August 30, 2013
|Marin County Board of Supervisors
Marin County Counsel
3501 Civic Center Dr.
San Rafael, CA 94903
Acting Director of HCD
|Re: September 10, 2013 BOS Meeting and Action: Comments and Requests re: Housing Element Update, SEIR, Amendments to Marin 2007 Countywide Plan, Amendments to Development Code and Zoning Maps|
Dear County Supervisors and County Counsel:
This is a joint letter submitted by the undersigned residents and property owners in Strawberry, a community located in unincorporated Marin County. We are writing to comment and request relief regarding the above-referenced meeting and the following: the County of Marin’s proposed draft 2012 Housing Element Update and the corresponding amendments to the 2007 Marin Countywide Plan, Environmental Impact Report, amendments to the Development Code and Zoning Maps, all of which the Board of Supervisors is scheduled to review on September 10, 2013. Our comments and requests are directed to the provisions of the aforementioned county documents and plan documents concerning and potentially impacting the area of Strawberry, including but not limited to, the 73-plus acres of property owned by the Golden Gate Baptist Theological Seminary (referenced herein as either “GGBTS” or “the Seminary”). Some of the undersigned own real property located within 300 feet of the Seminary property and did not receive the required notice of hearings, administrative actions taken, or public meetings that have taken place over the last several years concerning the subject property
While the formal public comment period with the Planning Commission may have closed, these preliminary comments and requests for relief are nonetheless timely because, as explained below, the County failed to provide the residents and property owners in Strawberry with the requisite notice of the Housing Element. Furthermore, I request an extension of 90 days before this board takes any action, to allow an examination by experts and specialists of these matters, including but not limited to, the impact of the proposed action and amendments and evaluation of reasonable alternatives.
As a preliminary matter, we would like to remind (or alert) the Board that the proposed zoning and/or planning for 45-60 units of new affordable-housing units are separate and distinct from the Seminary faculty or student housing entitlement. Indeed, the Department of Housing and Community Development (HCD) rejected designating any part of the Seminary’s faculty and student housing entitlement as “Affordable Housing.” Thus from both a legal and practical perspective, any prior notices, hearings, administrative actions, zoning, environmental impact reports, etc., that related to the Seminary’s current entitlement to build 93 units for faculty and student housing – does not and cannot be utilized for any of the following: (1) to avoid proper notice requirements; (2) to undermine the application and prevalence of the community and master plans, including the Strawberry Community Plan; (3) to rely on a program EIR without preparation of a sufficient EIR for this project; or (4) for any and all other efforts to “piggyback” on the procurement of the Seminary’s 1982 entitlement to build specified student and faculty housing units. Furthermore, the prior EIR is outdated, as the environment has changed significantly since then. This is another reason the County cannot repurpose an outdated EIR conducted decades ago for the Seminary dorms to use for the site designations in the Housing Element and AHCD.
Also, we understand this Board and the Planning Commission has been advised of the conflict the Housing Element designation and proposed AHCD zoning has with the Strawberry Community Plan and the GGBTS Master Plan, particularly regarding development entitlements. Please be advised that Marin County Development Code Section 22.44.035 does not exempt the 45 designated AH units in the Housing Element and the AHCD land use from the requirements of the master plans because, under the specific provisions of the code section, the exemption does not apply if and when the “applicable Community Plan or Community based visioning plan approved by the Board contains policies that directly require Master Plans for development on specific properties.” Here, the community plans mentioned above do exactly that – and as such, this code section may not be invoked as an exemption to the application and prevalence of the more restrictive terms of the community plans. The County has both previously and recently advised that any other housing would require an amendment to the master plans. This Board is not authorized to put the cart before the horse and improperly zone for new housing units without an amendment to the master plans permitting any such development. A project EIR is also required for 45-60 new AH units that are not part of any current entitlement.
Furthermore, project descriptions, and related impact assessments, should also account for reasonably foreseeable future phases, or other reasonably foreseeable consequences, of proposed projects, compliance with which is not evidenced in the EIR. (See Laurel Heights Improvements Assn v. Regents of the University of California (1988) 47 Cal.3d. 376, 393-399).
In addition to the above, there are a host of additional reasons why the Seminary’s entitlement to develop student housing units are not interchangeable with AH units designated in the Housing Element and the AHCD proposed zoning, and, to that end, we reference and incorporate by this reference the comments and letters to the county planners and board submitted by fellow Strawberry resident Bruce Corcoran.
