{"id":155,"date":"2013-12-15T12:03:02","date_gmt":"2013-12-15T19:03:02","guid":{"rendered":"http:\/\/staging.strawberry94941.org\/?page_id=155"},"modified":"2013-12-15T21:54:57","modified_gmt":"2013-12-16T04:54:57","slug":"letter-housing-element-august-30-2013","status":"publish","type":"page","link":"http:\/\/strawberry94941.org\/?page_id=155","title":{"rendered":"Letter Housing Element August 30, 2013"},"content":{"rendered":"
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August 30, 2013<\/p>\n

VIA E-MAIL<\/b><\/p>\n\n\n\n
Marin County Board of Supervisors
\nMarin County Counsel
\n3501 Civic Center Dr.
\nSan Rafael, CA 94903
\nActing Director of HCD
\nrandall.deems@hcd.ca.gov<\/td>\n		<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n\n
Re:\u00a0September 10, 2013 BOS Meeting and Action:\u00a0 Comments and Requests re: Housing Element Update, SEIR, Amendments to Marin 2007 Countywide Plan, Amendments to Development Code and Zoning Maps<\/i><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Dear County Supervisors and County Counsel:<\/p>\n

This is a joint letter submitted by the undersigned residents and property owners in Strawberry, a community located in unincorporated Marin County. We are writing to comment and request relief regarding the above-referenced meeting and the following: the County of Marin\u2019s proposed draft 2012 Housing Element Update and the corresponding amendments to the 2007 Marin Countywide Plan, Environmental Impact Report, amendments to the Development Code and Zoning Maps, all of which the Board of Supervisors is scheduled to review on September 10, 2013.\u00a0 Our comments and requests are directed to the provisions of the aforementioned county documents and plan documents concerning and potentially impacting the area of Strawberry, including but not limited to, the 73-plus acres of property owned by the Golden Gate Baptist Theological Seminary (referenced herein as either \u201cGGBTS\u201d or \u201cthe Seminary\u201d).\u00a0 Some of the undersigned own real property located within 300 feet of the Seminary property and did not receive the required notice of hearings, administrative actions taken, or public meetings that have taken place over the last several years concerning the subject property<\/p>\n

While the formal public comment period with the Planning Commission may have closed, these preliminary comments and requests for relief are nonetheless timely because, as explained below, the County failed to provide the residents and property owners in Strawberry with the requisite notice of the Housing Element.\u00a0 Furthermore, I request an extension of 90 days before this board takes any action, to allow an examination by experts and specialists of these matters, including but not limited to, the impact of the proposed action and amendments and evaluation of reasonable alternatives.<\/p>\n

As a preliminary matter, we would like to remind (or alert) the Board that the proposed zoning and\/or planning for 45-60 units of new affordable-housing units are separate and distinct from the Seminary faculty or student housing entitlement.\u00a0 Indeed, the Department of Housing and Community Development (HCD)\u00a0rejected\u00a0designating any part of the Seminary\u2019s faculty and student housing\u00a0entitlement as \u201cAffordable Housing.\u201d Thus from both a legal and practical perspective, any prior notices, hearings, administrative actions, zoning, environmental impact reports, etc., that related to the Seminary\u2019s current entitlement to build 93 units for faculty and student housing \u2013 does not and cannot be utilized for any of the following: (1) to avoid proper notice requirements; (2) to undermine the application and prevalence of the community and master plans, including the Strawberry Community Plan; (3) to rely on a program EIR without preparation of a sufficient EIR for this project; or (4) for any and all other efforts \u00a0to \u201cpiggyback\u201d on the procurement of the Seminary\u2019s 1982 entitlement to build specified student and faculty housing units. Furthermore, the prior EIR is outdated, as the environment has changed significantly since then.\u00a0 This is another reason the County cannot repurpose an outdated EIR conducted decades ago for the Seminary dorms to use for the site designations in the Housing Element and AHCD.<\/p>\n

