Strawberry Community Association

Strawberry's Voice in Marin

Strawberry Community Association

Letter Housing Element September 14, 2013

September 14, 2013


Marin County Board of Supervisors Marin County Counsel
3501 Civic Center Dr.
San Rafael, CA 94903

Re: UPPATE to September 17, 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 an updated supplemental letter submitted by the undersigned residents and property owners in Strawberry, a community located in unincorporated Marin County. We are writing to comment on the inadequacy of the environmental impact analysis, and request relief regarding the above-referenced meeting and the following agenized board actions:

1. The proposed “Supplemental” Environmental Impact Report (“SEIR”) and its failure to evaluate the environmental impacts and mitigation measures, both individually and cumulatively, of all the proposed board actions, including inadequate evaluation of 363 new high-density, tax-exempt housing units in Strawberry (see, e.g., SEIR, Sites 12, 21-25, and 50);

2. The expanded application of the Housing Overlay Designation (“HOD”), with minimum density of 30 tax-exempt residential units per acre;

3. The creation [in the proposed amendments to the CWP] and application [in the proposed 2012 draft Housing Element] of an Affordable Housing Combining District (“AHCD”), including but not limited to application at the site at the GGBTS (Site 12); and

4. The proposed wholesale amendments to the County Development Code, 2007 Countywide Plan, and County Zoning Map so that the entire CDP of Strawberry, including all residential, commercial, and mixed-use would be effectively zoned for tax- exempt residential housing, including high-density tax-exempt housing, among other things.

As set forth in this letter, it would be an obvious and unmistakable abuse of discretion if this Board approves or certifies the environmental impact analysis (in the form of a “FSEIR”) and then relies on that defective environmental impact analysis to

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approve any or all of the other amendments and items on the agenda. To be clear, this is not just about the 2012 Housing Element: an environmental impact report is legally required for each of the actions, i.e., “projects” under well-established law, including the amendments to the Development Code, the changes to the zoning map, the narrative Amendments to the countywide plan, as well as the 2012 Housing Element “update.”

Unless this Board opts to act in overt defiance of the law, the Board cannot (and hence should not) approve any item on the above agenda in any form. Put simply, it is legally impermissible to prepare either a “supplement” or “subsequent” EIR for these projects, or a “program” styled EIR for these projects; the CEQA Guidelines, statutes and case law previously cited by the County in support of this incomplete and defective approach DO NOT SUPPORT it. To the contrary, the statutes, CEQA Guidelines and governing case law actually state and hold that this approach is not permissible or sufficient. The result of this and other numerous other deficiencies is a wholly inadequate environmental impact report that is the foundational prerequisite to approving or moving forward with any amendment on the agenda.

The duty to comply with CEQA rests solely and exclusively on this Board. By law, this Board cannot defer to staff or planning commission reports. This Board must make independent factual findings and evaluations after reading all of the referenced source material. Because this Board cannot defer to the conclusions and analysis of staff or other county commissions, as a courtesy, this letter provides comprehensive legal authority governing the CEQA requirements of this Board as well as the statutory and case law that sets forth the required environmental review, which as mentioned above, has not been done.

There are solutions. Indeed, what this Board can and should do is go back to the California Department of Housing and Community Development (“HCD”), now under new direction, to obtain approval of the previously HCD-rejected Housing Element that allows growth at densities consistent with the current 2007 Marin Countywide Plan, Zoning Maps, and Development Code, and given that HCD has recently stated it would count the GGBTS student and staff housing towards the County’s RHNA numbers, the consistent Housing Element should be augmented in at least two important ways:

(1) Add the current existing entitlement of GGBTS for 93 student and staff housing units as provided in the existing Master Plan, without modifying any zoning, creation or application of overlay zoning, or any other action.

(2) Add and include the hundred-plus current student and staff housing units at the GGBTS, all tax-exempt housing units, in the calculation of the number of affordable- housing units already supplied. (If there is a concern from HCD about new development,

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you are aware the GGBTS has recently indicated it needs to replace existing student and staff housing, the County’s RHNA numbers should also include any new project proposed by GGBTS relating to the new construction of student and staff housing, in addition to the 93-unit entitlement.)

Also, the County could and should count and include all the “market-rate” housing in Strawberry (and elsewhere in the County) that is indeed affordable to lower- income individuals and families. These are many such units in Strawberry.

HCD does not have authority or jurisdiction to dictate that this County revise or amend our 2007 Countywide Plan, our county Development Code, zoning regulations, etc. We strongly suspect and are hopeful that with this new information of tax-exempt housing for low and lower-income individuals and families, the HCD would indeed certify the prior Housing Element as “substantially compliant”- the legal standard- which would give this County a “timely” certified Housing Element. This Board must make a good-faith effort to approach HCD and advocate for maintaining the community character, a balanced infrastructure, zoning, density, etc., of this County.

This Board has an opportunity to be heroes to this community and demonstrate to the entire county that its elected supervisors acknowledge their responsibilities and have the vision and wherewithal to manage responsibilities in a way that does not unduly and negatively impact important matters such as public services, schools, property rights, traffic, and the sensitive environments that comprise the character of this county.


As you are all now aware, the County repeatedly failed to provide the residents and property owners in Strawberry with the requisite notice of the SEIR, the Housing Element, and other amendments to the 2007 Countywide Plan that directly impact property-owners in Strawberry. Per the County’s new notice:

“This notice and the new hearing date are intended to insure that adequate notice has been provided to owners of specific properties affected by the recommended Countywide Plan and zoning amendments, neighboring property owners and interested members of the public. The new hearing date also provides a limited amount of additional time for members of the public to provide input prior to the rescheduled September 17, 2013 hearing.”


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The county documents still misidentifies critical Housing Element sites as located in “Tiburon.” Although this meeting was extended by seven (7) days in a last-minute effort to comply with the notice requirements, that is insufficient as it fails to remedy the extreme prejudice of failed property notice for the many hearing, administrative actions and proceedings on these matters over the last 12 months. It is simply too late in this process to provide a mere week of notice. The process must start anew in order to comply with the notice requirements and CEQA notice and participation requirements. Currently, the entire process thus far is null and void.

Public participation is an essential part of the CEQA process. (14 California Code of Regulations [hereafter CEQA Guidelines] §15201; Emmington v. Solano County Redevelopment Agency 195 Cal.App.3d 491, at 503.) Compliance with the EIR provisions of CEQA serves the important function of enabling the public to make its own “independent, reasoned judgment” about a proposed project. (Ibid. at 503, Public Resources Code [hereafter PRC] §15201). Information relevant to the significant effects of a project and the mitigation measures shall be made available to the public as soon as possible by a lead agency (PRC §21003.1) so that the public may formulate and submit its comments in a timely manner. The public’s comments are an integral part of the [final] EIR. (Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal. App.3d 813, 820).

We therefore again request an extension of at least 90 days before this board takes any action on the above, to permit such actions as the examination by CEQA consultants and specialists of these matters, including but not limited to, the impact of the proposed action and amendments and evaluation of reasonable alternatives. Given the county’s repeated failure to provide proper notice of the numerous past hearings, failure to permit this reasonable extension of time to complete the analysis would result in extreme and irreparable prejudice to the property-owners in Strawberry, including but not limited to the opportunity to retain expert consultants to evaluate environmental impacts not evaluated or adequately or correctly considered in the SEIR.


There are numerous apparent fatal legal deficiencies in the County’s environmental review it conducted on the above-referenced projects that must be addressed and remedied before the Board of Supervisors can take any action on any of the above agenda items. Although 3 of the 6 members of the Planning Commission has approved the draft environmental review this Board, as the designated “Lead Agency,”

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has an affirmative duty to ensure full compliance with CEQA. Indeed, “the certification of a legally inadequate EIR is a prejudicial abuse of discretion.” Pub. Resources Code § 21005 (a); Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 428.)

CEQA requires not only de novo review by a board of supervisors, but de novo fact finding as well. The lead agency’s decision-making body cannot fulfill its CEQA duties simply by “considering the EIR before approving it.” (Burger v. County of Mendocino (1975) 45 Cal.App.3d 322, 326.) Furthermore, the lead agency’s decision- making body cannot delegate its obligation to “review and consider” a final EIR to another (inferior) entity within the agency hierarchy. (CEQA Guidelines §15025.) Such “[d]elegation is inconsistent with the purpose of the review and consideration function since it insulates the members of the [decision-making body].” (Id.)

“Because the EIR must either be certified or rejected by public officials, it is a document of accountability.” Laurel Heights at 392. Also, when relying on documents which have been incorporated by reference, the lead agency must certify that it has actually reviewed and considered the referenced documents. (Citizens of Goleta Valley v. Santa Barbara (1988) 197 Cal.App.3d 1197 (Goleta I), emphasis added.) Moreover, a lead agency is required to thoroughly investigate the existing environmental setting. San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, (1994) 27 CA4th 713, 726. “While forecasting the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can.” (14 CCR 15144.)

