as a preference clause by granting discretionary overrides instead of automatic overrides.Option E, which the Planning Commission approved on December 16, 2024, thereby rescinding its own previous ruling approving Option B merely because of threats from HCD, states:
A Community plan is considered part of the Marin Countywide Plan and sets forth goals, objectives, policies, and programs to address specific issues relevant to that particular community. For residential and mixed use projects where there are land use designation or development density and floor area ratio differences, the County will weigh and balance these differences by seeking to advance the overall vision and goals of the applicable Community Plan within the requirements of applicable state law, except this policy shall not apply for applications that include Development Agreements. (Emphasis added)
This language is problematic because “these differences” is a catchall phrase that means any differences between the Countywide Plan and Community Plans without restrictions. The limits of “these differences” are unspecified and can be anything the Planning Staff wants them to be depending on how the Planning Staff feels in the moment about a particular project.“ These differences” could include standards. Community Plan standards or policies that were intended to be standards must be identified as an exception.
Allowing the unelected Planning Staff to “weigh and balance” Community Plan standards against provisions and standards in the Countywide Plan and Housing Element gives unwarranted authority to the Planning Staff, especially on ministerial projects. Marin Superior Court reaffirmed that Community Plans are co-equal parts of the Countywide Plan and that one part cannot subordinate another, so Community Plan standards have equal standing and must be respected. As a result, the revised language in Option E also may be unlawful, in my opinion, because it can be used to subordinate Community Plans.Therefore, Marin County is opening itself up for additional lawsuits if it adopts this proposed language in Option E.
The Planning Staff Has Lost Public Trust
The Planning Staff has lost public trust given that they ignored former Planning Commissioner Montalbano’s warning that the use of precedence clauses likely would be unlawful, circumvented the Planning Commission by negotiating with HCD directly about Countywide Plan Amendments, and refused to negotiate with the Petitioner to reach a mutually acceptable compromise that was supposed to be the substance of Option D.
Above all, the Planning Staff has lost public trust because they were responsible for convincing the Board of Supervisors to adopt the Housing Element without the recommendation of the Planning Commission in a failed attempt to make the Countywide Plan internally consistent by simply overriding Community Plans whenever there was a conflict. And then, having lost in Court, the Planning Staff has been responsible for adding new, additional language to the Countywide Plan amendments to compensate for the loss of the unlawful precedence clauses. That language adds new layers of regulations to Community Plans, giving the Planning Staff more control, but it is unnecessary for a compliant Housing Element.
Are Community Plans Exclusionary and Discriminatory?
For those who say that Community Plans are exclusionary, discriminatory, and contain language rooted in segregation, may I remind you that discrimination in housing has been unlawful federally since 1968, which predates all Community Plans. Therefore, if the Board of Supervisors had approved any Community Plan with discriminatory language, then the Board would be liable for committing an unlawful act.
In 1968, I was 19 years old, so people in my age cohort had nothing to do with previous discriminatory housing laws, which were abhorrent.That was 3 generations ago.We have grandchildren now.
It may surprise you that, according to the 1973 Strawberry Community Plan, the average price of a detached single-family house in Strawberry was $25,000 compared to a median sale price in Marin County of $1.4 million in November 2024. That was a lot of money in 1973 but not so much to prevent some people of any race from buying a house in Strawberry.And those who did made a great investment.
In my neighborhood in 1977, we had White families, Iranian families, Hispanic families, Asian families, Indian families, Muslim families, Jewish families, Christian families, and Hindu families—in other words, families with heritages from around the world.My next-door neighbor of 40 years is Chinese and his late wife was Canadian. Two Indian families live two and four houses away from mine. And a Black couple lived directly across the street from the front of my house, a White family with two adopted Black children lived across the street and one house way, and a Black man currently lives directly across the street from the rear of my house now. We all get along. There is no racial animus.Community Plans, such as the Strawberry Community Plan, were not made “to keep people out,” as one Planning Commissioner recently claimed.
The Marin County Board of Supervisors Must Take Responsibility
The Board of Supervisors must take responsibility for the shortage of affordable housing in Marin instead of projecting blame on Community Plans. The primary reason for high housing prices in Marin is County policy that has designated 85% of the land area as parklands, open space, agricultural trusts, and environmentally sensitive bay lands and ridge areas that cannot be developed. That leaves only 15% of the land area that can be developed, and most of that remaining land already has been built out. The remaining lots are expensive to build on because of steep terrain, sea level rise, fire hazards, septic systems, inadequate water supply, and a host of other constraints. A scarcity of buildable land means higher housing prices.Furthermore, all Community Plans ultimately are approved by the Board of Supervisors. So, do not place all the blame on Community Plans.
At some point soon, Marin County must stop kowtowing to HCD and steel itself to defend the rights of its own citizens. The County has acquiesced to the unrealistically high RHNA mandate instead of defending Marin’s designation as a suburban area under SB 106, which reduced the default density to 20 units per acre.Instead of pushing back, the County has created ministerial Housing Overlay Designation sites at 30 units per acre, which is the default density for metropolitan areas, even on sites in Planned Districts that are subject to Design Review and a Master Plan.
To put things into perspective, Marin County’s 14,405 Regional Housing Needs Allocation mandate is equivalent to the current number of housing units in Tiburon, Mill Valley, and Sausalito combined. Meanwhile, demographers project that California’s population will be flat through 2060.
The RHNA mandate is unrealistic and unachievable.HCD has set us up to fail. If the County does not issue permits for about 7,200 housing units by the midpoint of the current Housing Element cycle, then the “Builder’s Remedy” will kick in, and the State will take over control of local housing development. That is what the State wants. The citizens of Marin County do not.
The Supervisors and Planning Commissioners must show more confidence and mettle because they have submitted a robust and compliant Housing Element that has satisfied the RHNA and AFFH requirements.HCD will continue to threaten Marin County because the threats have worked.Marin County must push back or else we will be pushovers.
Sincerely yours,
Bruce Corcoran, Petitioner