Also, we understand this Board and the Planning Commission has been advised of the conflict the Housing Element designation and proposed AHCD zoning has with the Strawberry Community Plan and the GGBTS Master Plan, particularly regarding development entitlements.\u00a0 Please be advised that Marin County Development Code Section 22.44.035\u00a0does not<\/i><\/b>\u00a0exempt the 45 designated AH units in the Housing Element and the AHCD land use from the requirements of the master plans because, under the specific provisions of the code section, the exemption does not apply if and when the \u201capplicable\u00a0Community Plan or Community based visioning plan approved by the Board contains policies that directly require Master Plans for development on specific properties<\/i>.\u201d Here, the community plans mentioned above do exactly that \u2013 and as such, this code section may not be invoked as an exemption to the application and prevalence of the more restrictive terms of the community plans.\u00a0\u00a0 The County has both previously and recently advised that any other housing would require an amendment to the master plans. This Board is not authorized to put the cart before the horse and improperly zone for new housing units without an amendment to the master plans permitting any such development.\u00a0 A project EIR is also required for 45-60 new AH units that are not part of any current entitlement.<\/p>\n

Furthermore, project descriptions, and related impact assessments, should also account for reasonably foreseeable future phases, or other reasonably foreseeable consequences, of proposed projects, compliance with which is not evidenced in the EIR. (See\u00a0Laurel Heights Improvements Assn v. Regents of the University of California\u00a0<\/i>(1988) 47 Cal.3d. 376, 393-399).<\/p>\n

In addition to the above, there are a host of additional reasons why the Seminary\u2019s entitlement to develop student housing units are not interchangeable with AH units designated in the Housing Element and the AHCD proposed zoning, and, to that end, we reference and incorporate by this reference the comments and letters to the county planners and board submitted by fellow Strawberry resident Bruce Corcoran.<\/p>\n

Without waiving any rights, and expressly reserving same, I submit the following comments.<\/p>\n

1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The County Did Not Provide Adequate Or Appropriate Notice To Strawberry Property Owners Which Is A Violation Of Due Process And Equal Protection Rights That Will Likely Result In Prejudice And Substantial Injury To Strawberry Property Owners That May Be Avoidable If Remedied Now.<\/h1>\n

Most Strawberry property owners, including ourself, learned only recently that the County\u2019s Housing Element Update and related proposed amendments and plans seek to designate property for high-density housing in the district of Strawberry.\u00a0 Despite the fact that many Strawberry property owners like me have significant and longstanding property rights, the County did not notify all Strawberry property owners of the many meetings, hearings, and documents related to the designated sites in Strawberry in the Housing Element process.\u00a0 In fact, the Housing Element does not appear to contain any evidence that the County complied with sections 21083.9 and 21092 of the California Public Resources Code, or with section 15087 of Title 14 of the California Code of Regulations with respect to Strawberry property owners.<\/p>\n

Perhaps this due-process violation was a result of a significant error in the Housing Element whereby the stated location of the subject property is in the community of \u201cTiburon.\u201d (Please see 2012 Draft Marin County Housing Element (July 2013) Appendix F Page 12 of 16, a true and correct copy of which is set forth below).\u00a0 Strawberry and Tiburon are two distinct communities and providing notice about a designated site in Tiburon does not suffice as proper or adequate notice for any property in Strawberry.\u00a0 In contrast, the Housing Element properly identified sites in other unincorporated communities, e.g., \u201cMarinwood\u201d and \u201cAlmonte.\u201d<\/p>\n

2012 Draft Marin County Housing Element (July 2013) Appendix F Page 12 of 16<\/i><\/p>\n

The County\u2019s failure to provide proper notice to all Strawberry property owners of opportunities to comment upon and discuss the Housing Element and the related SEIR, amendments to the Countywide Plan and codes violates the Strawberry property owners\u2019 Due Process and Equal Protection rights.<\/p>\n

Furthermore, the County also failed to provide the required personal and direct notice of all public hearings and administrative actions taken with respect to the many\u00a0property owners located within 300 feet of the Seminary property<\/i><\/b>.\u00a0 (Marin County Development Code 22.118.020(B)(2)(c).) It is the law of this state and county that \u201c[t]he public shall be provided notice of public hearings and administrative actions in compliance with State law (the Planning and Zoning Law, Government Code Sections 65000 et seq., Subdivision Map Act, Government Code Sections 66410 et seq., and the California Environmental Quality Act, Public Resources Code 21000 et seq.).\u201d<\/p>\n

For your convenience, the full text of the County Code referenced above is set forth in full as follows:<\/p>\n

Marin County Development Code 22.118.020 \u2013 Notice of Hearing or Administrative Action<\/p>\n

