MCA Appeals to Vacate SEIR Permanently

Dear Marin citizens, Supporters, Donors and Neighborhood Leaders:

Last June we sent out notices to you with this headline:

Superior Court Strikes Down the Marin County Housing Element SEIR for Violating CEQA

The Marin Community Alliance filed its legal challenge against the Board of Supervisors County Housing Element SEIR in Oct. 2013 on the grounds that it failed to comply with State Environmental Quality Act requirements. In a long awaited court ruling, Marin Superior Court Judge Roy Chernus ruled in favor of the MCA and ordered that the County Housing Element SEIR, approved by the Board of Supervisors in 2013, be set aside as invalid unless the County conducts additional study and analysis.

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.” (Read more at home page).

Today I am announcing MCA’s appeals to that decision(see home page).  Even though our earlier decision was a victory for our Marin and its citizens, MCA decided to appeal to the higher court to expand its victory to make certain that the county will not resuscitate its far-reaching SEIR after a band-aid traffic study.  Please circulate and share this information with your email lists, neighbors and friends.  

This has been a long and arduous journey as most court battles are.  However, once you review the document attached, you will know why it is critically important that we continue to prevail in this legal challenge against the County of Marin.  In this document, MCA attorney Michael Graf outlines systematic and multiple layers of failures in how the county implemented adverse and far reaching land use laws which have significant potential and actual consequences to the lives of Marin citizens and beyond.

The brief was expertly and brilliantly crafted by Michael Graf.  Please read it.  For any person who did not understand our lawsuit or the esoteric nature of planning decisions that the county made, Attorney Graf's brief was written in a way for the average layman to understand what the county has done and the consequences of those actions.  At a minimum all should read its introduction and conclusion and then its table of contents for areas that are pertinent to you.

Some important excerpts from brief:

On Zoning change:  as you may recall many opposed the change which was done illegally with no notices to public. Note the dates.  Public, staff, and the county all argued about the zoning change in 2013 when the deed was already done in 2012. 

To implement this approach, on January 24, 2012 the County amended its zoning code to allow affordable housing to be established at the “maximum Marin Countywide Plan density range” in any area that allowed residential uses. See AR-19-1146 (referring to County Code § 22.24.020(A)). The County also exempted affordable housing projects from master plan and precise development plan requirements. Id. § 22.44.035; AR 19 E1143.

Subsequently, on November 13, 2012, the County amended the CWP (Policy CD-1.3) to exempt affordable housing projects from the requirements that developments be limited to the minimum density on lands with sensitive habitat, within the Ridge and Upland Greenbelt [RUG] or the Baylands Corridor, or lacking water or sewer systems. AR-28-F2922. 

On SEIR: we argued about its merits in 2013, and it was a supporting document to the Housing Element. Opponents argued that these 49 HE sites are potential sites and once the housing element was certified, it would not be of concern to its citizens.  It was just a planning exercise…

The 2012 HE present and future housing inventories ostensibly reviewed in SEIR will confer legal entitlements to housing projects at the stated densities. Appeal Brief P.87.

What this means is that when you wake up and see another Win Cup rising next to your neighborhood( all 49 HE sites) you will have no legal authority to stop it from happening.  We hope that the MCA lawsuit will permanently vacate SEIR so Marin citizens will have a voice to say that they do not want another Win Cup like fiasco in their neighborhood.

Lastly, this lawsuit that benefits us all, still costs money.  MCA needs to raise just over $10,000 to cover legal fees and cost of the lawsuit appeal.  Please donate what you can.  Thank You!


The County Moves to Vacate MCA Victory


Dear MCA Supporters,

BREAKING 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.

So much for Kinsey’s “we just have to do a little traffic study” quote. If this decision is such a little deal, why is the county asking the judge to legally void his decision? 

Either the county is trying to exhaust us OR there is more to our suit--and the FSEIR being set aside--than they like. 