Without waiving any rights, and expressly reserving same, I submit the following comments.
1. The County Did Not Provide Adequate Or Appropriate Notice To Strawberry Property Owners Which Is A Violation Of Due Process And Equal Protection Rights That Will Likely Result In Prejudice And Substantial Injury To Strawberry Property Owners That May Be Avoidable If Remedied Now.
Most Strawberry property owners, including ourself, learned only recently that the County’s Housing Element Update and related proposed amendments and plans seek to designate property for high-density housing in the district of Strawberry. Despite the fact that many Strawberry property owners like me have significant and longstanding property rights, the County did not notify all Strawberry property owners of the many meetings, hearings, and documents related to the designated sites in Strawberry in the Housing Element process. In fact, the Housing Element does not appear to contain any evidence that the County complied with sections 21083.9 and 21092 of the California Public Resources Code, or with section 15087 of Title 14 of the California Code of Regulations with respect to Strawberry property owners.
Perhaps this due-process violation was a result of a significant error in the Housing Element whereby the stated location of the subject property is in the community of “Tiburon.” (Please see 2012 Draft Marin County Housing Element (July 2013) Appendix F Page 12 of 16, a true and correct copy of which is set forth below). Strawberry and Tiburon are two distinct communities and providing notice about a designated site in Tiburon does not suffice as proper or adequate notice for any property in Strawberry. In contrast, the Housing Element properly identified sites in other unincorporated communities, e.g., “Marinwood” and “Almonte.”
2012 Draft Marin County Housing Element (July 2013) Appendix F Page 12 of 16
The County’s failure to provide proper notice to all Strawberry property owners of opportunities to comment upon and discuss the Housing Element and the related SEIR, amendments to the Countywide Plan and codes violates the Strawberry property owners’ Due Process and Equal Protection rights.
Furthermore, the County also failed to provide the required personal and direct notice of all public hearings and administrative actions taken with respect to the many property owners located within 300 feet of the Seminary property. (Marin County Development Code 22.118.020(B)(2)(c).) It is the law of this state and county that “[t]he public shall be provided notice of public hearings and administrative actions in compliance with State law (the Planning and Zoning Law, Government Code Sections 65000 et seq., Subdivision Map Act, Government Code Sections 66410 et seq., and the California Environmental Quality Act, Public Resources Code 21000 et seq.).”
For your convenience, the full text of the County Code referenced above is set forth in full as follows:
Marin County Development Code 22.118.020 – Notice of Hearing or Administrative Action
“The public shall be provided notice of public hearings and administrative actions in compliance with State law (the Planning and Zoning Law, Government Code Sections 65000 et seq., Subdivision Map Act, Government Code Sections 66410 et seq., and the California Environmental Quality Act, Public Resources Code 21000 et seq.).
A. Content of notice. Notice of a public hearing or administrative action shall include the following:
1. The date, time, and place of the hearing or action (or date before which a hearing or action will not be taken);
2. The name of review authority and contact information;
3. A general explanation of the matter to be considered; and
4. A general description, in text or by diagram, of the location of the real property that is the subject of the hearing or action.
If a proposed negative declaration or final environmental impact report (EIR) has been prepared for the project, in compliance with the County’s CEQA Guidelines, the hearing notice shall include a statement that the review authority will also consider approval of the proposed negative declaration or certification of the final environmental impact report (EIR).
B. Method of notice distribution for public hearing actions. Notice of a hearing action required by this Title for a permit, permit amendment, appeal, or amendment shall be given as follows, as required by State law including Government Code Sections 65090, 65091, and 65092:
1.Notice shall be published at least once in a local newspaper of general circulation in the County at least ten days prior to the decision; and
2.Written notice shall be mailed or delivered at least ten days prior to the decision to the following parties:
a. The owner(s) or owner’s agent of the property being considered, and the applicant;
b. Each local agency expected to provide essential facilities or services to the project, whose ability to provide the facilities and services may be significantly affected by the proposed project, unless the local agency has accepted an alternative means of receiving notification through an on-line method of delivery;
c. All owners of real property within 300 feet of the property which is the subject of the public hearing action, as shown on the County’s latest equalized assessment roll, if the zoning for such property requires a minimum lot area of less than 20,000 square feet or a maximum density higher than two units per acre.”