\u201cThe public shall be provided notice of public hearings and administrative actions in compliance with State law (the Planning and Zoning Law, Government Code Sections 65000 et seq., Subdivision Map Act, Government Code Sections 66410 et seq., and the California Environmental Quality Act, Public Resources Code 21000 et seq.).<\/p>\n

A.\u00a0 Content of notice. Notice of a public hearing or administrative action shall include the following:<\/p>\n

1.\u00a0 The date, time, and place of the hearing or action (or date before which a hearing or action will not be taken);<\/p>\n

2.\u00a0 The name of review authority and contact information;<\/p>\n

3.\u00a0 A general explanation of the matter to be considered; and<\/p>\n

4. A general description, in text or by diagram, of the location of the real property that is the subject of the hearing or action.<\/p>\n

If a proposed negative declaration or final environmental impact report (EIR) has been prepared for the project, in compliance with the County\u2019s CEQA Guidelines, the hearing notice shall include a statement that the review authority will also consider approval of the proposed negative declaration or certification of the final environmental impact report (EIR).<\/p>\n

B.\u00a0 Method of notice distribution for public hearing actions. Notice of a hearing action required by this Title for a permit, permit amendment, appeal, or amendment shall be given as follows, as required by State law including Government Code Sections 65090, 65091, and 65092:<\/p>\n

1.Notice shall be published at least once in a local newspaper of general circulation in the County at least ten days prior to the decision;\u00a0and<\/i><\/b><\/p>\n

2.Written notice shall be mailed or delivered at least ten days prior to the decision to the following parties:<\/i><\/b><\/p>\n

a. The owner(s) or owner\u2019s agent of the property being considered, and the applicant;<\/p>\n

b. Each local agency expected to provide essential facilities or services to the project, whose ability to provide the facilities and services may be significantly affected by the proposed project, unless the local agency has accepted an alternative means of receiving notification through an on-line method of delivery;<\/p>\n

c.\u00a0All owners of real property within 300 feet of the property which is the subject of the public hearing action, as shown on the County\u2019s latest equalized assessment roll, if the zoning for such property requires a minimum lot area of less than 20,000 square feet or a maximum density higher than two units per acre<\/i><\/b>.\u201d<\/p>\n

Here, the subject property of both the Housing Element designation and the AHCD, to name two specific impacts, is the entire 73-plus acres of property owned by the Seminary.\u00a0 Thus, the County was required to provide written notice for each and every hearing, administrative action, and public meeting on the Housing Element and related amendments and zoning changes that have occurred over the last several years to each and every property owner within 300 feet of Seminary property.\u00a0 This notice should have been provided to hundreds of property owners, but was not.\u00a0 As such, the notice and any action thus far is ineffective as to the Seminary site of the draft Housing Element \u2013 as well as to the amendments to the Development Code, the amendments to the Countywide Plan, the SEIR and all other proposed actions cannot property apply to the Seminary property.<\/p>\n

The July 2013 \u201cnotice\u201d from District 3 County Supervisor Kathrin Sears about the Housing Element, which she e-mailed to only the residents who signed up for her distribution list, is not timely or sufficient.\u00a0 Specifically, it fails to provide the notice required in the code section above.\u00a0 Also, this \u201cnotice\u201d came years after this process began and after the Marin County Planning Commission voted to okay the draft Housing Element for presentation to the Board of Supervisors for approval.<\/p>\n

These errors and defects are substantive in nature and are not merely typographical, technical, or formatting errors. As such, inclusion of the Seminary site from the Housing Element Update as well as the AHCD is improper and should be severed from any documents going forward.\u00a0 In the alternative, we request an extension of at least 90 days for ourselves and other Strawberry property owners to consult with experts so we may prepare and submit thorough comments and objections.\u00a0\u00a0 Moreover, we request that the County permit the Strawberry property owners to prepare and submit comments upon the SEIR before it adopts the Housing Element Update and amendments to the Countywide Plan, Development Code and zoning maps.<\/p>\n

In addition to the due-process violations, there appear to be numerous substantive deficiencies as well, even at a preliminary level of review, with the current proposed Housing Element Update, SEIR, and related amendments.<\/p>\n

2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Public Review Process Of The SEIR Pertaining To Strawberry Property Was Inadequate And Deficient.<\/h1>\n

