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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
______________________________________
FIRST APPELLATE DISTRICT, DIVISION ONE
_____________________________
APPELLANTS’ OPENING BRIEF______________________________
MARIN COMMUNITY ALLIANCE, an unincorporated association, and
MEEHYUN KIM KURTZMAN, an individual
Plaintiffs/Appellants/Cross-Appellees,
vs.
COUNTY OF MARIN
Defendant/Appellee/Cross-Appellant
________________________________________________________________________
____
APPELLATE NO. A146168
Marin County Superior Court Case No. CIV 1304393
Judge: Roy Chernus
____________________________________________
Michael W. Graf (SB No. 136172)
Law Offices
227 Behrens Street
El Cerrito, California 94530
Tel: (510) 525-1208
Counsel for Plaintiffs/Appellants/Cross-Appellees
TABLE OF CONTENTS
Page
I. INTRODUCTION AND SUMMARY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. RULE 8.204(a)(2) STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IV. LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. THE HOUSING ELEMENT IN THE GENERAL PLAN... . . . . . . . . . . . . 7
1. Requirements for Housing Element.. . . . . . . . . . . . . . . . . . . . . . . . . 8
a. Establishment of Regional Housing Needs Allocation.. . . . . 8
b. Required Components of Housing Element.. . . . . . . . . . . . . . 9
2. Housing Inventory Requirement.. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
a. Legislative Restrictions on Agency’s Discretion to Regulate
the Density of Housing Element Inventory.. . . . . . . . . . . . . 11
B. REVIEW OF PLANNING DECISIONS UNDER THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (“CEQA”).. . . . . . . . . . . . . . . . . . 12
V. FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. COUNTY’S 2003 HOUSING ELEMENT AND SUBSEQUENT
ADOPTION OF A NEW COUNTYWIDE PLAN IN 2007.. . . . . . . . . . . 13
1. 2007 Countywide Plan’s Direction for Locating Residential Housing
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
a. CWP Addresses Locations of Dense Housing Through
Establishment of Housing Overlay Designation.. . . . . . . . . 15
b. Housing Chapter Establishes Aspirational Goals for
Affordable Housing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
c. Relationship Between 2007 CWP, the 2003 Housing Element,
i
the HOD and the County’s Obligation to Meet Regional
Housing Needs Allocation.. . . . . . . . . . . . . . . . . . . . . . . . . . 18
2. 2007 Countywide Plan EIR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
a. Impact Analysis of Full Buildout.. . . . . . . . . . . . . . . . . . . . . 19
b. Impact Analysis for HOD Designations in CWP.. . . . . . . . . 20
B. ADOPTION OF 2012 HOUSING ELEMENT.. . . . . . . . . . . . . . . . . . . . . 21
1. Zoning and CWP Amendments to Implement Housing Element
Direction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2. Adoption of 2012 Housing Element With Supplemental EIR.. . . . 24
3. 2012 Housing Element.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4. 2012 Housing Element Supplemental EIR.. . . . . . . . . . . . . . . . . . . 28
5. Marin Public Frustrated by Housing Element Review.. . . . . . . . . . 30
C. PROCEDURAL HISTORY OF LITIGATION.. . . . . . . . . . . . . . . . . . . . . 32
VI. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A. AGENCY’S FAILURE TO PROCEED ACCORDING TO LAW.. . . . . . 34
B. COURT MUST TAKE A HARD LOOK TO DETERMINE IF
SUBSTANTIAL EVIDENCE SUPPORTS THE SEIR OR THE
COUNTY’S FINDINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
C. REVIEW STANDARD FOR WHETHER THE 2012 HE FALLS WITHIN
THE SCOPE OF THE CWP EIR’S CEQA REVIEW.. . . . . . . . . . . . . . . . 35
1. Questions Regarding the Proper Scope of CEQA Review are Matters
of Law to be Determined by the Court.. . . . . . . . . . . . . . . . . . . . . . 38
2. Even if the Court were to Follow Mani Brothers in this Instance, the
County Has Committed Procedural Errors in Determining that
CEQA Guideline Section 15162 Applies. . . . . . . . . . . . . . . . . . . . . 41
ii
3. Even Under a Substantial Evidence Test, the County Has Still
Abused its Discretion... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
VII. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
A. THE COUNTY FAILED TO PROCEED ACCORDING TO LAW WHEN
IT BASED ITS CEQA ANALYSIS OF THE 2012 HOUSING ELEMENT
ON A SIMPLE COMPARISON TO THE ESTIMATED IMPACTS OF
BUILDOUT IN THE CWP EIR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. The 2012 HE is a ‘Project’ Reviewable Under CEQA. . . . . . . . . . 46