CEQA places the burden on the approving agency to affirmatively show that it has considered the identified means of lessening or avoiding the project’s significant effects. Resource Defense Fund v. Local Formation Agency (1987) 191 CA3d 886, 898. If the reviewing court determines that the agency has failed to comply with CEQA in certifying the EIR or approving the project, the court must order one of the following: (1) a mandate that the determination, finding or decision be voided by the public agency in whole or in part; or (2) a mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division. (See Public Resources Code §21168.9.)

Where an agency has failed to comply with CEQA, its actions may be set aside, even though the agency’s breach or omission would not have changed the outcome of the agency’s decision. (Resource Defense Fund v. Local Formation Agency 191 CA3d 886, 898 (1987).)

“[E]vidence outside the EIR itself is beside the point. It is the adequacy of the EIR with which we are concerned, not the propriety of the board of supervisor’s decision to

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approve the project. Whatever is required to be in an EIR must be in that formal report; what any official might have known from other writings or oral presentations cannot supply what is lacking in the report.” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, (1994) 27 CA4th 713, 734.)

Generally speaking, an EIR must identify and analyze of the following:

(a) Significant Environmental Effects of the Proposed Project.

(b) Significant Environmental Effects Which Cannot be Avoided if the Proposed Project is Implemented.

(c) Significant Irreversible Environmental Changes Which Would be Involved in the Proposed Project Should it be Implemented.

(d) Growth-Inducing Impact of the Proposed Project.
(e) The Mitigation Measures Proposed to Minimize the Significant Effects. (f) Alternatives to the Proposed Project.

CEQA Guideline 15126(a), provides, in pertinent part: “An EIR shall identify and focus on the significant environmental effects of a proposed project. Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to short term and long term effects. The discussion should include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use of land, …and other aspects of the resource base such as water, scenic quality, and public services.”

Here is a preliminary list of overarching defects in the environmental analysis:

● The SEIR fails to comply with CEQA Guidelines’ Section 15126.2 (a requirements that “Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects. The discussions should include the relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems….and other aspects of the resource base such as water, historical resources, scenic quality, and public services.”


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The SEIR fails to address important area-wide issues, particularly pertaining to environmental and wildlife issues. The importance to, and oerall project impactson special status species, are not evaluated in terms of the overall plan.  Similarly, mitigations that can only be addressed at the plan level, such as habitat conservation plans, are not evaluated in this document, but rather inappropriately deferred or avoided.

● The project impact assessment fails to assess potential individual or cumulative impacts of the project over the next 5-20 years, many of which will be significant, in fact, more significant than those of the project. This includes individual and cumulative impacts to existing infrastructure. CEQA requires the analyses of all project impacts, for example, the construction of new schools somewhere and the construction of new buildings to manage increased demand for public services.

● The SEIR repeatedly defers project-site specific studies, despite containing a detailed list of 49 sites proposed for the upcoming 8 years of the plan. Even if a program EIR were acceptable, which it is not, programmatic EIRs may appropriately defer some analyses to future site-specific environmental reviews, only when impacts and projects are speculative. Here the myriad impacts and projects are not speculative, they are reasonably foreseeable.

● The document’s analytical approach is academic and conclusatory, rather than critical. The impact analyses do not take a worst case analytical view, but rather a detached and often overly optimistic view that provides considerable information on processes but generally does not clearly tie the analyses to the conclusions. Many of the impact assessments are conclusory and not well supported by fact/analysis. The EIR’s conclusions appear to have been developed independently of the analyses and often conflict with the text of the analyses, the reference materials, and prior reports.

● Almost all of the impacts are “segmented” by different causes and not aggregated as a whole (i.e. the impacts to traffic, wildlife, community character, school districts, neighboring city service providers, etc.). This results in piecemealed impacts

that do not represent the effect of the overall action.

● Most of the cumulative impacts assessments do not approach cumulative impacts in an additive or synergistic manner, but rather use this analysis to identify project impacts as proportionally minor and therefore not significant cumulatively. This is in direct contravention of the requirements for cumulative impacts analysis in CEQA. In addition, the cumulative impact discussions fail to address the project impacts in combination with past impacts, contrary to CEQA requirements.

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● The SEIR further trivializes project impacts by assuming that compliance with proposed county goals in combination with new guidelines will mitigate project impacts to less than significant levels. This circular reasoning assumes that plan policies will mitigate all plan impacts. Yet this reasoning is unsupported by evidence in the EIR. In fact, the declining and strained resources enumerated in various EIR sections indicate that those procedures/practices are inadequate to mitigate the impacts of increasing

densities and residential land-use under the Plan.

● The SEIR’s failure to adequately assess or correctly identify project impacts as potentially significant, results in a corresponding failure to identify the need for mitigations. Simply stated, because CEQA requires that only significant impacts be mitigated, and the EIR fails to identify numerous potentially significant impacts, it then necessarily fails to mitigate those missing impacts.

A. Incomplete and Insufficient Project Description and Readability.

“An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193, discussion following CEQA Guidelines §15124). A project description must include all relevant aspects of a project, including reasonably foreseeable future activities that are part of the project. (Laurel Heights Improvement Assn. v. Regents of the University of California (Laurel Heights I) (1988) 47 Cal.3d 376, emphasis added. ) The project description must be accurate and consistent throughout an EIR. The primary harm caused by shifts among different project descriptions is that the inconsistency confuses the public and the commenting agencies, thus vitiating the usefulness of the process “as a vehicle for intelligent public participation.” (Inyo v. City of L. A.71 Cal.App.3d at 197- 198). Simply put, an EIR cannot analyze a moving target.

The required information, as well as the project description, etc, must be clearly set forth in the EIR, which it is not the case here. In Environmental Planning and Information Council v. County of El Dorado (1982) 131 Cal. App. 3d. 350, 357, the court found an EIR deficient because information “[had to] be painstakingly ferreted out” of the EIR or the administrative record to determine the impacts. In that case, information concerning impacts was so convoluted and dispersed that the EIR actually “mislead the public as to the reality of the impacts and subvert[ed] full consideration of the actual environmental impacts which would result.” (Id. at 358.)

The references to other reports will not suffice. Courts need not “uncritically rely on every study or analysis put forward by a project proponent in support of its position. A

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clearly inadequate or unsupported study is entitled to no judicial deference.” (Laurel Heights Improvement Assn. v. Regents of the University of California (Laurel Heights I) (1988) 47 Cal.3d 376, 409, fn. 12.)

EIR project descriptions have often been rejected as inadequate because the court perceived that the EIR attempted to narrow the scope of environmental review by narrowing the project description, which is occurs here in the SEIR. (Santiago County Water District v. County of Orange (1981) 118 CA3d 818.) The CEQA Guidelines define “project” to mean “the whole of an action” that may result in either a direct or reasonably foreseeable indirect physical change in the environment. CEQA Guidelines 15378(a). “Project” is given a broad interpretation in order to maximize protection of the environment,” (McQueen v. Board of Directors of the Mid-Peninsula Regional Open Space District (1988) 202 Cal.App.3d 1136, 1143.) “Segmentation” occurs when the project description does not encompass the entire project.

Here, the project description and impact analysis unmistakably attempts to impermissibly “piecemeal” or “segment” the projects in numerous ways, which in turn avoids evaluation of significant environmental impacts. The holding of San Joaquin Raptor Society v. County of Stanislaus, is illustrative. In that case, the County certified an EIR for a large subdivision. The administrative record established, and the developer conceded, that a waste water treatment facility was to be built on an adjoining parcel to serve the new subdivision. However, the EIR contained no information about the waste water treatment facility. The court determined that, in fact, the waste water treatment facility was part and parcel of the subdivision project. The court took note of the fact that the project could not go forward without the facility. The EIR, had artificially “segmented” the project into two projects, a subdivision and a waste water treatment facility. Because the facility was a reasonably foreseeable additional component of the subdivision project, it, and its impacts, had to be analyzed in the subdivision EIR. The danger of segmentation is that it chops projects into smaller bits, which standing alone, may not present the full range and intensity of adverse impacts resulting from the entire project.

In Laurel Heights I, the court set forth the standards for determining whether reasonably foreseeable future activities must be included in an EIR project description and for determining whether the impacts of those activities must be analyzed in the EIR: “We hold that an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable significant in that it will likely change the scope or nature of the initial project or its environmental effects.” Ibid. at 396. In Laurel Heights, the University of California planned to transfer medical laboratories to an office building in a residential neighborhood. Initially, the laboratories

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were to occupy 100,000 square feet of a 354,000 square-foot building. The University claimed it had not formally decided to occupy the entire building, but the court noted that statements in the final EIR and public releases in University newsletters indicated the University’s intent to occupy the entire building when another agency’s lease expired in several years. Accordingly, there was “credible and substantial evidence” that the University’s occupancy of the entire building was reasonably foreseeable, and so had to be considered in the challenged EIR. (Ibid. at 398.)

