Marin supervisors delay decision on housing policy language

Faced with following either the recommendation of its staff or the planning commissioners, Marin County supervisors will wait to decide on how to approach a court order regarding the countywide plan.

In March, Marin Superior Court Judge Sheila Lichtblau ordered the county to remove clauses that were inserted into the countywide plan that give it legal precedence over community plans when considering proposed multifamily or mixed-use housing.

The Planning Commission has recommended that the county comply with the order and leave it at that. The Marin County Community Development Agency, however, has insisted that parts of the community plan, most notably its housing element, must be rewritten.

The planners state that the precedence clauses were inserted to override language in some of the community plans that could prevent the county’s housing element from complying with a state mandate to “affirmatively further fair housing.”

Under the new direction, multifamilly housing must be built in some of the most affluent areas of the county. They say removal of the precedence clauses will require the insertion of new language to achieve the same goal.

Furthermore, the planners warn that if the county’s housing element fails to affirmatively further fair housing, it might not be recertified by the state, leaving the county vulnerable to severe state penalties and the so-called “builder’s remedy,” which allows nearly unrestricted development.

On Tuesday, supervisors voted unanimously to seek an extension of the judge’s Nov. 12 deadline for removing the precedence clauses to allow more time for Bruce Corcoran, who filed the lawsuit that necessitated the changes, and county’s planning staff to try to hammer out a compromise.

“This is really about trying to thread the needle to satisfy both sides as much as we can,” said Supervisor Dennis Rodoni. “I think we need to do more work.”

Supervisor Eric Lucan said, “I see buying ourselves a little more time.”

Supervisor Mary Sackett said, “It’s completely appropriate. We were jammed into a very short time period, which left many feeling unheard.”

Members of the Planning Commission were among those feeling unheard.

“I think that the state would like to do away with planning commissions, because we basically have no discretion anymore, but I also feel like we are either being manipulated or ignored by the county,” commissioner Christina Desser said on Sept. 23, when the commission discussed a proposal by planning staff to insert new language into the countywide plan.

The commission rejected planning staff’s recommendation to approve the new wording and instead sent its own recommendation to county supervisors to only remove the precedence clauses, as the judge had directed.

“I think generally this new proposed language is an overreach,” said commissioner Rebecca Lind at the time. “It is overly broad and unnecessary.”

It wasn’t just the language to which the commission objected. Planning commissioners also faulted planning staff for consulting with state housing officials and getting their approval before presenting the wording to them.

“I acknowledge that we didn’t build in that early input opportunity from the commission,” Sarah Jones, director of the Community Development Agency, said Tuesday. “Going forward, we need to make sure that the public and the Planning Commission have the necessary voice in land use matters as we accommodate these new processes”

Jones presented supervisors with a rewrite of the language that was introduced to the commission and included it as another option the supervisors could consider.

“We’ve drafted a third option that aligns with the Planning Commission but provides the information called for in Housing and Community Development’s published guidance,” Jones said.

As an example of the changes, Jones said the word “harmonize” was replaced with the phrase “weigh and balance.”

During public open time, Corcoran, the plaintiff in the suit, said, “That’s not true because the Planning Commission hasn’t even seen option C.”

Corcoran asserted that, like the original precedence clauses, which the judge deemed unlawful, “Option C adds new language that also subordinates community plans.”

“Is it that HCD will only certify Marin’s housing element if it contains language that allows planning staff to override community plans whenever it wants?” Corcoran asked.

He warned supervisors if they approved either set of new wording presented by the planning staff, they would be making the county vulnerable to additional lawsuits.

“Attorneys will line up to defend community plans, and they will win,” Corcoran said. “At some point you have to stand up to HCD, and today is an opportunity to do that.”

Members of the public lined up Tuesday to express their support for the Planning Commission and its recommendation.

Amy Kalish, director of CitizenMarin.org and a member of the Tamalpais Design Review Board, presented the supervisors with a petition signed by 550 people calling on them to follow the Planning Commission’s recommendation.

“Option C does not follow the court order and complicates the issue,” Kalish said. “It gives the county, meaning staff, more power. Staff has lost public trust, and we know if they have the power to weigh and balance the differences between plans, the outcome will always be the same.”

Susan Hopp said, “The fact that staff is attempting to circumvent the Planning Commission’s recommendation to simply remove the precedent clauses and instead insert new language that essentially recreates them is not right and not democratic.”

Kate Powers, a Marin Conservation League board member speaking on her own behalf, said it would be a much better process if the Community Development Agency were to prioritize making changes to those specific community plans that “covertly support exclusionary housing practices or truly have policies that prevent the county from following affirmatively furthering fair housing.”