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IJ article: Marin planning board struggles with housing mandate complexities

Updated: Jan 3, 2023

"During a marathon six-hour meeting, the Marin County Planning Commission discussed three facets essential for meeting the state mandate for new housing.

Commissioners expressed major reservations about all three.

The county is under a tight deadline to show it can permit 3,569 more residences in unincorporated areas by 2030. At its meeting on Monday, the Planning Commission reviewed the three components: a revised housing element to the countywide plan, which contains a proposed list of 79 preferred sites for locating the housing; the countywide plan’s first safety element; and a newly created “form-based” building code that employs objective design and building standards.

The commissioners must make final recommendations to the Board of Supervisors regarding these components on Jan. 5.

A host of new state laws in recent years has severely limited the ability of cities and counties to determine what gets built in their communities. The laws have been passed in reaction to the state’s shortage of affordable housing and its rising homeless population.

Among them, SB 35, which took effect in 2018, requires a ministerial approval process for projects in jurisdictions that haven’t created their state-mandated quota of housing. Ministerial projects are statutorily exempt from having to comply with the California Environmental Quality Act, as well as local review.

One of the last areas of discretion left to local governments under state law is “objective standards,” such as height, setbacks, lot coverage, percentage of open space, density and parking requirements. The county used a state grant to pay $1.14 million to Opticos, a firm in Berkeley, to develop a “form-based” building code that employs objective design and building standards.

The form-based code won’t limit the number of residences that can be built on parcels. However, it will, in some cases, require developers to place their residences in smaller buildings, instead of one or more massive structure. The objective is to ensure that the new buildings fit in aesthetically with existing structures as much as possible.

The plan is to require sites subject to SB 35 or any other state legislation that mandates ministerial review to conform to the form-based code.

Commissioners, however, pushed back on a planning staff recommendation that developers also be allowed to use the form-based code for all urbanized sites where the development of multiple primary dwellings is allowed by the county. This would mean the development of the sites would become ministerial.

Commissioner Rebecca Lind suggested that the county perform more analysis before effectively allowing ministerial development of all sites zoned for multi-residence projects.

“It would be very useful to get developer/community feedback on what kind of incentive that would create,” Lind said.

Commissioner Andrea Montalbano said,

“I think that is a fantastic idea.”

But Marin County Planning Manager Jeremy Tejirian said that without the provision the county might fail to meet its state-mandated goal for more housing.

Leelee Thomas, deputy director of the Marin County Community Development Agency, said that if the county doesn’t allow ministerial development of all multi-residence sites in Marin, the CaliforniaDepartment of Housing and Community Development might reject its housing element.

Thomas said that because of new state law

s, the housing element must contain programs to affirmatively further fair housing, which involves looking at patterns of racial segregation and policies that reinforce that segregation.

“We tend to focus on what the housing sites are and their default zoning,” Thomas said. “But these programs are just as important to have a certified housing element.”

Commissioners and members of the public pointed out that developers could circumvent the requirements of the form-based code by se

eking waivers and concessions granted by the state for projects that contain a requisite amount of affordable housing.

Tejirian conceded the point. “It’s like an Achilles’ heel,” he said.

The commissioners also reviewed proposed zoning changes to more than 100 potential housing sites and other countywide plan amendments, including a provision that many commenters asserted would gut community plans.

The sites need to be rezoned to accommodate high enough densities to make housing feasible for lower-income households. However, many of the sites, including those owned by the Buck Institute for Research on Aging in Novato and the St. Vincent’s School for Boys in San Rafael, have constraints that would make such dense housing impractical. As a result, county planners have rezoned only portions of these sites for higher densities.

Some commissioners and members of the public criticized this approach.

“It just doesn’t make sense from a development standpoint to have two different zoning designations,” said Don Dickenson, president of the Planning Commission.

During the public comment period, Riley Hurd, a prominent local land use attorney, said, “I implore you not to take the island approach of rezoning.”

“Split zoning is a bad idea,” he said. “No developer in the world will build a five-unit-per-acre product type next to a 30-unit-per-acre product type. So get rid of that.”

Objections were also raised during the meeting regarding the planning department’s proposal to adopt a countywide plan amendment making community plans subordinate to the countywide plan.

Jillian Zeiger, a county planner, said the change is necessary because requirements in community plans related to density, floor area ratio, setbacks and height are limiting the development of multi-residence projects.

Zeiger, however, said, “We are in no way getting rid of the community plans.”

To which commissioner Peggy Curran responded, “I understand that the community plans have not actually been eliminated, but I do think they’ve arguably been eviscerated.”

Agreeing with Curran, Hurd said, “If the intent was not to eviscerate the community plans, then we need a real rework of this language.”

The commissioners and the public who spoke during the meeting were no more satisfied with the safety element, a discussion of which kicked off Monday’s meeting.

“We have a lot of good policies in the safety element,” Dickenson said, “but it just doesn’t seem to me that they are reflected in a significant number of the sites.”

Dickenson identified several properties, including the Buck Institute for Research on Aging site, that are in flood plains, in areas expected to experience more than 3 feet of sea-level rise by 2100, or on earthquake faults.

“From the safety standpoint,” Dickenson said, “our adopted policies say there should be no residential development there.”

In a letter to the commission, Terri Leker of Santa Venetia, wrote, “We and our neighbors remain gravely concerned about the implications of the draft housing and safety elements on our ability to evacuate in the event of an emergency.”

“We ask again that you consider the magnitude of risk that this unfettered new development places on Santa Venetia, which relies on a single road in and out and is already crippled by daily gridlock,”Leker wrote.

Planners said the place to address such risks is in the environmental analysis of the proposed sites. That analysis remains in progress and was unavailable to the commission on Monday. The environmental impact report (EIR) on the sites, however, is a programmatic EIR that focuses on the broad effects of developing all of the sites, not the constraints on specific sites.

Commissioner Christina Desser noted that if developers are allowed to use the form-based code to develop multi-residence projects, there will be no environmental analysis of those projects under the California Environmental Quality Act (CEQA).

“We kind of misrepresented things to the public about this,” Desser said. “We represented over and over again that there was going to be another bite of the apple for the public, that every project was still subject to CEQA and an EIR. But they’re not really going to get to weigh in on these projects.”

The commissioners are scheduled to meet on Jan. 5 to make their recommendations to the Board of Supervisors. The supervisors are scheduled to vote on approval of the housing element, code amendments and the form-based code on Jan. 24.

The statutory deadline for submitting a complaint housing element to the state is Jan. 31.

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