Here, the subject property of both the Housing Element designation and the AHCD, to name two specific impacts, is the entire 73-plus acres of property owned by the Seminary. Thus, the County was required to provide written notice for each and every hearing, administrative action, and public meeting on the Housing Element and related amendments and zoning changes that have occurred over the last several years to each and every property owner within 300 feet of Seminary property. This notice should have been provided to hundreds of property owners, but was not. As such, the notice and any action thus far is ineffective as to the Seminary site of the draft Housing Element – as well as to the amendments to the Development Code, the amendments to the Countywide Plan, the SEIR and all other proposed actions cannot property apply to the Seminary property.
The July 2013 “notice” from District 3 County Supervisor Kathrin Sears about the Housing Element, which she e-mailed to only the residents who signed up for her distribution list, is not timely or sufficient. Specifically, it fails to provide the notice required in the code section above. Also, this “notice” came years after this process began and after the Marin County Planning Commission voted to okay the draft Housing Element for presentation to the Board of Supervisors for approval.
These errors and defects are substantive in nature and are not merely typographical, technical, or formatting errors. As such, inclusion of the Seminary site from the Housing Element Update as well as the AHCD is improper and should be severed from any documents going forward. In the alternative, we request an extension of at least 90 days for ourselves and other Strawberry property owners to consult with experts so we may prepare and submit thorough comments and objections. Moreover, we request that the County permit the Strawberry property owners to prepare and submit comments upon the SEIR before it adopts the Housing Element Update and amendments to the Countywide Plan, Development Code and zoning maps.
In addition to the due-process violations, there appear to be numerous substantive deficiencies as well, even at a preliminary level of review, with the current proposed Housing Element Update, SEIR, and related amendments.
2. The Public Review Process Of The SEIR Pertaining To Strawberry Property Was Inadequate And Deficient.
The requirements for public notice and public participation are even more rigorous with respect to the SEIR. “Public participation is an essential part of the CEQA process.” CEQA Guidelines §15201. “Environmental review derives its vitality from public participation.” (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396, 400.) “Comments are an integral part of the [final] EIR.” Sutter Sensible Planning, Inc. v. Board of Supervisors (3rd Dist. 1981) 122 Cal.App.3d 813, 820.)
The requirements for public review and participation under CEQA were not satisfied with respect to property located in Strawberry. “The purpose of requiring public review is to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action. Public review permits accountability and informed self-government…Public review ensures that appropriate alternatives and mitigation measures are considered, and permits input from agencies with expertise…Thus, public review provides the dual purpose of bolstering the public’s confidence in the agency’s decision and providing the agency with information from a variety of experts and sources. (Schoen v. Department of Forestry & Fire Protection (1st Dist. 1977) 58 Cal.All.4th556, 573-574 (internal quotation marks and citations omitted); see also Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (6th Dist. 2001) 87 Cal.App.4th 99, 133.
3. The County Must Recirculate the General Plan Update and Associated Specific Plans Environmental Impact Report
In addition to the comments above, it appears the County has made several significant changes to the documents. Those changes were never circulated for additional public review as required under section 21092.1 of the California Public Resources Code and section 15088.5 of Title 14 of the California Code of Regulations. In addition, We are not aware of any substantial evidence supporting the County’s decision not to recirculate. See Cal Code Regs. tit. 14, § 15088.5(e).
Therefore, we respectfully request that the County recirculate the EIR prior to taking action on property in Strawberry, including but not limited to the Seminary property. At minimum, the recirculation process should include public notice and the opportunity to comment. See Cal Code Regs. tit. 14, § 15088.5(d).
4. The County Failed to Conduct Required EIRs for the Seminary Property.
The Countywide Plan Update and Associated Specific Environmental Impact Report appear to be styled a “Program EIR” or even a “First-Tier EIR.” The CEQA Guidelines encourage lead agencies to use Program EIRs for broad policies, programs, and plans. See, e.g.,Cal Code Regs. tit. 14, § 15168. But they also make it clear that agencies must conduct additional environmental review of specific implementation actions which are not fully evaluated in the Program document. Id.
Here, the SEIR falsely assumes a project EIR is unnecessary for the Hosing Element and AHCD (not just the Countywide Plan Amendments) based on the assumption the County can piggyback on a prior EIR for the Seminary entitlements to develop 93 faculty and student housing units. But as discussed above, the AH units are not interchangeable with the student housing entitlement and reliance on an EIR for the student housing is insufficient and fails. Therefore, CEQA mandates that the County conduct additional environmental review prior to acting on the Housing Element update or any other plan document.