The requirements for public notice and public participation are even more rigorous with respect to the SEIR.\u00a0 \u201cPublic participation is an essential part of the CEQA process.\u201d\u00a0 CEQA Guidelines \u00a715201.\u00a0 \u201cEnvironmental review derives its vitality from public participation.\u201d\u00a0 (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water District<\/i>\u00a0(2004) 116 Cal.App.4th\u00a0396, 400.)\u00a0 \u201cComments are an integral part of the [final] EIR.\u201d\u00a0Sutter Sensible Planning, Inc. v. Board of Supervisors<\/i>\u00a0(3rd\u00a0Dist. 1981) 122 Cal.App.3d 813, 820.)<\/p>\n

The requirements for public review and participation under CEQA were not satisfied with respect to property located in Strawberry.\u00a0 \u201cThe purpose of requiring public review is to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.\u00a0 Public review permits accountability and informed self-government\u2026Public review ensures that appropriate alternatives and mitigation measures are considered, and permits input from agencies with expertise\u2026Thus, public review provides the dual purpose of bolstering the public\u2019s confidence in the agency\u2019s decision and providing the agency with information from a variety of experts and sources.\u00a0 (Schoen v. Department of Forestry & Fire Protection<\/i>\u00a0(1st\u00a0Dist. 1977) 58 Cal.All.4th556, 573-574 (internal quotation marks and citations omitted); see also\u00a0Save Our Peninsula Committee v. Monterey County Bd. of Supervisors\u00a0<\/i>(6th\u00a0Dist. 2001) 87 Cal.App.4th\u00a099, 133.<\/p>\n

3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The County Must Recirculate the General Plan Update and Associated Specific Plans Environmental Impact Report<\/h1>\n

In addition to the comments above, it appears the County has made several significant changes to the documents.\u00a0 Those changes were never circulated for additional public review as required under section 21092.1 of the California Public Resources Code and section 15088.5 of Title 14 of the California Code of Regulations.\u00a0 In addition, We are not aware of any substantial evidence supporting the County\u2019s decision not to recirculate.\u00a0\u00a0\u00a0See<\/i>\u00a0Cal Code Regs. tit. 14, \u00a7 15088.5(e).<\/p>\n

Therefore, we respectfully request that the County recirculate the EIR prior to taking action on property in Strawberry, including but not limited to the Seminary property.\u00a0 At minimum, the recirculation process should include public notice and the opportunity to comment.\u00a0\u00a0See<\/i>\u00a0Cal Code Regs. tit. 14, \u00a7 15088.5(d).<\/p>\n

4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The County Failed to Conduct Required EIRs for the Seminary Property.<\/h1>\n

The Countywide Plan Update and Associated Specific Environmental Impact Report appear to be styled a \u201cProgram EIR\u201d or even a \u201cFirst-Tier EIR.\u201d\u00a0 The CEQA Guidelines encourage lead agencies to use Program EIRs for broad policies, programs, and plans.\u00a0\u00a0See, e.g.,<\/i>Cal Code Regs. tit. 14, \u00a7 15168.\u00a0 But they also make it clear that agencies must conduct additional environmental review of specific implementation actions which are not fully evaluated in the Program document.\u00a0\u00a0Id<\/i>.<\/p>\n

Here, the SEIR falsely assumes a project EIR is unnecessary for the Hosing Element and AHCD (not just the Countywide Plan Amendments) based on the assumption the County can piggyback on a prior EIR for the Seminary entitlements to develop 93 faculty and student housing units.\u00a0 But as discussed above, the AH units are not interchangeable with the student housing entitlement and reliance on an EIR for the student housing is insufficient and fails.\u00a0 Therefore, CEQA mandates that the County conduct additional environmental review prior to acting on the Housing Element update or any other plan document.<\/p>\n

6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Because The Certification Of The AHCD, Housing Element And Other Amendments To The Countrywide Plan, Development Code And Zoning Maps Are Being Made In Order To Procure Federal Funds Through OBAG, The\u00a0National Environmental Policy Act Applies And Must Also Be Satisfied Before Any Action Is Taken.<\/p>\n

Because Federal money will be received if these plan, code and zoning changes are made, National Environmental Policy Act \u00a0(NETA) must be satisfied as well.\u00a0 Specifically, the NETA requires all Federal agencies to, among other things:<\/h1>\n