The CEQA Guidelines define “project” to mean “the whole of an action” that may result in either a direct or reasonably foreseeable indirect physical change in the environment. CEQA Guidelines 15378(a). The effect of piecemeal environmental review was stated clearly in Santiago County Water Dist. v. County of Orange at 828-830. There, the court observed that omission of a key part of the project resulted in important ramifications of the project remaining hidden from view as the project was being discussed and approved, frustrating one of the core goals of CEQA. (Id. at 830.)

It is anticipated the County will contend that the SEIR is a “program” EIR and these requirements do not apply. But not only is a program EIR impermissible for a general plan amendment, discussed below, the rules against segmentation also apply in “program” style EIRs.

A program-level EIR “is an EIR which may be prepared on a series of actions that can be characterized as one large project and are related” by geography, by being “logical parts” in a chain of contemplated action, by “issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program,” or by being “under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways.” (CEQA Guidelines, § 15168 (a).)

For example, in Natural Resources Defense Counsel, Inc. v. City of Los Angeles (2002) 103 Cal.App.4th 268, the court examined whether a proposed shipping terminal project fell within the scope of a 1997 program EIR for a port transportation improvement program and a 2000 Supplemental EIR. The Court, quoting CEQA Guidelines section 15168, subdivision (a), emphasized that a “program EIR” is prepared to examine a “series of actions” that could be characterized as one large project. (Id. at 281.) Noting that the China Shipping Project did not even arise until after the 1997 program EIR had been completed, the court found no evidence that any site-specific environmental issues related to the project were addressed in either the 1997 program EIR or the 2007 Supplement EIR. Likewise, the various “projects” before this board did not arise until long after the 2003 Housing Element or the 2007 EIR for the current CWP,

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and hence cannot be deemed to be part of those projects. In fact, the new projects could not be part of those projects because they are inconsistent; hence, the proposed substantive amendments to the CQP, zoning maps and Development Code increasing residential density and making expansive land-use changes, discussed further below.

CEQA precludes the County from essentially “(1) deem the environmental effects of adopting the plan, whatever those effects may be, to be significant, then (2) approve the plan, and then (3) at some later time determine what the significant environmental effects are of the specific plan that has already been approved.” (See, e.g., Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 201.)

B. The Required CEQA Review Process.

Whenever the approval of a project with potential environmental impact is at issue, the CEQA and regulations have established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations: (1) the first tier is jurisdictional, requiring that an agency conduct a preliminary review in order to determine whether CEQA applies to a proposed activity; (2) if the project is not exempt, the agency must proceed to the second tier and conduct an initial study; and (3) if the project does not qualify for a negative declaration, the third step in the process is to prepare a full environmental impact report (EIR). (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, as modified.)

On the first step, a determination that a project will not entail a significant environmental impact can be made only if there is no substantial evidence in light of the whole record before the agency that such an impact may occur. (Public Resources Code Section 21080(c)(1).) Whenever a “fair argument” exists that a project may entail significant environmental effects, an EIR must be prepared, even if there is other substantial evidence in the record that there will not be such an impact. (No Oil, Inc. v. City of Los Angeles, (1974) 13 C3d 68, Friends of B Street v. City of Hayward, (1980) 106 CA 988, 1000.) The “fair argument” standard recognizes that an EIR should be required to resolve uncertainty created by conflicting assertions. (Id at 35.) The fair argument standard was developed to set a low threshold to trigger a requirement for an EIR. (Citizens Action to Serve All Students v. Thornley (1990) 222 CA3d 748, 754.)

“Application of the [fair argument] standard is a question of law and deference to the agency’s determination is not appropriate. Rather, [courts] independently review the record and determine whether there is substantial evidence in support of a fair argument [that a project] may have a significant environmental impact…” (Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 CA4th 144.)

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CEQA Guideline Section 15065 states that a lead agency shall find that a project may have a significant effect on the environment, requiring the preparation of an EIR where the project has the potential to substantially degrade the quality of the environment, or reduce the habitat available for wildlife. “With certain limited exceptions, a public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project will have a significant effect on the environment. Significant effect on the environment means a substantial, or potentially substantial adverse change in the environment. (Laurel Heights Improvement Association v. Regents of the University of California (1993) 6 Cal. 4th 1112, 1123-1126.)

The fair argument standard, derived from Public Resources Code Section 21151 mandates preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that a project will have a significant effect on the environment. (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 1316.) “Section 21151 creates a low threshold requirement for initial preparation of an EIR and reflects a preference for resolving doubts in favor of environmental review when the question is whether any such review is warranted.” (Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872,881; see also, Center for Sierra Nevada Conservation v. County of El Dorado (2012) 136 Cal.Rptr.3d 351, 202 Cal.App.4th 1156..)

Here, the County has already correctly determined CEQA does apply to all of the projects above, which is apparent in the language of the SEIR itself as well as in prior board meeting minutes and various county reports. What’s more, the County also recognized that CEQA requires review of all sites in the HE as well as the cumulative impacts. In the County’s Final Report of the Housing Element Task Force, the County provided that “[w]ith the completion of the Task Force process, staff will initiate environmental review of the selected sites as required by CEQA. The review will consider the individual and cumulative impacts of increasing densities to a minimum of 30 units per acre on all evaluated sites.” (Housing Element Task Force Final Report, Page 7, emphasis added.)

Indeed, the following are all “projects” subject to CEQA:

– The adoption or amendments of general plans or elements thereof. CEQA Guidelines 15378(a)(1); DeVita v. County of Napa (1995) 9 Cal.4th 763, 793-79; City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 529–533; Black Property Owners Assn. v. City of Berkeley, supra, 22 Cal.App.4th at p. 985; see also Pub. Resources Code, § 21065.)

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  • –  The enactment and amendment of zoning ordinances. Pub Resources Code 21080(a); CEQA Guidelines 15378(a)(1)
  • –  The issuance of zoning variances and conditional use permits. Pub Res Code 210808(a)
  • –  Actions that “presage or accommodate anticipated changes in the extent or nature of land use.” (See e.g., Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 278-281.)
  • –  The adoption of a redevelopment plan. Pub Res. Code 21090; CG 15180.General plans “embody fundamental land use decisions that guide the future growth and development of cities and counties,” and amendments of these plans “have a potential for resulting in ultimate physical changes in the environment.” General plan adoption and amendment are therefore properly defined in the CEQA guidelines [citation] as projects subject to environmental review.” (DeVita v. County of Napa, supra, 9 Cal.4th at pp. 793–795; Black Property Owners Assn. v. City of Berkeley, supra; City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 532.) Section 15378, subdivision (a)(1) of the CEQA Guidelines explains in pertinent part that “project” includes “any activity undertaken by a public agency that reasonably might affect the environment, including but not limited to … enactment and amendment of zoning ordinances, and the adoption and amendment of local General Plans or elements thereof.” Indeed, the fact that the amendment of a general plan is subject to environmental review under CEQA is well established.CEQA mandates also apply to changes to zoning ordinances, cited above, as well as the other discretionary actions before the board in the other amendments. A discretionary agency action qualifies as a “project” whenever it is “necessary to the carrying out of some private project involving a physical change in the environment.” (Simi Valley Recreation & Park District v. Local Agency Formation Commission (1975) 51 Cal.App.3d 648, 664.) For example, general plan amendments frequently culminate in significant environmental effects, particularly where they will allow specific areas to be developed for previously disallowed land uses, or set new policies with reasonably foreseeable real-world consequences. Even actions that might be disparaged as mere “governmental paper-shuffling” (e.g., the amendment of a general plan) can constitute “projects, so long as they “culminate” in physical impacts to the environment. (Bozung v. Local Agency Formation Commission) (1975) 13 Cal.3d 263, 277-281; see also Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 271-273

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[“in order to interpret CEQA “in such manner to afford the fullest possible protection to the environment with in the reasonable scope of the statutory language,” it may be necessary to apply CEQA “even where the process is largely ministerial.”].)

Furthermore, projects with both ministerial and discretionary attributes are treated as discretionary. CEQA Guidelines section 15268(d); Miller v. City of Hermosa Beach (1993) 13 Cal.App. 4th 1118, 1139; Friends of Westwood, supra, at 270-271. “Doubt whether a project is ministerial or discretionary should be resolved in favor of the latter characterization.” (Friends of Westwood, supra, at 271 [quoting People v. Department of Housing and Community Development (1975) 45 185, 194.])