6. Because The Certification Of The AHCD, Housing Element And Other Amendments To The Countrywide Plan, Development Code And Zoning Maps Are Being Made In Order To Procure Federal Funds Through OBAG, The National Environmental Policy Act Applies And Must Also Be Satisfied Before Any Action Is Taken.
Because Federal money will be received if these plan, code and zoning changes are made, National Environmental Policy Act (NETA) must be satisfied as well. Specifically, the NETA requires all Federal agencies to, among other things:
- Assess the environmental impacts of major Federal projects, decisions such as issuing permits, spending Federal money, or actions on Federal lands.
- Consider the environmental impacts in making decisions.
- Disclose the environmental impacts to the public.
When an agency concludes that a proposed Federal action has the potential for causing significant environmental impacts, it is required to prepare a detailed statement about those potential environmental impacts, namely an Environmental Impact Statement (EIS).
There is not mention or reference NETA has been complied with thus the proposed amendments and Housing Element may not be approved by the Board unless and until an EIS is prepared and submitted.
7. The SEIR Contains a Number Of Substantive Deficiencies That Preclude Approval by this Board of the SEIR as Currently Drafted.
As it pertains to Strawberry and more specifically the Seminary property, the SEIR fails to do all of the following:
1) It fails to provide a summary of the proposed project and its consequences in language as clear and simple as is practical;
2) It fails to provide the projects’ location; a description of the environmental setting, both local and regional, in which the proposed projects will occur. Furthermore, project descriptions, and related impact assessments, should also account for reasonably foreseeable future phases, or other reasonably foreseeable consequences, of proposed projects, which is not evidenced in the EIR. (See Laurel Heights Improvements Assn v. Regents of the University of California (1988) 47 Cal.3d. 376, 393-399).
3) It fails to discuss any inconsistencies between the proposed projects and applicable general and/or regional plans;
4) It fails to describe the significant environment impacts of the proposed project, etc, explaining which if any, can be mitigated;
5) A statement of measures, if any, proposed to mitigate such environmental impacts both local and regional;
6) An analysis of reasonable alternatives to the proposed projects; and analysis of the proposed project’s “growth-inducing impacts”;
7) A statement explaining why impacts identified as insignificant were determined to be such;
8) A list of all federal, state, and local agencies, other organizations, and private individuals consulted in preparing the draft EIR; and
9) The persons, firms, or agency preparing the document, by contract or authorization; and an analysis of the proposed project’s cumulative impacts.
CEQA Guidelines §§15122-15130; see also Pub. Resources Code §21100.
In addition, because this project involves the adoption, amendment, or enactment of a plan, policy or ordinance of a public agency and/or the adoption by a local agency of a resolution making determinations, and/or requires an environmental impact statement pursuant to NEPA, the County EIR must also address any significant irreversible environmental changes that would be involved in the proposed action should it be implemented. (CEQA Guidelines §§15127 15126.2 (c).)
One overarching reason the County EIR fails to comply with the CEQA requirements listed above, is because it impermissibly “piggybacks” on a prior EIR for the development of student and faculty housing. As discussed above, the proposed new development is separate and distinct from the Seminary’s entitlement and reliance on the prior EIR is fatally inadequate.
In fact, if a proper EIR had been conducted, it would have been discovered that there is a very good reason that the open space in Strawberry has not been developed: the Strawberry peninsula is entitled to significant protection of its coastal and wildlife environment by the Dept. of Fish and Game as a protected game reserve, the BCDC has zoned it a protected coastal environment, and numerous other federal, state, regional and local environmental protection agencies and entities confer protections to this area and its sensitive coastal environment. What’s more, the subject property is the designated site for both FEMA and the Red Cross in the event of emergencies and natural disasters, a protection and benefit for the entire region of Southern Marin. Furthermore, much of this area throughout Strawberry Peninsula and along the 101 Strawberry corridor is in a flood zone and subject to sea level rise as evidenced on national, regional and local maps.
In addition to the many compelling environmental protections and concerns, the EIR is insufficient as it fails to properly consider and address all of the following:
A. Zoning and General Plan Consistency
A review of the ordinance and underlying master plan policies indicates that the project is not permissible under the site’s zoning designation and master plans and, therefore, is infeasible. Specifically, the site is currently zoned for residential housing of 1-4 units per acre, but the proposed changes provide for development up to 30 units per acre on at least two acres. As discussed above, the prosed project zoning would require an amendment to the master plans. But the project does not propose to seek any of these approvals.