The county is claiming the citizens of Marin did not “exhaust the record,” meaning that we the people did not express our concerns in the right way and that we should have hired experts to make our comments legitimate.

We believe that the SEIR approved in the 2013 Housing Element is the foundational document granting huge development rights to as many as 49 land sites within Marin County that a developer wants to build on. That SEIR is a flawed document, found by the Court to be non-compliant with CEQA. 

The very flawed studies in the SEIR is the reason MCA sued the county. By inadequately “studying” all the sites in a cursory way, the county paved the way, literally, for major and massive development, without the protection of CEQA. As projects come forward, developers can argue that traffic, water, parking, schools and other impacts have all been already studied.

MCA Attorney Michael Graf is now doing additional work to answer the county’s Motion to Vacate and to argue to uphold the Court’s decision that the SEIR must be set aside. 

Once again we are relying on your generosity to help keep this case alive and moving forward to protect Marin.

Please support MCA. So much is riding on this lawsuit. 

Donate here.

Donations are not tax deductible but are necessary for the preservation of Marin.

What Marin Community Alliance Victory Means to Marin

IJ and County Spin MCA Result

Yes, our victory was narrowly defined. And yes, Steve Kinsey, County Counsel and the IJ dismissed it as minor and easily dealt with—is anyone surprised at that? Were we expecting differently from the IJ or the county? 

MCA Victory

We asked the court to set aside the FSEIR for further review or throw it out altogether. However narrowly defined, the FSEIR, for now, is set aside. This FSEIR is the foundation for both the old and the new Housing Element. It is what developers are waiting to be nailed down before they come forward with their massive projects for these 49 areas that the county has pre-defined as being ripe for high density housing. 

The ruling states that the County will need to do a traffic study, which they will narrowly define, but we believe it will also be subject to Public Hearings. We all know these hearings are theater, but it is another opportunity in the political arena and in an election year cycle, to make the points that need to be made about the county’s headlong rush into overbuilding.  As they ignore cumulative impacts by dealing with projects on a “case by case basis” like we are now seeing at St. Vincent’s/Silveira and Grady, the county is pushing for 30+ units/acre and disregarding impacts on schools, traffic and the environment.

Why You Should Care about Lucas Valley

The traffic study may concentrate only on the impacts to Lucas Valley Road of the many projects being planned or waiting in the wings. If you think this only concerns Lucas Valley, or if you think that putting all these projects into this one area is going to protect your area, we fear you are missing the point. Traffic in one given area affects all of Marin. More importantly, every project that goes through without addressing the local conditions becomes another nail in the coffin for every other area. Every time we write off one set of residents who are voicing legitimate concerns about high-density development, we risk losing everyone’s rights, which are eroding daily. 

DeathStar comes to Lucas Valley

George Lucas is proposing 224 units of housing with a multiplex building 60 foot tall with huge underground parking garage! This is bigger than Wincup. What are the consequences of locating such a huge project far up the road where residents will have to drive, further clogging 101 when they do? This project, if allowed to build in a remote area as pristine as Lucas valley, sets a dangerous precedence for the entire county.

Next Steps:

We will keep you posted on the MCA lawsuit and share information as we can and hope you will continue your efforts. Our rallying cry now is “Not just Lucas Valley: Marin wants County-Wide Traffic Study” as the meaningful study we need done.

Highlights from April 29th, 2015 Trial.

On April 29th morning, Attorney Michael Graf (for Plaintiff MCA) and David Zaltsman (for Respondent County of Marin) appeared before Marin County Superior Court Judge Roy Chernus to present oral arguments and responses to the Court’s specific questions of the Tentative Ruling(See MCA home page). The Court Hearing, which lasted nearly two hours, was well attended by members of the public.  At the conclusion, Judge Chernus announced that the Court would render its Decision at a future date.

A Court Decision will be available sometime within thin the next 90 days of the hearing.