If there is substantial evidence that a project may have significant environmental impact, then contrary evidence is not adequate to support a decision to dispense with an environmental impact report (EIR). (Citizens For A Megaplex-Free Alameda v. City of Alameda (App. 1 Dist. 2007) 56 Cal.Rptr.3d 728, 149 Cal.App.4th 91, modified on denial of rehearing, review denied.)

As such, the Board must independently evaluate whether the environmental review that barely passed though the Planning Commission is legally sufficient for each and all of the following: (1) The amendments to the Development Code and zoning maps; (2) the amendment to the 2007 CWP through adoption of the 2012 Draft Housing Element; and (3) the other amendments to the Countywide Plan.

But, as mentioned above, where the County has grievously erred is in preparing a mere “supplement” to the 2003 Housing Element and/or the 2007 EIR prepared for the 2007 Countywide Plan Amendment project “pursuant to Public Resources Code Section 21166.” The provisions of Section 21166 governing “subsequent” or “supplemental” apply “only when the question is whether more than one EIR must be prepared for what is essentially the same project.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1320 [italics added].) “Section 21166 “comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired (§ 21167, subd. (c)), and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1074.) In addition, the standards of Section 21166 do not apply where a particular site-specific development project “activity” – such as all sites in both planning periods for the Housing Element – has not been the subject of an earlier EIR or negative declaration, or where the only previous EIR or negative declaration relevant to the project was an environmental document prepared for a general plan, community plan, or similar large-scale planning action. (See Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 529.)

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There is also not legal authority under the governing case law that permits a mere supplemental EIR for amendments to countywide plans, zoning and development code amendments, or amendments to plans to add a new detailed Housing Element. In contrast, a “supplemental” EIR would be appropriate, and required, if a project were sought to be developed pursuant to the current 2007 Countywide Plan EIR, or current development codes and zoning, but since the 2007 EIR for that Plan was completed, there were significant changes to the project, etc., under the three-prong test.

But as mentioned above, the proposed amendments and new Housing Element sites for both planning periods are inconsistent with the current Countywide Plan, Development Codes and county zoning maps. If they were consistent, the full gamut of these actions would not be proposed to revamp the plan and codes to substantially modify land use countywide and increase land-use density over the majority of the unincorporated regions in the county.

The inconsistency of these projects is further demonstrated in comparison of the SEIR and the prior projects: According to the County, “[t]he proposed project is the 2012 Draft Housing Element of the Marin Countywide Plan (Countywide Plan). This SEIR evaluates proposed changes in the [2003] Housing Element since certification of the 2007 Countywide Plan EIR and approval of the 2007 Countywide Plan (including the current [2003] Housing Element, which was incorporated into the Countywide Plan and adopted by the Board of Supervisors in November 2007) (see page 2 of the Draft SEIR). (County Response to Comment 46-1.)

The County then deduces that “[t]he 2007 Countywide Plan EIR evaluated a range of total housing units that could be built in the unincorporated area of Marin County [though the year 2030] under the various Countywide Plan policies that encourage housing (see page 9 of the Draft SEIR).” (County Response to Comment 46- 1.) The County concludes the 2012 Draft Housing Element is “essentially the same project” because the total housing numbers in the 2012 Draft Housing Element are within the range of the projected 2030 build-out in the 2007 CWP.

It is not clear whether the county is asserting that the project to be updated is the 2003 Housing Element or the EIR for the 2007 CWP. But neither project is consistent with the 2012 Draft Housing Element to be deemed “essentially the same project.”

First of all, in the 2003 Housing Element, the List of Sites Potentially Suitable for Housing, there is only one (1) “Potential Unit” located in Strawberry. Similarly, in the 2007 EIR, the evaluation of the Countywide Plan Land Use Designations, Existing and Proposed for the entire Richardson Bay Planning Area (which includes Strawberry) projected that the net change in residential areas would actually be reduced by 219 acres

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and in the category of Med-High density, only contemplated 1 additional acre of residential housing in this category.

Second, the unincorporated county is comprised of different and independent regions that differ geographically, environmentally, rely on different public services, etc. For purposes of environmental review, it is legally insufficient to lump all of the

unincorporated areas into one category and make broad-scale conclusions in any environmental review. Furthermore, any growth projections in the 2007 EIR were based on land use and land development under the 2007 CWP and current codes, not at the proposed new zoning densities and broad expansion of residential sites which are currently mixed-use, commercial and/or agricultural. (See proposed Development Code amendments.)

This is a good demonstration of why it is legally insufficient to merely compare “plans” in an effort to update or supplement them. What is critical for a valid EIR is to evaluate the actual current conditions, which did not occur here as required. The impacts of the project must be evaluated based on the situation on the ground, not on the General Plan. (City of Carmel-By-The-Sea v. Board of Supervisors of Monterey County (1986) 183 CA3d 229.)

C. Program EIRs Are Impermissible for Amendments to General Plans.

In an effort to avoid the required analysis, the County has stated that the SEIR is a “program” style EIR “prepared pursuant to State CEQA Guidelines Section 15168(a)(3) (as discussed on page 4 of the Draft SEIR a program EIR is appropriate for rules, regulations, plans, and other general criteria to govern the conduct of continuing programs). (County Response to Comment 46-1.) But a program EIR cannot be used for the amendment of a general plan or similar plan-level decision. Indeed, CEQA Guideline section 15378 defines a general plan amendment as a project, for which an EIR is required rather than optional where the approval may cause significant environmental effects. (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 741 [citing Pub. Resources Code § 21151].)

D. “Tiering” is Not Permissible For These Projects.

“Tiering” of EIRs occurs where analysis of matters contained in a broader EIR is used with later EIRs on narrower, smaller projects. (CEQA Guidelines, § 15152, subd. (a).) But here the proposed projects are inconsistent with the current 2007 plan and current zoning – hence the changes – and thus cannot benefit from either tiering or the

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provisions of sections 21083.3 and 15183. CEQA analysis for these projects cannot take advantage of tiering because they are not consistent with currently adopted programs, plans, policies or ordinances and/or are not consistent with governing local general plans and zoning and instead must fully account for all environmental impacts attributable, in whole or in part, to all projects. (See CEQA Guidelines 15150(a).)

Also, tiering “does not excuse the lead agency from adequately analyzing reasonably foreseeable significant environmental effects of the project and does not justify deferring such analysis to a later tier EIR ….” (CEQA Guidelines, § 15152, subd. (b).)


An EIR shall identify and focus on the significant environmental effects of the proposed project. “Environment means the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.” (Public Resources Code section 21060.5) In assessing the impact of a proposed project on the environment, the lead agency should normally limit its examination to changes in the existing physical conditions in the affected area as they exist at the time the notice of preparation is published, or where no notice of preparation is published, at the time environmental analysis is commenced. Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects.

Moreover, CEQA broadly defines the relevant geographical environment as “the area which will be affected by a proposed project.” (Pub. Resources Code, § 21060.5.) Consequently, “the project area does not define the relevant environment for purposes of CEQA when a project’s environmental effects will be felt outside the project area.” (County Sanitation Dist. No. 2 of Los Angeles County v. County of Kern (2005) 127 Cal.App.4th 1544, 1582–1583.) Indeed, “the purpose of CEQA would be undermined if the appropriate governmental agencies went forward without an awareness of the effects a project will have on areas outside of the boundaries of the project area.” (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 369 ( Napa Citizens ).) Thus, the County’s obligation under CEQA is to also to consider geographically distant environmental impacts of their activities and projects.

The discussion should include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use of the land (including

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commercial and residential development), health and safety problems caused by the physical changes, and other aspects of the resource base such as water, historical resources, scenic quality, and public services. The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected.

A draft EIR must identify and focus on the possible significant environmental impacts of a proposed project. (PRC §21100(a)(1), CEQA Guidelines §15126(a).) The analysis should clearly identify both direct and indirect impacts, both for the short-term and the long-term. An EIR should also discuss the environmental specifics of the affected area; anticipated physical changes; anticipated alterations to ecological systems; and other aspects of the resource base such as scenic quality. (CEQA Guidelines 15126(a)).

A. Lead Agency Must Disclose All Facts in EIR and Properly Evaluate the Impacts to the Environment.

“While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can.” (CEQA Guidelines §15144). Here, it is understood that there are projects that have been discussed with the County agents impacting the GGBTS property and a forthcoming project in development that the county has refused to disclose to property-owners within 300 feet of the GGBTS property, among other things.

Certification of an EIR may be set aside where the agency fails to comply with the information disclosure requirements of CEQA, even though the agency’s decision would not have been affected by the noncompliance. (Ultramar, Inc. v. South Coast Air Quality Management District (1993) 17 CA4th 689,703.) “A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decision making and informed public participation, thereby thwarting the statutory goals of the EIR process.” (Kings County Farm Bureau et al v. City of Hanford (1990) 221 Cal.App.3d 692, 712.)

