Marin judge rules against county in housing power struggle

Judge Sheila Shah Lichtblau ordered officials to remove wording in the countywide plan that gives it precedence over 22 community plans.

Marin officials must remove wording in the countywide plan that gives it precedence over the 22 community plans in the county, a judge has ruled.

Marin Superior Court Judge Sheila Shah Lichtblau ordered the county to complete the change by mid-August. The order was contained in a March 25 ruling in response to a lawsuit filed by Bruce Corcoran, a Strawberry resident.

“I’m very grateful that the judge ruled in our favor,” Corcoran said, “because my whole intent here was to preserve the authority and integrity of community plans.”

“It vindicates what I was trying to show, that the county can’t just wave a wand and override community plans the way they did it,” he said.

Nevertheless, responding to the decision in an email, County Counsel Brian Washington wrote, “While the ruling contains disappointing aspects, we see it as generally affirming the county’s approach to coordinating the housing element with the county’s general plan.”

“We are reviewing the decision and will discuss it with the Board of Supervisors at an upcoming closed session,” he said.

Other county officials declined to comment on the ruling.

Corcoran filed his suit after supervisors made changes in Marin’s countywide plan that subordinated community plans so that the countywide plan would conform with a new housing element.

The county had to submit the housing element to the Department of Housing and Community Development for its approval as part of its state mandate to accommodate at least 3,569 new residences in unincorporated areas by 2031.

The supervisors unanimously approved the housing element and alterations to the countywide plan on Jan. 24, 2023, despite the fact that the Marin County Planning Commission recommended against doing so.

“Concern over the issue raised in the Corcoran lawsuit was one of several reasons the majority of the Planning Commission decided to not recommend approval of the housing element to the Board of Supervisors last year,” said Don Dickenson, a planning commissioner.

Prior to the changes, the countywide plan specified that in cases where the countywide plan and community plans differed, the plan with the more specific language would take precedence. The countywide plan was amended, however, to state that “for residential and mixed-use projects where there are land use designation or development density and floor area differences, the countywide plan shall prevail.”

In calling for the changes, county planners said Marin faced new requirements for its housing element to “affirmatively further fair housing,” which requires active steps to racially integrate communities. They asserted that some of the language in the community plans conflicted with this goal.

However, Lichtblau’s decision says that “many of the precedence clauses go beyond providing specific guidance to community plans to comply with the county’s statutory requirement to provide goals and policies to affirmatively further fair housing.”

“The court finds that these precedence clauses apply to all inconsistencies, known and unknown, those which arose out of attempts to develop more housing and those that did not,” Lichtblau wrote. “This is improper.”

There was a significant amount of opposition in the community to the diminished importance of the community plans. Sharon Rushton, the president of Sustainable TamAlmonte, who died recently, gathered more than 1,500 signatures on an online petition.

Andrea Montalbano, who was a planning commissioner at the time, was one of the more vocal critics of the move.

In his suit, Corcoran recounted how Montalbano emailed the acting county planning director on Dec. 31, 2022, alerting the director that the proposed text amendments relating to community plans were “contrary to long standing law that a general plan be internally consistent.”

“I tried my best to warn them that this is problematic,” Montalbano said Tuesday. “I would really like to know how much money was wasted because they wouldn’t listen to me and other people who pointed out the futility of it.”

Riley Hurd, a land-use attorney, said at the time that he was “a bit perplexed about the need for the countywide plan amendments at all.”

“Particularly because there is no longer any guidance on how to resolve disparities between the countywide plan and community plans on issues that don’t involve floor area ratios, density or land-use designations,” he said.

Montalbano sought reappointment to the commission when her term ended in June, but county supervisors chose not to even include her among the group of candidates who were interviewed.

Corcoran said he has no idea how the county will go about complying with the judge’s order or whether the ruling will affect its ability to approve pending building applications.

“The county has a mess on its hands,” he said.

On April 16, the Board of Supervisors is scheduled to consider approving changes to the county’s development code that are designed to implement policies in the housing element.

The most consequential modification would eliminate a provision that properties “with sensitive habitat or within the ridge and upland greenbelt or baylands corridor, and properties that lack public water or sewer systems, shall be calculated at the lowest end of the density range.”

In his lawsuit, Corcoran states that “most if not all’’ of the county’s community plans limit the height, floor area ratio and density of development in baylands, ridge and upland greenbelt corridors.

“The county is racing forward to adopt amendments to the development code, which in turn would be inconsistent because they were proceeding on the basis that the countywide plan and the housing element override community plans,” Corcoran said. “But now you have conflicts between the countywide plan and the development code they’re proposing.”

On Wednesday, Corcoran filed a new motion with the court asking Lichtblau to add another remedy to her decision prohibiting the county “from relying on precedence clauses to adopt zoning amendments that conflict with community plans.”

Montalbano says there is a simple solution to the county’s problem: remove the precedence clauses and replace them with a statement that where community plans conflict with state law, state law prevails. She noted that this was the approach that Hurd suggested at the time the supervisors adopted the precedence clauses.

“It will be very interesting to see if they choose that simple solution,” Montalbano said, “because if they don’t, we know that they are trying to find ways to circumvent the community plans’ directives in ways that accomplishes something more than state law.”