MCA appeals Appeals to Supreme Court
NEWS: Supreme Court denies our petition for review
Nearly four years ago MCA took on a challenge to preserve our Marin's character and legacy of environmental stewardship by saying NO to the county on their planning policy, the 2013 Housing Element (HE), was illegal, flawed and over-reaching. We had a narrow victory in the Marin County Superior Court, but ultimately we did not prevail in our subsequent attempts to nullify key elements of its policy. As of now, we regret to inform you that the MCA petition to the Supreme Court to challenge the Appeals Court decision has been denied, and the Supreme Court will not be hearing the MCA Case. The disappointing Appeals Court decision will therefore not be overturned, leaving the future of Marin County unclear and subjected to case-by-case legal challenge for each new development that may be filed in future.
When the Appeals Court rendered its disappointing decision in April, it opted to make this an Unpublished Court decision. This means in essence that the Appeals Court did not want its opinion to stand as precedent for other cases. Likewise, when the Supreme Court made its determination to deny our request for a Hearing within 36 hours of the filing of our Final Brief, we can only surmise that it did so with the knowledge that this bad Appeals Court decision could not be used as precedent in any other case.
As for Marin County’s planning future, the outcome is uncertain. The legal challenge to the HE SEIR (Supplemental Environmental Report) has revealed improper environmental reviews and land use zoning for over 49 land sites (over 5000 acres) throughout the county. Going forward, every new development application on each of the sites named will require that these planning conflicts be re-studied and potentially litigated on a case-by-case basis. We believe this will lead to an inevitable series of expensive lawsuits, prohibitively high costs for development of new affordable housing, and inconsistent, poorly placed and unpredictable outcomes for the location of new affordable housing developments throughout the County.
There are no winners with this disappointing Supreme Court denial.
There are, however, a few silver linings.
The issues raised have delayed--and we hope will discourage—future projects that have been shown to have extremely problematic and improperly evaluated negative impacts to our environment, our communities, our traffic capacity, and our school districts. Unresolved legal issues of improper tiering and inadequate CEQA Environmental Review will be raised for each and every new development application included in this 2013 SEIR.
2) Not only is MCA Attorney Michael Graf deeply knowledgeable on these issues on all sites but he is also now the expert on the flaws of Appellate Courts decision and can give advice and legal expertise as to how these individual challenges may be framed for subsequent legal recourse. He is now positioned to act swiftly and effectively on behalf of each local community, if or when new development applications arise on any of the 49 sites. The work of the MCA is not lost, but remains as an incredible and lasting value to the citizens of Marin as a platform for successful challenge to unacceptable and infeasible new developments in Marin.
And on a related note…
3) The fight against improper CEQA tiering by Marin County carries on. MCA is extremely pleased to find that the resources and energy expended by all MCA supporters is already being put to good use and carried forward in a similar case of Improper CEQA tiering by the Marin County Open Space District in their decision on trail usage. Once again, the County of Marin has failed to meet the threshold of proper environmental (CEQA) review in its countywide planning decisions. MCA Attorney Michael Graf has been retained by Community Venture Partners (http://www.communityventurepartners.org) to take up this challenge for Marin county citizens. Much of the work done for MCA is now serving good purpose on this related effort to enforce California state environmental standards here in Marin County when our County officials fail to comply.
With sad regret, the Court has not rendered an order for the recovery of legal fees and costs. This means we have still some unpaid bills.
If you believe that MCA's goal to make the public aware of the Counties faulty planning policies and thwarting developments that could have further clogged our already tapped out roadways and infrastructure was worth it, please donate to cover the remaining $5500.00 legal costs. These costs were incurred as the process moved up to petitioning the California Supreme Court for a hearing.
MCA, a small group of warriors like the Spartan 300, may have lost this battle but if history is any future indication, we hope the Marin Citizens and neighborhoods will stand up to every ill-conceived high density development proposal and that our work will not have been in vain.
With gratitude for all your advocacy on behalf of Marin’s natural beauty and quality of life,
Meehyun K. Kurtzman and MCA team
The Legal Challenge
The Court's Decision
The Case Development:
9/24/2013BOS certifies HE.
10/24/2013 MCA challenges HE.
3/28/2014 County's effort to dismiss the case fails.
4/30/2014 Case Management Conference. Court allows MCA to conduct their own administrative record. A big WIN for MCA and Marin residents.
9/26/2014Administrative Record Complete.
11/24/2014 Opening Brief Filed. See link above.
11/24/2014 Amended Petition Filed.
12/22/2014 County's Opposition Brief filed.
1/17/2015 Reply Brief to the County.
2/12/2015 The court continues the trial to March 27, 2015 siting "voluminous issues and documents".
3/23/2015 The March 27 Court Hearing has been cancelled.
The Superior Court Judge has ordered a delay of the final Court Hearing in order for a Case Management Conference to be conducted. The Case Management Conference will review the issue of whether a change of venue to another Superior Court, outside of Marin County, would be required for the final adjudication of this case.
3/30/2015The Court recused itself and has reassigned the case to Department B, Judge Chernus.
4/23/2015The Tentative Ruling. See above for link.
4/29/2015 The Court Hearing.
4/29/2015 Honorable Judge heard both Plaintiff and Respondents arguments and he will make a final ruling within 90 days.
6/10/2015The Court’s Decision: Superior Court Strikes Down the Marin County Housing Element SEIR for Violating CEQA
The Court’s Conclusion:
“The court finds that the Housing Element SEIR violated CEQA by not conducting its own environmental analysis for the significant traffic impacts discussed above, which impact was not adequately covered in the prior CWP EIR. The petition is granted on this ground…. “
Pursuant to Pub Res Code 21168 (9)b, it is ordered that a preemptory writ of mandate shall issue directing Respondent County to set aside the certification of the SEIR, the Approvals for the Housing Element and its Statement of Overriding Considerations, and take no further action until Respondent conducts the necessary environmental review consistent with CEQA” (California Environmental Quality Act) “… and to recirculate that new document as necessary.”
7/6/2015BREAKING NEWS: The county officially filed a motion to overturn the Court’s decision in favor of MCA by asking the judge to vacate his decision. This means that the judge voids his own ruling and re-instate the SEIR.
7/16/2015 MCA's Response to Motion to Vacate.MCA attorney Michael Graf expertly describes why the judge should keep the decision to set aside the SEIR. If one must read any of the briefs written so far, this document is a must read.
8/7/2015 Honorable Judge Chernus denies County's Motion to Vacate. He is very firm in his response to county as to why their arguments have no merit. To read his ruling follow the link above.
3/9/2016 Michael Graf files MCA appeals brief.
9/2/2016 Michael Graf files MCA appeals reply brief.
2/1/2017Appellate Court's Oral Argument. 350 McAllister Street, San Francisco CA 94102.
3/9/2017 Appeal Court Opinion See above
3/24/2017 MCA petitions for Re-hearing
4/6/2017 Appeals Court Denies Petition for Rehearing
4/18/2017 MCA appeals to Supreme Court
5/22/2017 Reply answer to Petition Filed
5/24/2017 Supreme Court denies Petition for Review
Marin Community Alliance (MCA) is a grassroots local community organization formed to protect and preserve the character of Marin County's communities and ensure that the local government planning policies respect and represent the interests, needs and desires of its constituents and their neighborhoods.
Michael Graf, who successfully won the SPAWN case against the county, is now representing MCA as legal counsel as our case proceeds to full litigation.
Want to help? We can use your help! Please email us.