Here, many critical environmental facts, and the subsequent required evaluation, are lacking. Strawberry is primarily a peninsula that resides in the geographic center of Richardson Bay. A large percentage of Strawberry is shoreline that houses sensitive environmental features, including delicate coastal, bay, lagoon, tidal and marsh and

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wetland areas to the East, South and West. Strawberry is the epicenter of an expansive bay-coastal ecosystem, with numerous intersecting environmental areas.

A recognized flyway and area for wildlife and plants, the Strawberry Peninsula is recognized by FEMA as a ‘Bay Coastal’ community, and is also designated by the California Department of Fish and Game as a Game Refuge. Richardson Bay provides an important shelter for sea birds and migratory waterfowl during the winter months. It also provides habitat and refuge for harbor seals, spawning grounds for herring, and important spawning and feeding areas for other fishes, including year-round residents, migrating anadromous fishes, and pelagic ocean visitors. Richardson Bay at Strawberry Point contains San Francisco Bay’s second largest remaining eelgrass bed (officially designated Essential Fish Habitat). Surrounding upland areas provide habitat for a wide range of aquatic and wildlife species in a diverse array of ecosystems, from open water estuary, to shallow mudflats, to tidal marshes, and rocky intertidal shoreline. (The Reference Materials attached list numerous other indigenous wildlife and habitats.)

Richardson Bay Wildlife Refuge (East, Central and West Zones)

“Because Richardson Bay is a relatively small and enclosed body of water, activities that occur in one local jurisdiction impact all.” (San Francisco Bay Conservation and Development Commission)

The impacts to the environment, including wildlife, must be evaluated. In Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, as modified, modified on denial of rehearing, review denied, the Court determined that an environmental impact report was inadequate in that it did not investigate and make findings as to the impact the specific land use plan would have on steelhead trout. But here those impacts were not disclosed or evaluated.

On the residential front, Strawberry is a mix of single and multi-unit residences, with multi-unit residences outnumbering single-family residences in a 3-2 ration. There

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are currently 86 Section-8 housing units and hundreds of housing units in Strawberry that are deemed affordable-housing and that are otherwise market-rate housing that is affordable to lower income levels. The GBBTS academic institution houses hundreds of faculty and students, along with their families, who live and are educated in Strawberry.

Much of the coastal lowlands in Strawberry, including arterial roadways throughout the area, including the commercial area in Strawberry Village and the 101 frontage roadways, are in or directly surrounded by flood plains. In the higher elevations, areas are set aside for preservation of woodland, wildlife, and open space and other areas are dedicated disaster-relief sites for the Red Cross to facilitate the protection and safety of residents throughout Southern Marin.

B. The EIR Must Discuss any Inconsistencies with All Land-Use Plans.

CEQA Guidelines require the EIR to “discuss any inconsistencies between the proposed project and applicable …regional land use plans…” CEQA Guideline 15125(b). Here, the plan does not discuss or address the myriad inconsistencies with the Strawberry Community Plan, the 2007 CWP, and the master Plan for GGBTS. It is further defective for that reason.

Here, the impact analysis fails to address potential conflicts associated with the expanded residential land-use and densities zoning of numerous parcels. Also, the HE applies an Affordable Housing (AH) Combined District that would permit 30 dwelling units per acre on sites identified in the SEIR (HE Program 1.c). This increase in density was not permitted in the CWP EIR yet the Land Use and Planning section of the SEIR concludes there are no significant land use impacts. The land use analysis included in the SEIR is inadequate and must be revised to evaluate potential land use impacts associated with HE Program 1.c.

Furthermore, it is reasonably foreseeable that zoning for high density, tax-exempt residential units, as proposed in the Countywide Plan and Housing Element and other proposed amendments, is inconsistent with the planned needs of the local community, undermines the established ecological balance precipitously established, undermines the community’s plan to protect open space and protect an environment that is integral to the ‘viability’ of the surrounding environmental eco-system in which the Strawberry peninsula resides and GGBTS also inhabits.

These projects would also result in significant land use conflicts, given the conflicts with the Strawberry Community Plan, excerpted below.

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The Strawberry Community Plan provides:
<insert graphic from SCP here>

Pg 2-3 Amendments to the Strawberry Community Plan 1982

C. The County Must Evaluate Growth-Inducing Impacts.

Public Resources Code Section 21100(b)(5) requires that an EIR include a detailed statement setting forth the growth inducing impacts of a project. See also Guideline 15126(g). It requires a discussion of the ways in which the project would foster population growth, either directly or indirectly. Once identified, Public Resources Code Section 21002 and Guideline 15126(c) require the EIR to include mitigation measures to minimize, reduce and avoid such impacts accomplished…taking into account economic,

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environmental, legal, social, and technological factors. (CEQA Guidelines, Section 15364.)

The lack of a detailed analysis of impacts is even more problematic considering the availability of existing analyses/information on major environmental impacts associated with development of the Housing Element sites. For example, the County has recently reviewed plans for residential projects at the GGBTS (County staff and planning reports, hereby incorporated by reference), as recently as November 2012, and identified potentially significant impacts at that site. But those are omitted from this SEIR. CEQA does not permit an EIR to defer analyses for which information is available at the time of preparation of the document, particularly if that analysis is essential to identifying impacts and mitigation measures. This EIR’s failure to investigate technical issues results in significant impacts going unaddressed and unmitigated. The County is well aware of these issues, and is required to consider and disclose this information in the DSEIR. Contrary to the approach taken in the SEIR, CEQA does not permit impact assessments to willfully ignore relevant information on project sites.

Indeed, it is reasonably foreseeable that all of the proposed “projects” will have significant impacts on the environment in and around Strawberry, as discussed herein. The County has failed to adequately evaluate the significant environmental impacts to this protected coastal peninsula, including but not limited to potentially significant impacts to biological resources associated with the need to accommodate development; and potentially significant impacts to slope stability and water quality, and flooding issues that affected much of the Strawberry sites. It is reasonably foreseeable that this flooding will be substantially exacerbated by sea level rise.

D. Projected Growth and Population in the Richardson Bay Region

The proposed Housing Element and other amendments represent a significant burden on public services in this small community, but there is no analysis in the Public Services section of the SEIR addressing the “loss of service” or current or anticipated capacity of public service providers to meet the significant demands of the 363 housing units designated for the Strawberry community or other growth-inducing impacts of the zoning amendments.  The public services analysis in the DSEIR is inadequate and must be revised to analyze impacts to public services resulting from all of the 49 housing sites and broader expansion of residential land use.

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E. Public Services in and around Strawberry.

The existing infrastructure is inadequate to support the project. As discussed in detail in the following sections, the impact analysis fails to address the environmental impacts associated with development of the housing sites and fails to assess whether projected land uses and development consistent with the scope of the amendments would result in the demand for public services such that new facilities would need to be constructed and identify associated environmental impacts thereof. The SEIR appears to rely on the public services impact analysis included in the CWP EIR and provides no updated analysis to account for higher densities at many of the housing sites identified.

However, the 2007 EIR did not project growth of residential acreage in the Baylands Region so it cannot be used to extrapolate from. Furthermore, the population in this region has increased dramatically since then, which information and data is not included as it must be in an adequate EIR. The public services analysis included in the SEIR is inadequate and must be revised to account for increased densities and intensity of use at the majority of the housing sites, and indeed throughout the area where there are proposed increases to residential land-use.

1. School Population Growth Will Result in the Need for New School Construction and Staffing, Which is Not Addressed or Mitigated.

If the forecasted economic or social effects of a proposed project directly or indirectly will lead to adverse physical changes in the environment, then California Environmental Quality Act (CEQA) requires disclosure and analysis of these resulting physical impacts. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184.) Here, the existing infrastructure and schools in the Mill valley School District have insufficient for the projects, including absorbing the population growth from new high-density residential units resulting from the projects.

According to the 2010 US census, over 1,000 school age children and young adults (US Census Bureau 2010) or 25.8% of the overall population reside in Strawberry. Strawberry has one public school structure, Strawberry Point Elementary School (Grades K-5th) with enrollment in 2013 of an estimated 425 students. Strawberry Point is the only public school located within its geographic boundaries. Strawberry Point is a part of the Mill Valley School District. Strawberry Point is at capacity and some children here have to attend alternative elementary schools, in excess of a 1 mile away from their homes in Strawberry. Strawberry Point is located on a revitalized wetlands, is less than 100 feet from Richardson Bay Wildlife Refuge and is also within the definition of the 100 year Flood Plain as defined by FEMA. This is not an area for further buildout of this school.

