Marin planners revise development policy to meet court order

A judge told the county it had to change "improper" language that gave it broad power to override community land-use standards.

Marin County planning officials have released for public review a set of proposed changes to the countywide plan that were mandated by a judge.

Superior Court Judge Sheila Shah Lichtblau ordered the county to remove “precedence clauses” from the document that directed the “subordination of community plans to the Countywide Plan.” Her order followed a lawsuit by Bruce Corcoran, a Strawberry resident.

Community plans are locally drafted guidelines that allow distinct communities located within the unincorporated area of Marin County to state their preferences on land use and development policies. After being approved by county supervisors, the plans are incorporated into the countywide plan. The county has 22 such plans.

“I am pleased that Marin County has removed the unlawful precedence clauses in the Countywide Plan and housing element, as directed by Marin Superior Court,” Corcoran wrote in an email, “but I am disappointed that I had to file a lawsuit to reverse an error that should have been obvious from the start to planning staff.”

“I am also critical of the five county supervisors for approving the housing element with unlawful language that unnecessarily overrode policies of community plans because they were in a rush to meet the state filing deadline,” Corcoran said.

The Marin County Planning Commission recommended against inserting the precedence clauses into the countywide plan.

“I am pleased with the changes,” said Andrea Montalbano, who was a planning commissioner at the time and cautioned against adopting the language. “I will never understand why the county fought so hard to keep that language in, despite literally hundreds of letters from the public asking them to remove it.”

Corcoran filed his suit after supervisors made changes in the countywide plan that subordinated community plans so the countywide plan would conform with a new housing element.

The county had to submit the housing element to the Department of Housing and Community Development for its approval as part of its state mandate to accommodate at least 3,569 new residences in unincorporated areas by 2031.

Prior to the changes, the countywide plan specified that in cases where the countywide plan and community plans differed, the plan with the more specific language would take precedence. The countywide plan was amended, however, to state that “for residential and mixed-use projects where there are land use designation or development density and floor area differences, the countywide plan shall prevail.”

In calling for the changes, county planners said Marin faced new requirements for its housing element to “affirmatively further fair housing,” which requires active steps to racially integrate communities. They asserted that some of the language in the community plans conflicted with this goal.

In her decision, however, Lichtblau said that “many of the precedence clauses go beyond providing specific guidance to community plans to comply with the county’s statutory requirement to provide goals and policies to affirmatively further fair housing.”

“The court finds that these precedence clauses apply to all inconsistencies, known and unknown, those which arose out of attempts to develop more housing and those that did not,” Lichtblau wrote. “This is improper.”

Corcoran said that even after the precedence clauses are removed, “The county still has a mess to resolve.”

“The internal inconsistencies between the countywide plan and the housing element and community plans remain,” he said. “Now we have uncertainty. Which policy prevails, the countywide plan and housing element, or community plans?”

Corcoran said that changes the county supervisors approved to the development code with a 3-2 vote in June might be unlawful because they are inconsistent with community plans. The modifications included removal of a provision that properties “with sensitive habitat or within the ridge and upland greenbelt or baylands corridor, and properties that lack public water or sewer systems, shall be calculated at the lowest end of the density range.”

In a letter opposing the move, the Marin Conservation League wrote that the change would affect properties throughout the county.

Corcoran notes that many of the county’s community plans limit the height, floor area ratio and density of development in baylands, ridge and upland greenbelt corridors. Lichtblau, however, denied a motion by Corcoran to add another remedy to her decision that would prohibit the county “from relying on precedence clauses to adopt zoning amendments that conflict with community plans.”

Sarah Jones, the director of the Marin County Community Development Agency, said, “Regarding any inconsistencies with community plans, the Board of Supervisors has adopted Program 32 of the housing element, which calls for review of zoning and policies, and for corrective measures as necessary.”

The description of Program 32 in the housing element states that “staff found that the community plans contained exclusionary language for the development of multi‐unit projects and included discriminatory language such as ‘protecting community character.'”

Program 32 further states that none of the countywide plans provisions “will be interpreted by the County in a manner that violates state or federal law, including state housing law regarding affirmatively furthering fair housing, or the authority of any state agency.”

Regarding the more recent development code changes, Jones said, “We did not identify any inconsistency between the zoning changes and community plan policies.”

Regarding the court-ordered removal of the precedence clauses, she said, “We don’t expect any change in the evaluation of any pending development applications resulting from these amendments.”

The proposed new wording has been posted on the Community Development Agency website for a seven-day public review before it is submitted to the state’s Department of Housing and Community Development.

A public workshop on the changes is planned for August. The county Planning Commission will review them in September. Then they will go to the Board of Supervisors for adoption.