Marin supervisors revise housing policy to meet court order

Unwilling to challenge an edict from the state housing department, Marin County supervisors have approved changes to the countywide plan related to new residential development.

Changes to the countywide plan became necessary last year after a Marin Superior Court judge ruled the county must remove wording it added to its housing element that allows the countywide plan to trump community plans. The ruling came in response to a lawsuit filed by Strawberry resident Bruce Corcoran.

The judge, Sheila Shah Lichtblau, ordered the county to remove “precedence clauses” that planners inserted into the countywide plan to show the state the housing element was “affirmatively furthering” fair housing. The county faces a March 12 deadline to comply.

Corcoran let the county know prior to its meeting Tuesday that he objected to the proposal to make additional changes beyond removing the precedence clauses. Supervisors received 64 emails and letters from Marin residents supporting Corcoran’s position.

In an email following the meeting, Corcoran wrote, “The Board of Supervisors, which is the elected body of Marin County, forfeits its rightful authority when it does not push back against even the most unnecessary and superfluous language demanded by unelected bureaucrats at HCD. The electorate expects our supervisors to know where to draw the line instead of always acquiescing.” HCD is the California Department of Housing and Community Development.

Over the last year, the Marin County Community Development Agency and the Planning Commission clashed over how the county should respond to Lichtblau’s order.

In September, the commission rejected the Community Development Agency’s proposal to add new wording to the housing element to accomplish much the same objective that the precedence clauses were designed to achieve. The commission instead sent a recommendation to county supervisors that they stick to the court’s order and simply remove the precedence clauses.

Supervisors discussed the issue at a meeting on Oct. 29, but they failed to reach a decision and sent it back to the Planning Commission for additional review. At a meeting in December, the commission came up with a compromise proposal that incorporated some suggestions from Corcoran, but this proposal retained a number of specifications mandated by the state to which Corcoran objected.

In a Feb. 25 email, Corcoran warned supervisors that if they approved this proposal, they would be courting “another lawsuit.”

At the December meeting, the Planning Commission directed the Community Development Agency to submit the proposal to the state housing department for comment and asked the agency to report back to it prior to submitting a new recommendation to supervisors.

The housing department, however, waited until Feb. 24 to notify the county the proposal wouldn’t do. That left no time for a meeting with the Planning Commission.

“If adopted, the revised draft amendment will negatively impact Housing and Community Development’s prior finding of substantial compliance,” Paul McDougall, a program manager at the department, wrote in a letter that arrived on Monday.

In other words, McDougall was threatening to decertify the county’s housing element.

Jurisdictions lacking a certified housing element in California could lose eligibility for certain state funding and face lawsuits from private developers, and they are precluded from using zoning or general plan standards to reject any housing project that meets certain affordability requirements. They can also face stiff fines from the state.

In his letter, however, McDougall added that the county’s certification would be safe if it added specific language to two sections of the housing element.

One involved the county’s commitment to conduct yearly “outreach to developers and property owners to promote multi-unit housing opportunities, with the goal of creating 800 units of multi-unit housing.”

McDougall wrote that the county should add that as part of its outreach to “identify constraints and opportunities and make changes as necessary to facilitate multi-unit housing in areas of affluence.”

The other addition related to a requirement that beginning this year, the county “make appropriate revisions to remove discriminatory language and policies.”

McDougall specified the addition “including but not limited to, addressing constraints to multifamily development and promoting housing choice and affordability in higher resource areas.”

Speaking at Tuesday’s meeting, Corcoran didn’t object to either of these additions but focused his attention on a passage that stated that the countywide plan would prevail “for residential and mixed use projects where there are land use designations or development density and floor area ratio differences.”

Instead of simply removing this precedence clause, county planners altered the sentence to state that in such cases, differences between the countywide plan and community plans would be weighed and balanced “within applicable requirements of applicable state law.”

“This is the primary remaining sticking point,” Corcoran said Tuesday. “Land use designations and development densities and floor area ratios are community plan standards. Standards cannot be arbitrarily overridden because the arbiter feels in the moment that some other issue is more important.”

Speaking after Corcoran, Laraine Woitke, a resident of the unincorporated Green Point area of Novato, said, “Let me remind you that Green Point rallied and turned out hundreds of its residents in public meetings to secure its community plan.”

“I’ve talked to many of my neighbors. We want our plan enforced,” Woitke said. “We will join this petition to strike down the existing housing element if it does not comply with the court order.”

In their closing remarks, supervisors said they had done their best to broker a reasonable compromise.

“In my household, when one kid wants cereal for breakfast and the other one wants oatmeal for breakfast, sometimes we end up making pancakes,” said Supervisor Eric Lucan.

Of the supervisors’ decision, Lucan said, “It’s not oatmeal, and it’s not cereal, but it’s pancakes.”