a. Government Code § 65583 Requires the County to Adopt an
Inventory of Planned Locations and Action Program for
Meeting its Housing Obligations.. . . . . . . . . . . . . . . . . . . . . 47
b. The Designation of Housing Inventory Locations Confers
Legal Rights Affecting the Pattern of Future Development in
the County... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
c. The County’s CEQA Review of 49 Site Locations As a
Means to Implement the 2012 HE Policies to Streamline
Review for Future Dense Housing Projects Also Confers
Legal Rights ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
2. The 2012 HE Does Not Fall ‘Within the Scope’ of the CWP Project
that Was Covered by the CWP Programmatic EIR. . . . . . . . . . . . . 55
a. Program EIRs and Tiering Under CEQA.. . . . . . . . . . . . . . . 55
b. Issue is Whether the CEQA Review of the 2012 HE Was
“Within the Scope” of the CWP EIR.. . . . . . . . . . . . . . . . . . 56
c. The SEIR Analysis for the 2012 HE Does Not Fall Within the
Scope of the CWP Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . 57
(1) The 2012 Housing Inventory Identification and CEQA
Review of 49 Specific Sites Does not Fall within the
Scope of the CWP EIR’s Analysis of General Plan Buildout.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
iii
(a) CWP EIR’s Buildout Analysis is at a Lower Tier of
Review as That Required for the Housing Element
Inventory.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
(b) Buildout Numbers Relied on in CWP EIR Were
Inflated.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
(2) The 2012 Housing Inventory and CEQA Review of 49
Specific Sites Also Does not Fall Within the Scope of
the CWP EIR’s Analysis of the CWP’s Housing
Overlay Designation.. . . . . . . . . . . . . . . . . . . . . . . . . 65
(a) The Housing Inventory Sites Comprise Many
More Units and Sites than the HOD Analyzed in
the CWP EIR. . . . . . . . . . . . . . . . . . . . . . . . . . 65
(b) The 2012 HE Housing Inventory Sites are Not
Limited by the Criteria Found Necessary by the
CWP EIR to Avoid Significant Impacts. . . . . 67
3. The 2012 Housing Element Implements CWP Policies and Thus
Must Have its Own Review Under CEQA.. . . . . . . . . . . . . . . . . . . 70
4. The County’s Reliance on the CWP EIR’s Alternatives Analysis for
its CEQA Review for the Project is Improper.. . . . . . . . . . . . . . . . . 71
5. This Court’s Decision in City of Napa is Distinguishable... . . . . . . 75
B. THE COUNTY FAILED TO PROCEED ACCORDING TO LAW IN
ASSESSING CUMULATIVE IMPACTS OF THE PROJECT.. . . . . . . . 79
1. SEIR’s ‘Cumulative Context’ Approach Violates CEQA... . . . . . . 79
2. The SEIR Also Violated the CEQA Rule that Non-De Minimus
Incremental Project Impacts that Add to an Existing Significant
Impact Are Cumulatively Significant.. . . . . . . . . . . . . . . . . . . . . . . 81
a. Traffic Analysis Example.. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
b. Traffic Analysis Shows that 2012 HE Will have Significant
Cumulative Traffic Impacts.. . . . . . . . . . . . . . . . . . . . . . . . . 82
iv
c. Impacts on Other Resource Categories.. . . . . . . . . . . . . . . . 83
3. The SEIR Failed to Consider the Potential Cumulative Impacts of the
2012 HE on Different Resource Issues.. . . . . . . . . . . . . . . . . . . . . . 84
a. Traffic Impacts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
b. Impacts From Locating HE Parcels in Floodzones.. . . . . . . 86
c. Impacts Caused by School Overcrowding.. . . . . . . . . . . . . . 87
d. Impacts to Aesthetics.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
e. Impacts to Biological Resources. . . . . . . . . . . . . . . . . . . . . . 91
f. Impacts to Geology and Soils.. . . . . . . . . . . . . . . . . . . . . . . . 91
C. THE PROJECT COULD HAVE SIGNIFICANT IMPACTS ON COUNTY
LAND USE AND PLANNING THAT WERE NOT ANALYZED IN THE
SEIR. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
D. THE COUNTY’S STATEMENT OF OVERRIDING CONSIDERATIONS
ON THE IMPACTS OF THE PROJECT IS CONTRARY TO CEQA. . . 94
E. THE DETERMINATION OF WHERE AND HOW TO LOCATE DENSE
HOUSING IN THE COUNTY IS AN IMPORTANT PLANNING
DECISION THAT SHOULD BE DONE ACCORDING TO APPLICABLE
LAW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
VIII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
v
TABLE OF AUTHORITIES
Page
Cases
Association of Irritated Residents v. County of Madera
(2003) 107 Cal. App. 4th 1383. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Black Property Owners Assn. v. City of Berkeley
