144 Belvedere Drive
Mill Valley, CA 94941
September 16, 2013
VIA E-MAIL AND HAND DELIVERY
Marin County Board of Supervisors Marin County Counsel
3501 Civic Center Dr.
San Rafael, CA 94903
Re: Further 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:
Before the first public hearing before the Board of Supervisors scheduled for tomorrow on the above-referenced agenda items, including the environmental impact analysis required for approval prior to the approval of any other agenda item, I would like to provide you with important additional information for consideration and inclusion on the record.
Specifically, this letter further addresses my deep concerns, shared by many, many members of the community, about the foreseeable impacts from the proposed projects and the consequential impact on increased student enrollment on the physical capacities of public school buildings, the necessity of new construction of school buildings, related staffing needs and the environmental impacts thereof, as well as the environmental impacts on increased traffic and related environmental issues from further increases to student enrollment throughout the district.
Specific concerns include the failure by the County to evaluate these environmental impacts of the reasonably foreseeable need to construct new schools and the increased traffic generated by additional increases of school enrollment. This letter also provides attached data about other related significant social and economic impacts, which is reasonable to foresee would lead to physical changes in the environment- all of which must be required under CEQA, particularly for all of the 49 “site-specific” evaluations (individually and cumulatively) purportedly conducted in the “SEIR”.
Legally, this is information is all highly relevant for the requisite CEQA analysis, which this Board must independently consider and evaluate. Reliance on the approval by only three of seven planning commissioners, the three of whom may have biases in this
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type of development, is improper and constitutes an abuse of discretion as I cited in my earlier comment letter to this board on September 14, 2013.
These impacts must be evaluated under CEQA and as demonstrated below with governing case law, SB 50 does not exclude them. In addressing this very issue, including the view taken by the county here relying on SB 50, the Court recently held in Chawanakee Unified School Dist. v. County of Madera (2011)196 Cal.App.4th 1016, as follows “the phrase ‘impacts on school facilities’ used in SB 50 does not cover all possible environmental impacts that have any type of connection or relationship to schools. As a matter of statutory interpretation, we conclude that the prepositional phrase “on school facilities” limits the type of impacts that are excused from discussion or mitigation to the adverse physical changes to the school grounds and school buildings, and “any school-related consideration relating to a school district’s ability to accommodate enrollment.” (Gov.Code, § 65996, subd. (c).) Therefore, the project’s indirect impacts on parts of the physical environment that are not school facilities are not excused from being considered and mitigated.
Applying this statutory construction leads us to conclude that an impact on traffic, even if that traffic is near a school facility and related to getting students to and from the facility, is not an impact “on school facilities” for purposes of Government Code section 65996, subdivision (a). From both a chronological and a molecular view of adverse physical change, the additional students traveling to existing schools will impact the roadways and traffic before they set foot on the school grounds. From a funding perspective, the capped school facilities fee will not be used by a school district to improve intersections affected by the traffic. Thus, it makes little sense to say that the impact on traffic is fully mitigated by the payment of the fee. In summary, we conclude the impact on traffic is not an impact on school facilities and, as a result, the impact on traffic must be considered in the EIR.”(Emphasis added.)
Furthermore, the Chawanakee court concluded that “the reasonably foreseeable impacts of that construction on the non-school physical environment are not “impacts on
the school facilities” and are not excluded from consideration in the EIR. For illustrative purposes only, the impacts on the non-school physical environment that might result from the construction include dust that degrades air quality and noise caused by the construction activity. These types of impacts to the non-school physical environment are caused indirectly by the project and should be considered in the EIR. (See CEQA Guidelines, § 15358, subd. (a)(2)[indirect effects caused by the project].)”
The Chawanakee court provided a thoughtful construction of the various statutes, which this Board may find helpful and informative, quoted below:
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“1. Government Code section 65996, subdivision (a):
The version of Government Code section 65996, subdivision (a) in effect prior to the enactment of SB 50 listed certain statutory provisions as “the exclusive methods of mitigating environmental effects related to the adequacy of school facilities when considering the approval or the
establishment of conditions for the approval of a development project….” (Stats.1992, ch. 1354, § 6.)
SB 50 changed subdivision (a) of Government Code section 65996 to provide that, notwithstanding CEQA or any other provision of law, Education Code section 17620 and certain provisions for interim urgency measures “shall be the exclusive methods of considering and mitigating impacts on school facilities that occur or might occur as a result of any legislative or adjudicative act … involving [the approval of the] development of real property….” (Education Code section 17620 authorizes the governing board of any school district to levy a charge against any construction within the boundaries of the district for the purpose of funding construction or reconstruction of school facilities, subject to the limits “set forth in Chapter 4.9 (commencing with Section 65995) of Division 1 of Title 7 of the Government Code.” The limits include a cap on the school impact fee imposed on residential construction ($1.93 per square foot) and commercial construction ($0.31 per square foot). (Gov.Code, § 65995, subd. (b)(1), (2).) The caps are adjusted every two years for inflation. (Id., subd. (b)(3).))
The Legislative Counsel’s Digest described this change as follows:
“(7) Existing law sets forth the exclusive methods of mitigating environmental effects related to the adequacy of school facilities when considering the approval or establishment of conditions for the approval of
a development project under [CEQA].
“This bill would, notwithstanding any other provision of law, instead, set forth exclusive methods of considering and mitigating impacts on school facilities which occur or might occur as a result of any legislative or adjudicative act by any state or local agency involving, but not limited to, the planning, use, or development of real property or any change of governmental organization or reorganization.” (Legis. Counsel’s Dig., Sen. Bill No. 50 (1997–1998 Reg. Sess.).)