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Strawberry school children are commuters for middle and high school. There is no public transportation available to them, no yellow buses pick them up and take them to school. The burden of Strawberry on the Mill Valley School District, a basic-aid district, is increasing and is becoming problematic— and this is without increasing residential housing densities and expanding the area for residential landuse. The increases in per student costs, facilities costs, state budget cuts, test and performance requirements are contributing to ever increasing challenges the Mill Valley School District is attempting to manage. It is reasonably foreseeable that if high density, tax-exempt housing is zoned here, based on studies, it will significantly increase the number of school age children matriculating into the Mill Valley School District. (The capacity of the public schools, increased growth, state law re: classroom sizes, fire regulations re: capacity of buildings, etc., are all public records and may be located on the Mill Valley District website, Kiddo website, etc., all of which are hereby referenced and incorporated herein as if set out in full.)

It is reasonable to foresee upwards of 600 students entering the school district if the zoning results in the development of many additional housing units – which is the scenario CEQA requires to be evaluated.  In essence, Strawberry high-density and expanded residential land use could foreseeably increase the public-school population to require the construction, somewhere, of new school buildings(the median cost for a new elementary school is $35 million and then it must be staffed).

Although the construction of new schools by the Mill Valley School District is reasonably foreseeable, there is no analysis, even at the program level, of the potential environmental effects of the construction of new school sites.  The Mill Valley School District has increased 40% in the last 8 years from a student population of 2200 in 2005 to a population of 3200 in 2012 – and this is with the current residential zoning. The schools are at or extremely close to physical capacity based on state laws and codes, particularly the middle and high school.  If 363 new housing units are constructed in Strawberry, in addition to other building in Mill Valley and TamAlmonte, the impact to schools, particularly the need to build new school facilities, must be evaluated and addressed in an EIR before any zoning or plan changes are contemplated.

The County has not effectively addressed these and related issues in the SEIR or the 2007 EIR. The total value of real estate developer tax incentives and the near and long term cost, loss of tax revenue and related burden on school districts and taxpayers needs to be competently structured and analyzed. The shift in tax burden liabilities to enable subsidies for real estate developers, in a county with a 0.03% projected growth

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rate is an issue for all taxpayers, not just those who have school age children attending public schools.

The environmental impacts are intensified because the 1000+ Strawberry school- age residents attend Mill Valley School District schools or private academic institutions that are, in either part of the Mill Valley School District (Mill Valley Middle School and Tam High School), which are located miles away from Strawberry, across Highway 101 and in the City of Mill Valley and elsewhere. The Safe Routes to School Survey, sponsored by the Mill Valley School District identifies and amplifies the fact that, due to the lack of efficient and reliable transportation, due to the extreme traffic congestion and exacerbated by the fact that over 1,200 Strawberry school age children must in essence ‘commute to school’ by way of unsafe, congested roadways or must use rely on care givers to use a family vehicle to commute to get back and forth to school is an adverse economic impact on the community and surrounding areas and also potentially dangerous situation for both elementary school age children and, young adults attending middle and high school, attempting to either walk or bike to school.

2. Police and Fire Services.

Strawberry is protected by the Marin County Sheriff’s Office, with a mutual assistance agreement with neighboring municipalities, such as The City of Tiburon and the Tiburon Police Department. In addition, the California Highway Patrol has provided additional support during numerous events or request for assistance. The California Highway Patrol provides traffic and speed enforcement, and is often deployed in and around the community in an ongoing effort to mitigate speeding and DUI. The community has a robust commercial shopping center and within the past 36 months has experienced a disturbing increase in both federal and violent crimes.

Currently, the Marin County Sherriff serving parts of Sausalito, Muir Beach, Strawberry and parts of Tiburon and Marin City, is located across Northwest Richardson Bay and down Hwy 101. The substation provides police services for an estimated 30,000 residents and hundreds of businesses. There is no permanent or dedicated Marin County Sherriff substation or facility located on either the Strawberry or Tiburon peninsulas. The lack of permanent or dedicated law enforcement is a concern to all current residents and businesses. The County’s proposed zoning and development plans for Strawberry conflict with the lack of basic and fundamental services, such as dedicated law enforcement resources and infrastructure. These County projects have the potential to stress the current lack of law enforcement presence within the community to appoint that is reasonably foreseeable that crime and related issues would increase, which could be

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dangerous and harmful to the general welfare and well-being of the Strawberry community.

F. Aesthetic Impacts

The impact analysis fails to adequately address the visual impacts associated with implementation of HE Program 1.p Adjust Height Limits for Multi-family Residential Buildings which would allow multi-family housing to exceed the multi-family height limits identified in the development Code.  The DSEIR determined the Project would not result in new or substantially more severe significant impacts.  This is false because the DSEIR did not identify and analyze new aesthetic impacts associated with implementation of HE Program 1.p.  CWP policies and mitigation measures in the CWP EIR die not account for multi-family housing being allowed to exceed established eight limits.  Also, HE Programs 1.a, 1.c and 1.m would encourage increased densities and the building massing at most of the 49 sites above what is allowed in the CWP and these potential impacts were not analyzed in the DSEIR.

Numerous other aesthetic issues have been raised by and before the County with respect to GGBTS’s recent application for expanded development, which are referenced and incorporated herein by this reference.

 G. Flooding, 100 Year Floodplain, Impending Sea Level Rise.

“Richardson Bay is a canary in the coal mine of Bay Area sea level rise. As global warming threatens to transform today’s high tides into tomorrow’s low ebb, those inconvenient floods could turn into tragedies.” (SF Gate/Tuesday March 2nd,2013/Preparing the bay for rising levels.)

According to NOAA, FEMA and the San Francisco Bay Conservation and Development Commission, many evaluated sites located on the Strawberry Peninsula are within the 100 Year Floodplain. An estimated 30% of the Strawberry Peninsula is currently prone to tidal flooding as noted by FEMA and NOAA. For example, tidal flooding is a frequent occurrence and well documented at the Seminary and Hwy 101 exit, one of two entrances/exits to highway 101 for Strawberry and the primary traffic corridor for the proposed GGBTS site. In addition, the entire 101 frontage roads on both sides of 101 are subject to tidal flooding and reside in the 100 Year Floodplain. FEMA Data and the inability of 50% of the residents to leave the Peninsula because of flooding at 2 out of 3 major intersections and highway 101 is a significant impact that can only be avoided if none of the projects are approved.

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Indeed, tidal flooding is already problematic to the nearby marshes, lagoons, coves and tidal areas. The number of low lying areas and current and anticipated flooding is substantial. Most critically, as noted in the diagram in the attached Reference Materials, Hwy 101 (residing in Strawberry boundaries) and 66% of the major roadway intersections that enable ingress and egress from the Strawberry Peninsula for the housing sites would be flooded and irreparable, limiting the ability for residents, public transportation, first responders and other services to travel in and out of the area. In essence, these sites could become inaccessible islands. In addition, soil compaction, already an issue at locations associated with these sites, will be amplified by the high- density housing issue, by increasing related run-off, requiring additional costly, structural changes. If not mitigated, the runoff will exacerbate the current and future flooding in surrounding areas, adversely impacting the environment and neighboring residential properties and structures.

As referenced in the attached California Climate Change Center report prepared for the Department of Fish and Wildlife Service report, high-density, lower-income residents will suffer the most financially and potentially risk the greatest harm if situated in such an areas. Placing housing within a 100-year floodplain and in areas subject to sea level rise is dangerous, results in significant impacts to the environmental and should be avoided.

H. Water Supply – Significant Issues.

Consistent and reliable water supplies for Strawberry, Marin and the Region are a continuing, unresolved issue in which no long-term, enduring solutions have been proposed, developed, or implemented except for water conservation. Water conservation is ongoing, however, we must still live within the limits of our finite watershed. Strawberry utilized two watersheds, thus increasing the water dependencies across two suppliers. In no circumstances can an unlimited water supply be assumed, since the current supply is dependent on enforcement of the Countywide Plan’s stipulation of “no net water increase” and thus, creates a requirement and mandate that cannot be achieved calling into question the rationale and capabilities required to enable any high-density or expanded residential development in Strawberry.

As noted (and incorporated herein by this reference) by Sustainable Tam Almonte correspondence to the Marin County BOS on this issue: “It is shortsighted and perilous to increase the number of potential units allowed by the Countywide Plan, via the Housing Element, and only ensure sufficient water for the Site Inventory but not ensure sufficient water for Development Potential and for the Countywide Buildout. This sets the stage for a future catastrophe. Mitigations that would require actions not within the

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authority of the County, but lie instead within the authority of other agencies, such as MMWD, cannot be considered feasible, according to the 2007 CWP’s EIR. No development projects can assume available water from Desalination (using the most toxic Bay in California) because the construction of a desalination facility would be subject to a public vote. Given the strong opposition by some sectors of the public to the environmental impacts and high cost of desalination, it cannot be assumed that this is a realistic option. Increased supply from Sonoma County Water Agency, a supplier for MMWD, is equally unviable. In regards to evaluating the impact of accelerated development on MMWD’s water supply, potential future residential development on the proposed Tam Junction Opportunity Sites should not be evaluated separately but rather as part of the potential future development in MMWD’s entire jurisdiction. This cumulative development impact should not exceed the limits of our finite water supply.”