(1994) 22 Cal.App.4th 974, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 46
Center for Biological Diversity v. Department of Fish & Wildlife
(2015) 62 Cal. 4th 204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Center for Sierra Nevada Conservation v. County of El Dorado
(2012) 202 Cal.App.4th 1156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 62, 70
Chawanakee Unified School Dist. v. County of Madera
(2011) 196 Cal. App. 4th 1016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Communities For a Better Environment v. California Resources Agency
(2002) 103 Cal. App. 4th 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 82, 84, 95, 96
Communities for a Better Environment v. City of Richmond
(2010) 184 Cal.App.4th 70, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
County of Amador v El Dorado County Water Agency
(1999) 76 Cal. App. 4th 931. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Environmental Planning & Information Council v. County of El Dorado
(1982) 131 Cal. App.3d 350. . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 35, 41, 44, 62, 64
Federation of Hillside & Canyon Associations v. City of Los Angeles
(2000) 83 Cal. App. 4th 1252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 95
Fonseca v. City of Gilroy
(2007) 148 Cal. App. 4 1174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10, 47, 48th
Friends of Aviara v. City of Carlsbad
(2012) 210 Cal. App. 4th 1103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Friends of Mammoth v. Board of Supervisors
(1972) 8 Cal.3d 247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 39
vi
Friends of the Eel River v. Sonoma County Water Agency
(2003) 108 Cal. App.4th 859. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fullerton Joint Union High School Dist. v. State Bd. of Education
(1982) 32 Cal.3d 779. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Kings County Farm Bureau v. City of Hanford
(1990) 221 Cal. App. 3d 692. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Koster v. County of San Joaquin
(1996) 47 Cal. App. 4th 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 60
Latinos Unidos de Napa v. City of Napa
(2013) 221 Cal.App.4th 192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-38, 76-78
Los Angeles Unified School Dist. v. City of Los Angeles
(1997) 58 Cal. App. 4th 1019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 33, 35, 71
Laurel Heights Improvement Assn. v. Regents of University of California
(1993) 6 Cal.4th 1112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Los Angeles Unified School Dist. v. City of Los Angeles
(1997) 58 Cal. App. 4th 1019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Mani Brothers Real Estate Group v. City of Los Angeles
(2007) 153 Cal.App.4th 1385. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 39-41
Neighbors for Smart Rail v. Exposition Metro Line Construction Authority
(2013) 57 Cal. 4th 439. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Pocket Protectors v. City of Sacramento
(2004) 124 Cal.App.4th 903. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Save Our Neighborhood v. Lishman
(2006) 140 Cal.App.4th 1288. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37
Save Our Peninsula Committee v. Monterey County Bd. of Supervisors
(2001) 87 Cal.App.4th 99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
vii
Sierra Club v. Board of Supervisors
(1981) 126 Cal. App. 3d 698. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Sierra Club v. State Bd. of Forestry
(1994) 7 Cal. 4th 1215. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Stanislaus Natural Heritage Project v. County of Stanislaus
(1996) 48 Cal. App. 4th 182. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal.4th 412,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34, 41, 42
Statutes
Govt. Code § 65301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Govt. Code § 65302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Govt. Code § 65302(a). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Govt. Code § 65580(a)-(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Govt. Code § 65583 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Govt. Code § 65583(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 48
Govt. Code § 65583(a)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10, 11, 44, 47, 48, 50, 51
Govt. Code § 65583(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Govt. Code § 65583(c). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 49, 58