Michael Graf expertly answered Honorable Judge Chernus’ questions and gave compelling argument in support of this lawsuit, which is outlined in his Opening Brief and Reply Brief (posted MCA home page).

I was particularly amused by the animated debate David Zaltsman gave on two points.   First, he suggested that MCA conceded our claim against the county’s up zoning of 5000+ acres.  We did not.  This highlights though one of many egregious actions of the county and particularly the board of supervisors (BOS) in certifying their Countywide Plan (CWP) Amendment of 2012.  This amendment up zoned over 5000 acres of land all over Marin without proper notice nor CEQA review.  The county called it a “technical correction” but it was a most egregious and illegal action by the BOS to approve it.  Citizens should REMEMBER that when they go to the ballot box next time they vote.

Second, he said citizens of Marin should be grateful George Lucas is building affordable housing in Grady Ranch, soon after he conceded that the maximum units studied under the master plan for the George Lucas Film Complex was only 40 not 240 units.  Grady Ranch was never studied for 240 residential units in the CWP Environmental Impact Report (EIR), which they tiered off for the Housing Element Supplemental EIR.  Thus one of the reasons MCA challenged the validity of the BOS certified SEIR.  If you recall the judge’s tentative ruling, this issue was the only question Mr. Zaltsman was asked.

Mr. Zaltsman himself singled out George Lucas, one citizen out of 260,750 Marin residents affected by the actions of the county, as someone Marin should be grateful for?

Michael Graf files reply to the County's Opposition Brief

Last Friday, January 16th,  the MCA Attorney Michael Graf filed the attached Reply Brief , clearly asserting the reasons why the Court should issue a writ of mandate to set aside the county SEIR for 49 designated sites totaling over 2,500 new units in various Marin communities.  The County’s SEIR will affect Marin's land use, character and the environment long into the future-- and it should be set aside since it is flawed and non-compliant with CEQA; Excerpts:
This is a substantial expansion from the level and location of dense housing analyzed in
the CWP EIR, which instead assumed 658 units of HOD housing in a smaller range of locations.
Only six of the 49 housing locations reviewed in the SEIR were even part of the CWP HOD sites
reviewed in the CWP EIR.
 Importantly, the certification of the SEIR for the County’s approval of the 49 sites considered
as part of the Housing Element inventory remains valid and in effect, regardless of whether or not a particular parcel remains as a current part of the inventory. In future years, as Housing Element
inventories change over time, the SEIR’s continued existence represents a future CEQA pass whether that parcel is plugged back into the inventory or not.--page 11
The County’s arguments ignore how the Housing Element may cause environmental impacts--page 14
The record shows that the County went out of its way in this case to identify ….many more units that were actually necessary for the County to meet its housing requirements. In doing so, the County produced a flawed EIR…. Because the SEIR does not meet CEQA standards, it should be set aside.
page 2
The case will now proceed to Court on February 13th 2015

Marin Voice: Challenging Marin's 'metropolitan' housing quotas


Marin Voice

By Sharon Rushton
Guest op-ed column

NOVATO has deservedly received many accolades for its recently adopted Housing Element, its plan for meeting state regional housing quotas.

Most notably, the city listened to local residents and worked diligently to lower the minimum density requirement for affordable housing sites identified in its Housing Element from 30 units per acre to 20-23 units per acre.

Learning about Novato's success, residents of unincorporated Marin, who are greatly dismayed with the county's Housing Element, can't help but wonder: If Novato officials can push back against urban-like high-density housing, then why can't the Board of Supervisors? Does the county have fewer resources and less capability than the city of Novato?

In light of how aghast Marin residents are about the enormity of the apartment complex at the former WinCup site in Corte Madera and the strong countywide repulsion to high-density development, one would think that unincorporated Marin would have taken Novato's approach with its Housing Element.

Amazingly, county planners and supervisors ignored constituents' protests and did the exact opposite.