B. Aesthetics/Visual Quality
The CEQA standards for significance of visual impacts are bracketed by several court decisions that considered different factual situations. Most relevant to this project are the Ocean View Estates (Ocean View Estates Homeowners Association, Inc. v. Montecito Water District, 116 Cal.App.4th396.), Pocket Protectors (The Pocket Protectors v. City of Sacramento, 124 Cal.App.4th903), and Clover Valley (Clover Valley Foundation v. City of Rocklin and Town of Loomis v. City of Rocklin, 3rd District, July 8, 201) decisions. In summary, these decisions found that:
- Aesthetic impacts are subjective.
- Impacts on private views as well as public views may be significant under CEQA.
- Personal observation on non-technical issues such as aesthetic impacts can constitute substantial evidence.
- Substantial evidence of aesthetic impacts can include opinion of area residents and architect, and Planning Commission findings.
- Aesthetic concerns included “tunneling,” insufficient shade trees, intrusions of development into the greenbelt, and excessive massing of housing.
- Consideration of the overall aesthetic impact of changing the visual character of the site as significant was not in conflict with its findings with respect to specific views.
These decisions are instructive in assessing the adequacy of the consideration of aesthetic impacts as follows. The Ocean View Estates decision (and many other prior cases) establishes that consideration of aesthetic impacts is required under CEQA. As detailed below, the EIR fails to fully evaluate the unmitigated negative aesthetic impacts of the project in spite of voluminous public input on this issue.
The Pocket Protectors decision established that neighborhood residents are considered experts on the significance of visual impacts from projects proposed in their neighborhoods. There are many residents in Strawberry, including ourself, who have concerns and objections to high-density housing, including aesthetic concerns and objections. CEQA requires that, if disagreeing experts present substantial evidence that a project would or would not have a significant impact, the EIR need only to describe both experts’ opinions and then can select the expert of its choice. The question, then, may be whether the EIR contains substantial evidence that the aesthetic impact is not significant. However, it needs to be noted that the local residents’ expertise is greater than that of an EIR consultant’s, given that the local residents have daily exposure to the visual character of a site. Therefore, as found in the Pocket Protectors decision, local residents’ opinions on the significance of aesthetic impacts carries great weight. In addition, a careful review of the EIR’s Aesthetic section finds no actual evidence supporting its conclusion of non-significance of the project’s aesthetic impacts with respect to the physical environment.
To the extent the EIR relies on policy compliance as a proxy for actual assessment of the lost visual resource is, in itself, a flawed approach. While policy compliance may be considered as evidence of an impact’s significance level, it is not determinative (see, for exampleBerkeley Keep Jets Over the Bay v. Board of Port Commissioners, 2002, which found that compliance with noise policies do not necessarily assure less-than-significant noise impacts). CEQA requires a focus on impacts to the physical environment, not just policy conformance.
C. Traffic and Access Issues
We note the EIR contains some mitigation measures but delegates implementation of those mitigation measures to “another agency.” This is insufficient as there is no evidence presented in the EIR that any other agency has the resources and funds to implement the mitigation measures. Further, it appears the mitigation for the site access will not adequately mitigate the potential safety hazards.
D. Project Objectives and Alternatives
Overly narrow project objectives resulted in an inadequate range of alternatives. The CEQA Guidelines make clear that the project objectives drive the agency’s selection of a reasonable range of alternatives. Alternatives must meet most of the project objectives and avoid or substantially lessen one or more of the project’s significant impacts (CEQA Guidelines Section 15124). CEQA (Guidelines Section 15124) requires that the lead agency, as the entity responsible for implementing the CEQA process, vet the project objectives for compliance with CEQA. Project objectives may not be so narrowly construed so as to preclude meaningful consideration of alternatives (City of Santee v. San Diego County, 1989). The Project Objectives are too narrowly defined to allow adequate and meaningful consideration of alternatives and effectively rule out meaningful consideration of alternatives and is, although an objective of the applicant, impermissible as a project objective in a CEQA context.
The EIR also fails to address the impacts of alternatives. This non-treatment of alternatives is expressly prohibited by CEQA case law. As detailed in the Laurel Heights 1 decision (Laurel Heights Improvement Association of San Francisco, Inc., v. The Regents Of The University Of California, Supreme Court of California, 47 Cal. 3d 376, 1988), this level of “analysis” of alternatives is insufficient for CEQA compliance.