Govt. Code § 65583(c)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Govt. Code § 65583(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 54
Govt. Code § 65583.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Govt. Code § 65583.2(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Govt. Code § 65583.2(c)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Govt. Code § 65583.2(c)(B)(iv).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Govt. Code § 65583.2(h)-(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Govt Code § 65584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Govt. Code § 65884(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Govt. Code § 65884(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Govt Code § 65588. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Govt. Code § 65863(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 26, 45, 47, 50
Govt. Code § 65995(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Pub. Res. Code § 21000(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Pub. Res. Code § 21002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 71, 95
Pub. Res. Code § 21061. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pub. Res. Code § 21065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
viii
Pub. Res. Code § 21065(a); . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pub. Res. Code § 21068.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Pub. Res. Code § 21080. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Pub. Res. Code § 21080(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pub. Res. Code § 21093. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Pub. Res. Code § 21093(a); . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 60
Pub. Res. Code § 21094 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Pub. Res. Code § 21100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pub. Res. Code § 21151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pub. Res. Code § 21166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 39-41
Pub. Res. Code § 21168.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Regulations
14 Cal. Code Regs. § 15003(b)-(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14 Cal. Code Regs. § 15152.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 56
14 Cal. Code Regs. § 15152(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 60
14 Cal. Code Regs. § 15162.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 36 37, 38, 44
14 Cal. Code Regs. § 15163.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 36
14 Cal. Code Regs. § 15168(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 56
14 Cal. Code Regs. § 15168(b.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14 Cal. Code Regs. § 15168(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
14 Cal. Code Regs. § 15168(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
14 Cal. Code Regs. § 15168(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 36, 52, 55, 57
14 Cal. Code Regs. § 15358(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 92
14 Cal. Code Regs. § 15384.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
14 Cal. Code Regs. § 15378(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14 Cal. Code Regs, § 15126(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Miscellaneous
County Code § 22.24.020(A)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
County Code § 22.44.035. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ix
I. INTRODUCTION AND SUMMARY
This case addresses the County’s attempt to comply with the state law
requirements regulating housing elements in a general plan.
In 2003, the County adopted a new Housing Element for its existing
1994 general plan, which consisted for the most part of aspirational policies
for developing adequate housing in the region.
In 2007, the County adopted its Countywide Plan Update (“CWP”).
The CWP summarized the 2003 Housing Element policies in a housing
chapter, but only addressed the housing issue substantively in its Land Use
Element, which established a Housing Overlay Designation (“HOD”)
consisting of 658 units at densities of 30 units per acre.
The County prepared an Environmental Impact Report (“EIR”) for the
CWP, which analyzed the environmental effects at two levels 1) general
maximum buildout; and 2) buildout of HOD parcels. Assessing these together,
based on future population estimates in the year 2030, the CWP EIR identified
42 cumulatively significant and unavoidable impacts that would occur.
In 2009, the County began the process of updating its Housing Element.