Likewise, Strawberry real estate development of any kind, but in particular high- density development, has a direct and adverse impact on the water quality (pathogens) in Richardson Bay and the associated environmental eco-system. Any risk and potential violation of the Clean Water Act, due to real estate development in proximity to bay coastal waters and the related environment should be considered unwise and ill-advised, potentially adversely affecting neighboring communities, businesses, natural environments, environmental eco-systems and wildlife.

I. Other Health Risks.

It is reasonably foreseeable that there will be an increase in the risk of residents developing serious illness due to living near major roadways: Sites 21, 22, 23, 24, 25, and 50 all sit along Hwy 101 with an unacceptable LOS of “F”. It is well documented, in a multitude of major studies that residents living in proximity to major roads and freeways are at much greater risk of developing serious illness (lung impairment, cardiac disease, cancer, and premature miscarriage) due to the cumulative effects of air and noise pollution. In addition, performing health risk assessments as proposed by the CWP’s EIR and the DSEIR, are not a replacement, nor constitute effective mitigation.

In addition, several health studies recommended to the Board of Supervisors that housing should be located at least 500 feet from major roads and freeways. Thus, any Strawberry, AH Opportunity Sites that are located within 500 feet of Hwy 101, Hwy 131 and/or Shoreline Hwy 101 Frontage Road, should be removed from the AH Land Inventory.

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J. Hazardous Materials.

Due to the combination of questionable hazardous material sites (Chevron Gas Station and Car Wash and the Valero Gas Station and Smog Check Station) and circumstances, both are in close proximity (-) 25 feet of a protected wetlands (Belloc Marsh and Lagoon) and the fact that both facilities are located within the 100 year flood plain and currently experience tidal flooding, it is unclear why any housing sites would be located in proximity to the 2 sites identified, due to health and safety risk. Any proposed mitigation of these issues, should take into account both the hazardous material sites in proximity to protected wetlands and issues of tidal, coastal flooding and the related issues, associated with the housing opportunity sites.

K. Individual and Cumulative Traffic Impacts Are Significant and Must be avoided.

The substantial impacts of many of the individual and cumulative projects are not considered, even though specific affected roadways are known. However, it is reasonably foreseeable that there would be dangerous traffic with unacceptable level of service “LOS” of local roadways. Overall, the roads throughout Strawberry are poorly maintained, in disrepair, congested, dangerous, and prone to tidal flooding and reside in sensitive ecological environments. The Marin County CMP Transportation System Performance Monitoring and related Studies are insufficient and do not competently represents the current status and LOS of Strawberry’s local and co-dependent roadways. Strawberry is geographically a critical ‘hub’ for the surrounding communities of Tiburon, Mill Valley and Altamonte. Environmentally, Strawberry is the ‘geographic center and critical linkage’ of Richardson Bay Wildlife refuge spanning areas in Tiburon, Mill Valley and Altamonte. Specific to transportation, Strawberry residents, businesses and students, utilize products and services in all of the surrounding municipalities, while simultaneously the adjacent communities are co-dependent on Strawberry roads and transportation corridors to get to their primary destinations. Thus the inter-dependency is substantial between the communities and highly inter-dependent.

Critical roadways such as the Seminary Exit and Hwy 101 frontage road, safety barriers, fencing, road surface and drainage are in disrepair. The Hwy 101 frontage road is the primary access roadway to proposed GGBTS HE Site. In combination with potentially dynamic weather, climate, natural or manmade disasters, the current infrastructure is not sustainable without major repairs and substantive modifications. For the County to plan and zone this region for high density, concentrated, development, in light of the current state of roadway infrastructure is impermissible and would create a

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host of additional problems without even attempting to solve the growing list of current problems that already face the residents and business owners of Strawberry.

Thus, it is reasonably foreseeable that any increased densities and expansion of residential land-use in Strawberry will have a negative impact not only on the Strawberry community, but also those interdependent communities that provide services and leverage Strawberry infrastructure to maintain their daily lives. Without an in-depth and comprehensive review of Strawberry specific traffic and related infrastructure, and the inter-dependencies of Strawberry infrastructure in relation to neighboring communities, it would be a violation of CEQA for this Board to approve any real estate development and expansion plans for the Strawberry Peninsula.

There is also a significant issue regarding tidal flooding and the impact on roadways that was not properly evaluated. It is well documented in County records and well known to the Marin County Department of Transportation that roadways and intersections around Strawberry frequently flood during high tide and heavy rains. It is also well known that since Strawberry is a coastal community; it is subject to adverse environmental circumstance such as sea level rise, high tides, and heavy rains and is further adversely affected by poorly maintained infrastructure that is at capacity. An example of these combined issues is the Seminary Exit at Highway 101 intersection, closely located to Belloc Lagoon and Strawberry Tidal area. The Seminary Exit at Highway 101 intersection is also 1 of only 2 intersections that enable Strawberry residents access to Highway 101 major thoroughfare and evacuation route in case of an emergency such as those identified by FEMA as a risk to the Strawberry Community. The Seminary Exit and Highway 101 intersection is also the closest roadway access to Highway 101 from the proposed sites.

At least 4 specific roadway flooding scenarios are identified by FEMA models as areas where additional flooding and road closures are anticipated and reasonably foreseeable:

  1. 101 Frontage Road and Ricardo Road
  2. Ricardo and Seminary Drive
  3. Seminary Exit and Highway 101
  4. East Strawberry Drive and Tiburon Blvd. (131)In the event of the closure of Seminary Drive, Ricardo and Seminary Drive

intersection, the Seminary Exit and Highway 101, the 101 Frontage Road and Seminary, and East Strawberry Drive and Tiburon Boulevard (131) the proposed high density


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development at the Strawberry HE sites could be almost completely stranded, among other risks.

Also, additional students in the Mill Valley School District in Strawberry will require transporting children located on the east side of Highway 101 across the freeway to middle and high school. This further represents a potentially significant traffic impact that is not addressed in the SEIR. Increased traffic, higher speeds, greater congestion, limited current infrastructure and an overall ‘loss of service’ that impact our children are compelling reasons to avoid increased density and expanded residential landuse.

1. Dangerous Roadways-Speed:

The County of Marin has failed the community of Strawberry in efforts to mitigate speed and alter the level of speed of both non-commercial and commercial traffic for over 30 years. Traffic speed was an issue identified in the 1982 Strawberry Community Plan Adopted in 1984 and yet, traffic mitigation and traffic calming efforts have not been institutionalized and enabled thru substantive change in traffic design and infrastructure. In fact, just the opposite has occurred most recently, with a Marin County Board of Supervisor (BOS) vote to increase the speed limit on the scenic, 2 lanes, Seminary Drive from 25mph to 35 mph. The current high density development proposed by the county will increase the amount of traffic on major thoroughfares, intersections and side streets, while the county proposes and improves increased speed limits in a community that was originally designed to be coastal, rural and residential. The county is thus, literally creating a dangerous and life threatening environment for legacy residents, proposed residents, businesses, tourist and most critically, the 1k children who reside in Strawberry .

2. Dangerous Roadways-Bicycle Traffic

In numerous county and regional plans, the Strawberry Peninsula is identified as a critical element of the regional Bay Trail as indicated in the graphic below and the county and regional nature trail network. Specific to the highlighted roadways below, designated in two different graphics attached in the Reference Materials, Seminary Drive is the primary roadway associated with the proposed GGBTS site and will literally inundate resident and institutional vehicle traffic onto a roadway that is designated a pedestrian and bicycle trail. In addition, as mentioned previously, no EIR studies or recommended mitigations were developed for Seminary Drive and all of the interdependent roadways and intersections.

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The combination of increased vehicular traffic generated by real-estate development and increased bicycle traffic either from utility or economic demand is both an economic and safety issue. Based upon the review of the current draft and final EIR, a limited amount of analysis has been structured or completed specific to the high volume of cycling traffic currently occurring in Strawberry and the impact of the combination of high-density, increased residential land use will have.

L. Earthquakes and Related Hazards.

1. Bay Coastal, Marshes and High Seismic Activity, Liquefaction, Subsidence and Mud Displacement

The Marin Countywide Plan’s EIR states, and the Housing Element DSEIR confirms, that implementation of the CWP and the Housing Element would have significant unavoidable project and cumulative impacts [Impact 4.7-2 (Seismic Ground Shaking) & Impact 4.7-3 (Seismic Related Ground Failure)] to persons living in new or redeveloped buildings due to risk of injury or death from severe seismic activity such as a major earthquake. The Strawberry Peninsula is exposed to wetlands, marshes and tidal basins. The Site#3 location requires residents to travel past and reside amongst a tidal flood area, a marsh, a protected lagoon and bay tidal area. No current EIR or mitigation plan has been drafted specific to the areas and issues identified in this document. It is requested that the county of Marin address these issues by provided an EIR assessment and related mitigation plan for the Site #3 and the entire Strawberry Peninsula.