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2. Other provisions
Beside subdivision (a) and its reference to “the exclusive methods of considering and mitigating impacts on school facilities,” other provisions in Government Code section 65996 mention mitigation and define the
term “school facilities”:
“(b) The provisions of this chapter are hereby deemed to provide full and complete school facilities mitigation and, notwithstanding [Government Code] Section 65858, or [CEQA], or any other provision of state or local law, a state or local agency may not deny or refuse to approve [the] development of real property … on the basis that school facilities are inadequate.
“(c) For purposes of this section, ‘school facilities’ means any school- related consideration relating to a school district’s ability to accommodate enrollment. [¶] … [¶]
“(e) Nothing in this section shall be interpreted to limit or prohibit the ability of a local agency to mitigate the impacts of land use approvals other than on the need for school facilities, as defined in this section.” (Gov.Code, § 65996.)
The Legislature’s findings and declaration of policy regarding financing school facilities and mitigation of development impacts on those facilities is addressed in Government Code section 65995, subdivision (e):
“[T]he financing of school facilities and the mitigation of the impacts of land use approvals … on the need for school facilities are matters of statewide concern. For this reason, the Legislature hereby occupies the
subject matter of requirements related to school facilities levied or imposed in connection with, or made a condition of, any land use approval, … and the mitigation of the impacts of land use approvals … on the need for school facilities, to the exclusion of all other measures, financial or nonfinancial, on the subjects. For purposes of this subdivision, ‘school facilities’ means any school-related consideration relating to a school district’s ability to accommodate enrollment.”
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Subdivision (h) of Government Code section 65995 provides that payment of the statutory fee is “deemed to be full and complete mitigation of the impacts of any legislative or adjudicative act, or both, involving [the] development of real property … on the provision of adequate school facilities.” Furthermore, a public agency may not refuse to approve the development of real property based on the developer’s refusal to
provide school facilities mitigation that exceeds the amount authorized by statute. (Gov.Code, § 65995, subd. (i).)”
On the evidentiary side, I have appended some important information materials demonstrating the strains already existing in Mill Valley public schools with the current trend of increased enrollment and the school capacity issues. It is reasonably foreseeable that expanding the number of residential units that may be developed in this school district will lead to increased enrollment and given both the individual and cumulative impacts, it is reasonably foreseeable the increased enrollment will necessitate the need to construct new schools somewhere within the district, and staff same, among other things. Given the location of the schools, it will also increase traffic congestion throughout Strawberry and Mill Valley. All of these materials, and much more, are readily available on the government and district websites, the news websites, etc. Please review them for yourselves.
These attached reference materials include: the comprehensive and detailed Mill Valley School District Facilities Master Plan, news releases and news articles the MVSB Resolution re: bonds, and information from Kiddo on school funding needs. Of course there is a lot of other information this board should investigate on this issue in order to complete an adequate and complete environmental review.
Adding to the September 14, 2013 letter addressing significant economic and social impacts, which are reasonably foreseeable will lead to physical impacts on the environment, attached are important reference material concerning other impacts from the various proposed amendments, including but not limited to (1) decreased
property values for densely adding high-density housing as proposed in potential clusters to single areas and districts; (2) reasonable foreseeability that property values will no longer appreciate; (3) the state and county are putting at risk revenue and have not analyzed and reported the risk; and (4) the downstream loss in property tax revenue and adverse impact on programs dependent on related funding has not been addressed- and all the physical impacts that leads to as a result.
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Another matter has recently come to my attention regarding the application of the AHCD in Strawberry. Namely, it has been reported that the County knows about a new GGBTS development plan for a large-scale residential project. As you may know, there are concerns about disclosure and process issues, raised by other residents, but there is also a significant concern about the approach in the SEIR to utilize 60 housing units (which is likely not permissible anyway) of the current entitlements of GGBTS to develop 93 student and faculty units. The consequence is that the County knows, or should know, the GGBTS plan along with the application of the AHCD is exceeding any current entitlements. Thus, assuming consistency consistent with its existing entitlements is wholly insufficient, as well as misleading to the public, and will fail.
This is all part of the record. The record of proceedings should include all publicly-available environmental document prepared for the project, whether or not such documents are subsequently revised or superseded by subsequent documents. In Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 154, the Court of Appeal held that the first publically released initial study for a proposed project was part of the record even though that document was later superseded by a revised initial study. “The fact that a revised study was later prepared does not make the first initial study any less a record entry nor does it diminish its significance.” (Ibid.)
Furthermore, Public Resources Code section 21167.6(e)(10) recognizes that the record of proceedings should include at least some scientific or technical material on which the recommendations of staff or consultants are based. The records shall contain “copies of studies or other documents relied upon in any environmental document prepared for the project and other made available to the public or included in the Respondent agency’s files on the project.”
“Internal agency communications” as that phrase is used in Public Resources Code section 21167.6(e)(10), may be relevant to the question of whether a decision- making body’s action is supported by substantial evidence if such an internal communications were a basis for staff reports or recommendations that were physically or orally delivered to decision-makers.
Likewise, administrative draft environmental documents, “deliberative materials,” and draft findings, other kinds of “internal communications” are part of the record. (See Chapparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1148.)
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Thank you again for the opportunity to comment. Please contact me at firstname.lastname@example.org if you have any questions.
Attachments: Reference Materials