When choosing sites for the county Housing Element's Available Land Inventory (a list of sites to accommodate unincorporated Marin's need for housing in the 2007-14 cycle), the county sought out sites zoned at 30 dwelling units per acre, thus locking these sites into inappropriate high densities) and up-zoned other sites to the same density (30 units per acre) by establishing an "Affordable Housing Combining District."

Other county Housing Element programs further increased the potential scale of housing by raising the allowable height for multi-family residential development and reducing parking requirements.

Worse still, a state density bonus can easily increase a residential density of 30 units per ace to 40 units per acre, equal to the WinCup apartment complex's density!

So, many of the county Housing Element sites could become additional "WinCups."

County supervisors and planners gave the impression that the county Housing Element must, with no exception, identify housing sites with minimum densities of 30 units per acre, equal to the county's assigned density. They further alluded that this requirement could only be eliminated if the default density were lowered by a law like Assemblyman Mark Levine's proposed AB 1537, which would lower Marin's default density from a "Metropolitan" density of 30 units per acre to a "Suburban" density of 20 units per acre.

However, this is not the case.

Another option with probable lower minimum densities has been available to the county all along.

This other option is described in a memorandum from the state Department of Housing and Community Development.

As illustrated by what Novato was able to achieve with its Housing Element, the department states that using a default density is voluntary.

According to the state, a Housing Element may identify housing sites with lower density levels, as long as it provides an analysis demonstrating how the adopted densities can accommodate the jurisdiction's housing need for all income levels, including lower-income households.

Using a default density is a streamlined option for a local government to meet the density requirement if the government doesn't want to provide its own analysis.

Residents can't help but be perplexed. Why in the world would the county planners and supervisors simply use the default density of 30 units per acre for sites identified in Marin County's Housing Element, when such an objectionable high density could have been avoided?

So again we ask: If Novato officials can push back against requirements for urban densities, then why can't the Board of Supervisors?

Does Marin County have fewer resources and less capability than the city of Novato?

Or, contrary to residents' wishes, do our supervisors prefer high-density housing?

Sharon Rushton is a resident of the Almonte neighborhood of Mill Valley and chairperson of Sustainable TamAlmonte, an organization focused on preserving the area's semi-rural quality of life.

Editorial: Strawberry change was about a fair process

Marin IJ Article

Marin Independent Journal Editorial

SUPERVISOR KATE SEARS is not the first local politician to change her mind amid political heat over the state's "priority development area" designations.

In fact, few neighborhoods in Marin likely would volunteer for the label.

The county already has backtracked from PDA designations in Marinwood and in Tam Valley. The San Rafael City Council dropped its plans for a PDA in Terra Linda. An earlier proposal that San Quentin State Prison be designated for a 2,000-resident PDA was scuttled by supervisors.

On Tuesday, supervisors voted 5-0 to remove Strawberry as a Marin PDA.

By dropping the designations, the county and city are turning their backs on state transportation funding for such "smart growth" opportunities where jurisdictions plan housing near transit corridors instead of encouraging sprawl.

Exactly how much money Marin is refusing is debatable, but it should not be ignored that those regional bodies with their hands on the funding spigot are the leading proponents of PDAs.

After months of pressure from Strawberry residents, Sears finally agreed to reconsider the label.

What worries residents about PDAs is that they see them as undermining a time-tested open and public planning process. They are worried that development is being expedited or "fast-tracked" at the expense of reasonable deliberations in the name of "smart growth."

It is up to local leaders to provide iron-clad assurances that every project will receive full public review, a full environmental review and no special procedural short-cuts.

County officials failed to convince local residents that the designation would not undermine thorough local review. That is a breach in public communication and trust that needs to be repaired. The process for establishing PDAs was more bureaucratic than organic; more top-down than community driven.

Strawberry leaders' complaints that they lack effective representation is troubling when Strawberry residents serve on the county Planning Commission as well as on a special task force that has reviewed county planning procedures.