Finally, we note that alternatives and mitigation measures have the same function – diminishing or avoiding adverse environmental effects. The chief goal of CEQA is mitigation or avoidance of environmental harm. To argue that only mitigation measures need be discussed overlooks the fact that alternatives are a type of mitigation.
We hold that under CEQA an environmental impact report must include a meaningful discussion of both project alternatives and mitigation measures…..
UCSF’s treatment of alternatives was cursory at best. The draft EIR identified three types of alternatives: no project anywhere, alternative sites on the UCSF Parnassus campus, and alternative sites off-campus. The three categories received a scant one and one-half pages of text in an EIR of more than 250 pages.
Furthermore, conclusions of economic infeasibility of alternatives (which form the basis of the CEQA findings for project approval) must be supported by fact/evidence in the record. (See, for example, Sierra Club v. Contra Costa County, 1992, which concluded, “[i]n short, there are significant assertions set forth in the statement of overriding considerations which could support the policy choice made by the County. Unfortunately, these assertions are unsupported by the final EIR or other information in the record.”
There are numerous other defects that we will address as soon as we have the opportunity to consult with professional experts on these subjects. In the meantime, it is our opinion that the deficiencies described above are substantial and render the Housing Element, EIR, and other amendments to the code, zoning map and county codes inadequate. The County should suspend any action on these draft documents and proposed amendments, at least as they apply to the district of Strawberry, for at least 90 days and should also prepare and recirculate for public review a revised EIR addressing the issues identified in this letter.
Staci Simonton Richard L. Harris
Cc: Marin County Planning Commission
August 30, 2013
|Marin County Board of SupervisorsMarin County Counsel3501 Civic Center Drive
San Rafael, CA 94903
|Re: September 10, 2013 BOS Meeting and Action: Comments and Requests re: Housing Element Update, SEIR, Amendments to Marin 2007 Countywide Plan, Amendments to Development Code and Zoning Maps|
Dear County Supervisors, County Counsel and Director:
I am a 25 year resident and property owner in Strawberry. I am writing to ask you to postpone adoption of the draft 2012 Housing Element Update and allow us 90 days to propose an alternative that better accomplishes the goals of (i) increasing affordable housing and (ii) reducing GHG by co-locating housing, jobs, and services thus eliminating the need for passenger vehicles and/or shuttle vans. While I recognize that the formal public comment period with the Planning Commission has closed, I hope you will consider my views as I did not receive notice of hearings, administrative actions taken, or public meetings required for property owners within 300 feet of the Seminary property.
My basic objections to the Housing Element and the proposal to site 45–60 units of new affordable housing in the Baptist Theological Seminary are as follows:
- it sites the affordable housing in a location 8/15 miles away from the major Marin County employment nodes violating the goal of reducing vehicle trips;
- it changes the basic compact entered into between the Baptist Theological Seminary, Strawberry residents, and Marin County in 1982 and 1984;
- it changes the nature of the Seminary’s housing entitlements from religious housing to something much more commercial without due process;
- it fails to recognize the contribution Strawberry has already made to affordable housing in the form of developer in-lieu payments — payments that were used outside Strawberry;
- it exacerbates an already critical traffic problem;
- it significantly changes the Strawberry esthetic and quality of life;
- ingress and egress to the project is through a designated flood zone;
- ingress and egress to the project is through an area created with landfill and subject to seismic activity
- it threatens the natural habitat and endangered species in the Belloc Lagoon; and,
- it will further tax our overcrowded schools.
I think many residents think that the Baptist Seminary was a convenient place to dump 45–60 units of affordable housing and thereby satisfy HDC and HUD. Further, if passed as currently drafted, the Housing Element will undoubtedly trigger a legal challenge and add to the discord and suspicions residents already feel. There’s an opportunity here to engage the Strawberry community in a solution that’s a win for all parties.
Please postpone adoption of the draft 2012 Housing Element Update and allow us 90 days to propose an alternative.
/s/ Richard L. Harris, Jr.
County of Marin
Board of Supervisors and Planning Department
Marin Civic Center
San Rafael, CA
August 29, 2013
SUBJECT: COMMENTS ON THE ADEQUACY OF THE ENVIRONMENTAL IMPACT REPORT FOR THE MARIN COUNTY HOUSING ELEMENT, SPECIFIC TO STRAWBERRY
Honorable Supervisors and Planners:
I am a 19-year resident and 20-year property owner in Strawberry (and therefore local expert), a community located in unincorporated Marin County and purportedly represented by Supervisor Kate Sears, though that issues appears very much in doubt at this time.