2. Tsunami Inundation.

The Strawberry Peninsula resides at the epi-center of Richardson Bay, an extension to San Francisco Bay and thus the Pacific Ocean. The risk of Tsunami and devastating loss of life and property is evident in the attached Reference Material researched and authored by the United States Geological Survey Department and supporting organization. The ‘Marin County Tsunami Inundation Maps are made available by the State of California, Department of Conservation.

The California Geological Survey (CGS) provides geologic and seismic expertise
to the public, other State government offices, such as the California Emergency
Management Agency (CEMA; formally known as the Governor’s Office of EmergencyServices), and local government agencies (cities and counties). CGS is working closely with CEMA and the Tsunami Research Center at the University of Southern California to produce statewide tsunami inundation maps for California (to be released in2009). These maps are to be used by coastal communities to produce emergency

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evacuation plans.  CGS is also the Scientific Representative for California on
the National Tsunami Hazard Mitigation Program Coordinating Committee, a state and federal cooperative that produces policy and standards for tsunami mitigation efforts in the United States and its territories.

As noted in the attached maps, an estimated 30% of Strawberry could be adversely impacted by a Tsunami, directly impacting all the proposed HE sites as well as the broader community. Most critically, Strawberry could lose all forms of transportation (public, private, first responder, services) access to its two primary roadways, (Highway 101 and Route 131), in addition to local roadways (Ricardo Road, Seminary Drive and East Strawberry Drive) that enable transportation around the peninsula. The severity of an event of this nature could limit first responders and related rescue and recovery operations, due to the loss of Highway 101 that acts as the major corridor for the county.

The Marin Countywide Plan’s EIR states, and the Housing Element DSEIR confirms, that implementation of the CWP and the Housing Element would have significant unavoidable project and cumulative impacts [Impact 4.7-2 (Seismic Ground Shaking) &Impact 4.7-3 (Seismic Related Ground Failure)] to persons living in new or redeveloped buildings due to risk of injury or death from severe seismic activity such as a major earthquake. The CWP’s EIR and the Housing Element DSEIR then describe the areas in which the danger is greatest, which include Strawberry sites.

For example, the proposed GGBTS HE Opportunity Sites reside within 100 meters of bayshore and a high seismic activity zone with very high liquefaction potential. During even moderate seismic activity, the land is susceptible to liquefaction as noted in the graphic above. Placing housing on these seismically active sites would put the residents at risk of injury or death. Selecting AH Opportunity Sites that are seismically unsafe, is in direct conflict with CWP Policy EH-2.1 – that seeks to avoid development in seismically hazardous areas. Moreover, there can be no benefit that would result from implementation of the Draft Housing Element that would override the impact of severe injury or loss of life from building on ground known to be unstable in even a moderate seismic event and also facing additional complexity and risk by post seismic activities, such as Tsunami’s and Seiches.

3. Earthquakes and Related Hazards-Equitable Data and Analysis.

Based upon research from Strawberry property-owners, it has become evident that current seismic data and analysis, consistent with the same methods being used to analyze all proposed sites specific to the Housing Element are not being utilized or applied consistently or in a uniform manner. Specific to Strawberry sites analysis, we believe

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that the information may not be complete and/or unavailable at this time. Thus, any decisions based on incomplete or dated data and analysis should be disregarded, until such a time when all data being utilized for the basis of decisions can be similar, equitable and accurate based upon the most current methods, processes and technologies.

4. Pacific and San Francisco Bay Environmental Disaster(s)-Impact on Strawberry, Richardson Bay.

The inherent geographic location of Strawberry, as a peninsula, located at the epi- center of Richardson Bay, adds an unpredictable dynamic to any community, especially any high density AH developments. As evident in the Cosco Busan environmental accident the adverse impact on the local community and environment was significant. Numerous disaster scenarios have been developed by Federal, State and Regional agencies such as FEMA, NOAA, DHS, EPA and California EPA for Bay Coastal communities of which the Cosco Busan Oil Spill was but one scenario. It becomes readily apparent to longtime, local community members that living in close proximity to the San Francisco Bay and Pacific Ocean has tangible financial and physical risk. As noted in the California Climate Change Study, the risks and costs resulting from natural or man-made disasters can be impactful and a substantial burden for communities that are ill-equipped and ill-prepared, requiring substantial and persistent mitigation and additional government sponsored financial and structural support.

There are numerous deficiencies in the mitigation measures identified in the SEIR including (1) Many mitigation measures are set forth at a planning level and are not/cannot be analytically related ote the identified impacst at the HE sites.  in short, there’s no evidence that they would actually  mitigate the identfied impact, yet the SEIR assumes full mitigation; (2) Many of the mitigation measures identified in the SEIR relyon programs identified in the CWP EIR that have not yet been implement; (3) If a program has not yet been implemented and there is neither a funding or schedule commitment for its implementation, it cannot be assumed to actually mitigate anything.  Many mitigation measures are based on verbs such as “study,” “consider,” “develop a plan,” “cooperate with,” “participate in,” or “monitor.”   These mitigation measures are applied in the absence of identifying the intensity or extent of the impact.  Absent knowledge of the severity of the impact, the reader can’t be assured that a mitigation measure would be effective.  In fact, the DSEIR has not presented mitigation measures that identify specific and effective measures to reduce project impacts associated with the identified 49 project

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sites to a less-than-significant level.  The EIR applies vague general mitigation measures to unspecified impacts and then assumes full mitigation.

Preliminarily, all of the following impacts require mitigation measures:

  1. Inconsistency with Clean Air Plan
  2. Inconsistency with Clean Air Plan Transportation Control Measures
  3. Increase in Greenhouse Gas Emissions
  4. Construction Noise
  5. Hydrology, Water Quality and Flood Hazards
  6. Damage to Sensitive Natural Communities
  7. Damage to Wildlife Habitat and Movement Opportunities
  8. Surface Fault Rupture
  9. Seismic Ground Shaking
  10. Seismic Related Ground Failure
  11. Tsunamis and Seiches
  12. Adverse Impact to Richardson Bay Wildlife Refuge
  13. Adverse Impact to Strawberry Game Refuge
  14. Richardson Bay Coastal Corridor
  15. Mill Valley School District- need for new buildings somewhere and funds to stafffor increased student population
The environmental review fails entirely to identify or assess alternatives tot he proposed projects and sites either in the summary (as required underGuidelines section 15123(b) (1), or anywhere else in the SEIR (as required under Guidelines Section 15126.6).  Please note that the alternative to the CWP in the CWP EIR have no relevance o the SEIR update, which is required to address alternatives to the selected strategies/sites in the updated HE and other projects.  The CWP EIR alternatives cannot and do not substitute for the SSEIR alternatives because hey are alternatives to different projects.
There are numbers other issues we need time to evaluate and address, which include all of the above, as well as the additional reference material included below.  Again, these lists and the details pertained herein is preliminary and not exclusive.
There are numerous other issues we need time to evaluate and address, which include all of the above as well as the additional reference material included below. Again, these lists and the details pertained herein is preliminary and not exclusive.
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Because the County has repeatedly emphasized that Federal money will be received if these plan, code and zoning changes are made, the 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).Here, however, NETA has not been complied with thus the proposed amendments and Housing Element may not be approved by the Board unless and until an adequate EIS is prepared and submitted.

VII. Notice. We hereby request notice pursuant to Public Resources Code Section:

21167 (f): If a person has made a written request to the public agency for a copy of the notice specified in Section 21108 or 21152 prior to the date on which the agency approves or determines to carry out the project, then not later than five days from the date of the agencies action, the public agency shall deposit a written copy of the notice addressed to that person in the United States mail, first class

postage prepaid. The date upon which this notice is mailed shall not affect the time periods specified in subdivisions (b), (c), (d), and (e).

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Even though we have had only limited time to prepare the basic informational document, in our effort to address the proposed items on the board agenda, we are confident the County has sufficient information to understand that the proposed Strawberry AH Opportunity Sites, and all other amendments to the plan and codes, are inappropriate.

Without question, significant impacts would foreseeably result from expansion of the residential densities and residential land use in both planning cycles or generally as well as the other changes proposed.

Thank you for the opportunity to comment. Please contact either or both of us at and if you have any questions.

Staci Simonton

Attachments: Reference Materials
Cc: Marin County Planning Commission

Richard L. Harris