That doesn't mean a good project that stands the test of public scrutiny for meeting local needs won't be approved and built.

Both neighbors and property owners deserve to be treated fairly.

For instance, the Golden Gate Baptist Theological Seminary deserves a fair chance to make its case for redeveloping its student and faculty housing. Much of it was designed when its needs were different.

Today, the campus has a growing need for family housing rather than dorms for single students.

At the same time, the 70-year-old campus has a longstanding symbiotic relationship with the community. Continuing its role as a good neighbor should be part of plans for its 148-acre campus.

Residents also need to be concerned about keeping the seminary a viable neighbor, recognizing the seminary's changing needs.

Those factors remain with or without a PDA label on Strawberry.

Changing labels does little to alter what eventually will happen on that campus. Nor does it lessen Marin's need for complementary, well-designed and right-sized affordable housing.

Marin Voice: Marin County's housing plan should be done right

Marin IJ OP Ed


By Kevin T. Haroff
Guest op-ed column

Posted:   11/23/2013 05:52:00 PM PST

Kevin Haroff, Larkspur City Council. (IJ photo/Frankie Frost) Frankie Frost

THE IJ's Nov. 12 editorial, "Marin Housing lawsuit is not going to change state laws," painted a misleading portrait of the reasons why a local citizens' group, the Marin Community Alliance, recently filed a legal challenge to the Board of Supervisors' Sept. 24 approval of a new Housing Element for the Marin Countywide General Plan.

MCA did not bring this action in order to change state housing laws.

Our group understands that the county must meet obligations Sacramento has imposed on local jurisdictions to implement regional mandates encouraging affordable housing and transportation-oriented development.

We do share concerns expressed by others over the manner in which these regional mandates have been developed by the Association of Bay Area Governments and the Metropolitan Transportation Commission.

But challenging those mandates is not what our lawsuit is all about.

Our goal is simply to ensure that the county meets its housing-related obligations in a manner that also respects its larger duty to consider the consequences of its actions under the state's cornerstone environmental protection statute, the California Environmental Protection Act.

We believe the county failed to do that when it approved the new General Plan Housing Element.

The county's efforts to short-circuit the requirements of CEQA brought objections from a wide range of groups and interests during the public hearings the county conducted as part of its approval process.

Those objections focused on a wide range of issues, from the abbreviated nature of the environmental review the county conducted, to its reliance on information from earlier documents that are now substantially out of date, to its failure to address the potentially significant environmental impacts that will be caused by the high-density development projects that the Housing Element is designed to promote.

Unfortunately, these objections fell largely on deaf ears, with legitimate public concerns generally ignored, discounted or brushed aside.

As a result, the Housing Element the county has now adopted is fundamentally flawed and should not be used as the basis for planning decisions that could dramatically change the character of our community.

MCA believes that Marin County deserves a housing plan that does not circumvent existing policies and procedures; that uses accurate data as a foundation for making informed decisions; and that ensures the financial and environmental impacts of any site-selection process will be distributed in a fair and balanced way — honoring and in alignment with the county's greater interests.

Hopefully, our lawsuit will lay the groundwork for the future adoption of a plan that accomplishes all of those goals.

Kevin T. Haroff of Greenbrae is a lawyer for Marin Community Alliance. On Nov. 5, he was elected to the Larkspur City Council.


Marin residents stand in rain to protest high-density housing developments

Pouring rain on Friday didn't stop about 55 Marin residents from gathering in front of the Tamal Vista Apartments in Corte Madera to protest high-density development in the county.

Armed with cowbells and signs that said "Keep Marin Liveable" and "We Love Marin, Nobody Loves This," protesters said they don't want to see more buildings emerge in the county similar to the 180-unit apartment complex at the former WinCup site.

Six apartment buildings are being built on the 4.5-acre site near Highway 101, representing a development that is 40 units per acre — a figure that elicits anger from opponents who consider it unacceptable high-density housing.


