|The Future of Marin as "Planned"|
“Don’t Worry” Is Not A Legitimate Planning Principle
Ms. Leelee Thomas, Principal Planner of the Marin County Planning staff, and Supervisor Rice, in particular, continue to perpetuate falsehoods about the impacts and ramifications of
designating a parcel of land by listing it on the Housing Element site inventory list.
As recently as on November 29, the Marin Independent Journal, in its article entitled “Online Petition Seeks to Slash Marin Housing Plan,” Supervisor Rice is quoted as follows:
Rice cautioned that "folks need to remember that the sites included in the housing element site inventory reflect existing development potential. Inclusion in the housing element does not
change a parcel's likelihood or potential for development."
As with Susan Adams before her, Rice constantly perpetuates the “spin” that inclusion of a site in the HE site inventory list is essentially a meaningless exercise that has no implications as to
whether or not that site will ultimately be developed. She has repeated this statement at public appearances this year and in her email updates to residents.
However, nothing could be further from the truth.
In his FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE in the matter of MARIN COMMUNITY ALLIANCE, et al. vs. COUNTY OF MARIN, Marin County Superior Court Case No. 1304393; on, page five, item two, beginning on paragraph 19, the petitioners’ attorney, Michael Graf, explains some of the ramifications of placing a parcel on the Housing Element site inventory list.
He states the following:
2. Limits on Agency’s Ability to Reduce Density of Housing Element Projects.
19. Once a parcel is presented as accommodating high density development as part of a Housing Element inventory under Government Code § 65583(a)(3), a local agency may not permit the
reduction of such residential density below that which was utilized by HCD in determining compliance with housing element law, unless the agency makes written findings supported by
substantial evidence that (1) the reduction is consistent with the adopted general plan, including the housing element; and (2) the remaining sites identified in the housing element are adequate to
accommodate the jurisdiction's share of the regional housing need. Govt. Code §65863(b). If a court finds that an agency has violated this section, the court shall award to the plaintiff who
proposed the housing development “reasonable attorney's fees and costs of suit.” Govt. Code § 65863(e).
20. The Government Code provides a limited exception to its restriction on a local government’s police power authority to disapprove a housing development listed in the Housing Element
inventory, but only if the local government makes written findings supported by substantial evidence on the record that A) The housing development project would have a specific, adverse
impact upon the public health or safety; and B) there is no feasible method to satisfactorily mitigate or avoid the adverse impact other than the disapproval of the project or requirement that
the project be developed at a lower density. See Gov. Code § 65583(g)(2). A "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective,
identified written public health or safety standards, policies, or conditions. Id.
21. The Government Code also provides that affordable housing projects utilized to meet the local agency’s allocation of affordable housing under Government Code § 65884 shall be “by
right,” (Emphasis added.) meaning that the agency’s review of the project “may not require a conditional use permit, planned unit development permit, or other discretionary local government
review or approval that would constitute a ‘project’” requiring any CEQA review. Govt. Code §65583.2(h)-(i).
22. These provisions are further strengthened by the Housing Accountability Act (Government Code section 65589.5), which prohibits an agency from disapproving a housing development
project for very low, low, or moderate-income households, or conditioning approval in a manner that renders the project infeasible for development for the use of very low, low, or moderate-
income households, including through the use of design review standards, unless it makes at least one of five specific written findings based on substantial evidence in the record. Further, a local
government is prohibited from making a finding regarding zoning and general plan inconsistency to disapprove a development if the jurisdiction identified the site in its housing element as
appropriate for residential use at the density proposed. Govt. Code § 65589.5(d)(5).
In summary, what these regulations stipulate is that once a parcel is designated on the Housing Element inventory list, it is almost impossible to remove it or deny a qualifying developer
the “right” to develop it with high density housing to the maximum limits available. Further, that developer is not subject to the local requirements of conditional use permitting or “other discretionary local government review” under CEQA, including “the use of design review standards” for affordable housing projects.
In light of this Supervisor Rice’s statements and unwavering assurances to not “worry” make a mockery of the intentions and authority of the Department of Housing and Community
Development and our state housing laws by implying that the Housing Element sites inventory list is without legal or procedural consequence. The State Housing Regulations clearly convey
certain “rights” to developers. That is in fact their intention and purpose. How Ms. Rice comes up with her novel legal theories is quite puzzling until we consider the repeated explanations and
recommendations made by Mr. Crawford and Ms. Thomas and County planning staff.
It remains a mystery why planning staff never mentions the legal framework or any of the pertinent facts enumerated above. It’s a question that the Supervisors and the public should be asking. However, when well-known and stringent legal requirements are ignored or downplayed, one can only wonder if a policy agenda is being pushed with the hope that average citizens remain uninformed.