I am writing to comment and request 90 days relief on the matter regarding the Supplemental Environmental Impact Report (EIR) corresponding to the 2012 Housing Element Update to the 2007 Marin Countywide Plan, which the Board of Supervisors is scheduled to review on September 10, 2013.
Specifically, I am writing about the provisions related to the 73-plus acres of property owned by the Golden Gate Baptist Theological Seminary, as I challenge that a) the EIR adequately considers the facts and factors surrounding current population, proposed population growth, and environmental and infrastructural impact, and b) adequately considers alternatives that do not consider the environmental and infrastructural impact, as required by CEQA. Ignoring these factors, especially as this same Board of Supervisors and Planning Department has designated Strawberry as a “Priority Development Area” in order to streamline environmental objections in the future, makes this manipulation particularly underhanded, in conflict with the wishes of the Strawberry community, and certain to change the fabric of the Strawberry community.
While I am confident that Supervisor Sears will soon enough be called to account for her blatant lack of representation for her constituents, I am requesting relief and a 90-day extension before any action by the Board, in order for the Strawberry Community to provide an examination by experts and specialists in these matters, including but not limited to a more complete evaluation of the proposed actions and amendments or evaluation of reasonable alternatives.
As noted in a letter dated and sent today by Staci Simonton, a fellow Strawberry resident and property owner, the county failed to provide adequate notice to the Strawberry neighborhood, and more specifically neighbors within 300 feet of the Seminary property; therefore, these objections should be considered timely regardless of the designated public comment period.
Regardless, I understand the County is required to consider all relevant correspondence submitted to it prior to taking an approval action (Galante Vineyards v. Carmel Valley Water District, 1997).
In addition to the many unresolved objections to the Housing Element (HE) and Supplemental Environmental Impact Report (SEIR), the Strawberry community has identified a considerable number of issues in the SEIR and Housing Elements, along with numerous state and local documents, which indicate that the Strawberry Peninsula as a whole has factors that were ignored or misrepresented in the EIR and SEIR.
I believe that the Board’s and Planning Department’s desire to acquiesce with One Bay Area and the wealthier cities and towns of Marin – (in the name of preserving other open space in the county) has caused it to unduly designate a 73-acre open space game refuge in the Baylands Corridor – almost all of which is within 2000 feet of Bay Corridor land in any direction, with already unacceptable levels of traffic, flooding and infrastructure support – as an area to be rezoned for high density housing of 30 units/acre (exacerbated to higher levels by PDA designation), without adequately considering either impact or alternatives, and leaving itself open to future legal action regarding development in this area.
Without waiving any rights, and expressly reserving same, I submit the following comments:
1) Regarding EIR/SEIR inadequacies and misrepresentations:
Because SB375 and/or PDA status allows for streamlining environmental review once a Program EIR has been approved, the Program EIR must provide adequate review. Since the specific site of the 2 acres planned for development has not been identified, an adequate environmental review is not yet possible. If the entire Seminary property is being approved as a Program EIR pursuant to SB375/PDA status, some or all of these objections may apply, depending on the exact location of the proposed development.
The SEIR indicates an impact of “Unacceptable Levels of Service” on SR 131 from US 101 to Strawberry Drive (Impact 4.2-4), as well as impact of “Unacceptable Level of Service” on Strawberry traffic (Impact 4.2-23) . The mitigation plans are acknowledged to be unable to reduce the impact to less than significant levels.
“Based on the analysis conducted for this Draft SEIR, the residential development that could occur under the 2012 Draft Housing Element would continue to have a significant unavoidable impact as identified in the 2007 Countywide Plan EIR at the remaining screenlines and intersections plus the projected increased (sic) in vehicle miles traveled.”
Further, the path of adding 60-90 additional units in the Seminary is inconsistent with the Strawberry Community Plan, in which Transportation Priority 1b is:
“Reduce peak hour congestion at the Tiburon Blvd./US 101 interchange”
Is it the county’s position that there is no place to develop in the entire county that would not create new “Unacceptable Levels of Service” of traffic? No alternative to this particular development here is considered.
c) Schools and infrastructure
The Public Services Discussion section of the Draft SEIR reads as follows:
14 (c) As discussed in the 2007 Countywide Plan EIR, implementation of the Countywide Plan would increase demand for public school services beyond the existing public school capacity, resulting in the need for new facilities. Countywide Plan policies and programs are in place that would reduce construction related impacts to a less-than-significant level. This previously identified less-than-significant impact related to construction of new school facilities (Impact 4.10-12) would remain less-than-significant.