Dozens of protesters stand in the rain in front of the apartment complex under construction at the former WinCup site in Corte Madera, Calif. on Friday, Feb. 7, 2014. (Alan Dep/Marin Independent Journal) Alan Dep

"We are stunned this was approved," said Richard Willis of Corte Madera. "I think the size of this development is grotesquely too big for this site and for local infrastructure."

Tony Campodonico of Kentfield agreed. He said the Tamal Vista Apartments will overtax the area's services and roads, leading to more traffic congestion.

"I'm concerned this development has set a precedent that's very unnerving," Campodonico said.

As Campodonico suggested, it's not just the apartment complex in Corte Madera that has people riled up. It's a whole array of issues including the county's housing element, a priority development area in Strawberry, a Sonoma-Marin Area Rail Transit station area plan in Larkspur, population growth estimates from the Association of Bay Area Governments, and Plan Bay Area — a strategy designed to place most of the Bay Area's housing growth along traffic corridors, near mass transit and jobs.

Protesters are worried these various plans will build massive, crowded housing complexes that will degrade Marin's small-town character. They worry the buildings will lead to more traffic, degrade air quality, place a demand on already crowded schools and strain water and sewer systems.

Citizen Marin co-founder Susan Kirsch, a Mill Valley resident, said she and others were led to believe developments such as the Tamal Vista Apartments were needed to provide affordable housing, yet only 10 percent of the site's apartments will be designated for low- and moderate-income residents.

Two Cents 02/08/14

Is the WinCup development too big?

Total Votes = 467


 89.50 %


 10.49 %

"I'm concerned about the way affordability and housing have been woven together like a carrot on a stick," Kirsch said. "It's an utter embarrassment Corte Madera found a way to approve this."

Many of the protesters are concerned about possible future development in Larkspur, as outlined in the city's draft SMART station area plan. The draft plan outlines all of the land-use policies and plans for multi-modal transportation within the station area, which encompasses about a half-mile radius around the proposed SMART station near Highway 101 and the Marin Country Mart.


Dozens of protesters stand in the rain in front of the apartment complex under construction at the former WinCup site in Corte Madera, Calif. on Friday, Feb. 7, 2014. (Alan Dep/Marin Independent Journal) Alan Dep

What has people concerned is the fact that the draft plan identifies seven possible sites for development in the station area, including 77,500 square feet of retail space, 60,000 square feet of hotel space, 39,500 square feet of office space and a maximum of 920 dwelling units. There's no guarantee any of the buildings or houses would be built, but many Marin residents are scared.

Richard Hall, a San Rafael resident, said people are still learning about all the development plans in the works and many of them are horrified to learn the plans don't follow residents' slow-growth mantra.

"This is what people are waking up to and discovering is happening next door to them," Hall said, adding that he considers developments of 20 units per acre to be high-density complexes. "People feel like they're not being heard."

As part of the concerns surrounding housing issues, an effort is afoot to challenge the recently approved Marin County housing element, which ensures there's enough land set aside to develop an adequate amount of new housing to meet state growth projections. It identifies 17 sites where developments of 30 units per acre will be permitted for affordable housing.

The Marin Community Alliance, an unincorporated nonprofit association of Marin residents, filed a lawsuit against the county in October, stating the housing element doesn't comply with the requirements of the California Environmental Quality Act and promotes future high-density residential development.

"People are not happy with the housing element," Hall said.

On Tuesday night, the Marinwood Community Services District Board of Directors plans to address the housing element issue by possibly adopting a resolution in support of the Marin Community Alliance's lawsuit. The proposed resolution states any tax-exempt affordable housing developments built in Marinwood would contribute to the district's budget deficit.

Board member Justin Kai, who was elected in November alongside two others on the platform of opposing high-density housing, said the district can't financially support the lawsuit effort, so its members are considering the next best thing.

"We're concerned about how the housing element will affect our district," Kai said.

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