While this may be true on a county-wide basis, it’s clear to the residents of Strawberry – including residents who live on Strawberry Circle immediately adjacent to Strawberry Point School and yet whose children are required to attend Old Mill or Edna Maguire – that the current school infrastructure for Strawberry is inadequate. The SEIR as it relates to Strawberry site 12 is laughably inaccurate in this regard. Yet, an additional 60-90 affordable housing units are proposed with this Draft SEIR provided as a Program EIR that can be used to streamline environmental approvals under a PDA. There is clearly no place for children of those units to attend school in the existing Strawberry infrastructure. Especially as a Program EIR, the SEIR is clearly inaccurate to the site and inadequate.
Additionally, SMFD Chief Jim Irving and the actual Marin Sheriff (who should have provided the opinion as to impact on police facilities) should be confident that there will be great campaigning against increasing their budgets over the next years, given their statements that increasing Strawberry population by over 5-10% will have “less-than-significant impact” on each of their departments.
d) Environmental consideration
Policy BIO-3.1 of the Countywide Plan, quoted as applicable to this project in the SEIR, reads as follows:
Require development to avoid wetland areas so that the existing wetlands and upland buffers are preserved and opportunities for enhancement are retained (areas within setbacks may contain significant resource values similar to those within wetlands and also provide a transitional protection zone). (italics added)
A 1984 Bay Conservation and Development Commission report on Richardson Bay indicates, in addition to the entire Strawberry Peninsula’s designation as a Wildlife Refuge, that:
“Buffer areas should be maintained around restored and enhanced wetland areas to insulate the wetlands from human intrusion and provide upland wildlife habitat…
“Richardson Bay and its immediate surrounding upland area provide an environment for a wide range of aquatic and wildlife species because of the close proximity of many diverse habitats and the Bay’s location sheltered from strong winds, waves, and tides. These habitats can be generally classified as: (a) marine, estuarine, and subtidal channel and basin water areas; (b) tidal and diked marshes; (c) rocky shore, sandy-pebble beach, mud flat, and artificial structure shorelines; and (d) upland areas.”
“Upland habitat provides a buffer area for water and marsh area wildlife, particularly shorebirds and migratory waterfowl, insulating the water areas from upland urban activity. Further, upland areas provide shelter and a food foraging area for Bay-related wildlife, particularly shorebirds, during periods of very high tides.”
The Strawberry Peninsula has 3 such wetland habitats, and is surrounded by the Baylands Corridor on all sides but the northwest. Wildlife is found throughout the peninsula.
Zoning the rest of the peninsula City Corridor and zoning for 30-45 units/acre is blatant disregard for protecting the shoreline and other wildlife living in the current peninsula refuge.
Is it the county’s position that no alternative site for development could be found in the county that would not jeopardize this environmental balance to such a degree?
Given the clear and obvious impact to the Strawberry community, CEQA law mandates analysis of alternatives, including mitigation and avoidance of environmental harm. InLaurel Heights Improvement Association of San Francisco, Inc., v. The Regents Of The University Of California, Supreme Court of California, 47 Cal. 3d 376, 1988, it is clear that:
“…under CEQA an environmental impact report must include a meaningful discussion of both project alternatives and mitigation measures.”
While Strawberry is an inviting target to place up to 90 AH units to meet county goals for their $1.25M in funding, clearly there are significant local issues with this site that are not even being acknowledged let alone mitigated, and for which alternatives are not being considered.
Especially as the SEIR amendments make clear that this is purported to be a Program EIR (enabling streamlined development), it’s clear that little or no consideration for the actual circumstances around the Seminary area for Strawberry site 12 have been taken into account, and that, given the numerous other substantively unaddressed defects and problems we will address once we have the opportunity to consult with professional experts on these subjects, this SEIR is woefully inadequate.
The County should suspect any Board action on these documents, at least as they apply to Strawberry, for at least 90 days to allow the citizens of Strawberry the opportunity to provide you with more complete documentation with the right information about our community that will enable you to confidently approve a 2012 Housing Element and SEIR that will not be subject to unceasing environmental and infrastructural challenge from the community.