After 2004 changes in state law had created new planning requirements for
cities and counties to ensure adequate housing. These changes included the
County’s obligation to establish a ‘housing inventory’ of units that would be
1
expected to function as the high density housing necessary to satisfy the
County’s regional allocation mandated by state law. See Govt. Code §
65583(a)(3). The housing inventory law was intended to tighten state law
requirements to ensure the availability of housing for all income groups. See
Fonseca v. City of Gilroy (2007) 148 Cal. App. 4 1174, 1197-1199. th
In 2010, the California Department of Housing and Community
Development ("HCD”) informed the County that its proposed locations to
meet the housing inventory requirements did not contain the proper zoning to
ensure high density development and on that basis rejected the County’s
submission. Frustrated, the Board of Supervisors directed staff and consultants
to come up with a list of potential housing inventory sites for the present and
future housing element cycles out to the year 2022. The Board also directed
staff to complete environmental review under the California Environmental
Quality Act (“CEQA’) of all these sites in order to ensure a streamlined
administrative approval process for later projects as they came forward.
In response, County staff and consultants completed the 2012 Housing
Element (“2012 HE”) as well as a Supplemental EIR (“SEIR”) for the project.
The SEIR purported to analyze the cumulative environmental impacts of
designating present and future Housing Element inventory at 49 different
locations encompassing 2,537 dwelling units in the unincorporated part of the
2
County. The SEIR found that development of these units, at the stated
locations and densities, would have no significant cumulative effects on the
environment and local communities of Marin County.
Petitioners challenge this finding of the SEIR as contrary to CEQA.
Here, the SEIR’s conclusion that the 2012 HE and its designated parcels for
development will not have any significant impacts is based on a flawed legal
theory, that the SEIR need not analyze the actual impacts of such development
– i.e., the impacts on the existing physical environment in relation to traffic,
schools, flood hazards, public services, sensitive habitats etc. – but may instead
simply tier to the CWP EIR, which, as discussed, identified 42 cumulatively
significant and unavoidable impacts that would be caused by the theoretical
maximum buildout on residential parcels pursuant to the County’s zoning.
This approach is contrary to settled CEQA principles that an agency
cannot compare the impacts of a proposed project to a general plan’s
theoretical buildout numbers that may in reality never occur. See
Environmental Planning & Information Council v. County of El Dorado
(1982) 131 Cal. App.3d 350, 357-358. Here, the SEIR’s reliance on the broad,
generalized findings of the CWP EIR conceal a host of potential – and
unanalyzed – potential impacts of the 2012 HE. Indeed, the SEIR is nothing
more than a checklist, comparing project impacts to those addressed in the
3
CWP EIR document as part of a legally flawed “cumulative context.”
The SEIR’s reliance on the CWP EIR precludes meaningful evaluation
of the impacts of the County’s choices as to how and where to locate future
dense affordable housing in the County, decisions that were never ‘within the
scope’ of the analysis conducted by the CWP EIR, a programmatic review
document under CEQA. See 14 Cal. Code Regs. § 15168(c)(2). Indeed, to the
extent the CWP EIR did address the issue of where and how to locate dense
and affordable housing in the County, that occurred in its discussion of
potential HOD sites. However, only six of the 49 sites purportedly analyzed
at high densities in the SEIR were ever considered as HOD sites by the CWP
EIR. Further, to avoid significant land use impacts, the CWP EIR adopted
specific mitigation limiting the number and locations of HOD sites based on
restrictive criteria designed to protect resources, yet the 2012 HE dispensed
with these criteria in its selection of sites for future development inventory.
Meanwhile, during the public review of the housing element, the County
implemented zoning code and CWP amendments without CEQA review that
have the potential to change land use development patterns in ways that were
never considered in the CWP EIR.
In this case, what may appear as harmless planning decisions and
documents actually have the potential for substantial impacts down the road
4
by streamlining future development at the densities designated and analyzed
in the certified SEIR. Here, inclusion of a site in a Housing Element at a
specific density confers rights on developers to build at that minimum density.
See Govt. Code § 65863(b). Further, the County’s certification allows
developers to rely on the SEIR as a programmatic CEQA document to which
the environmental review of future development may be tiered, on over 2,500
housing units within a wide berth of designated Marin communities.
The record shows that the County went out of its way in this case to
identify and complete CEQA review for many more units than were actually
necessary for the County to meet its state law housing requirements. In trying
to bank CEQA credits in this way, the County produced a flawed EIR, which
nonetheless now stands as a tierable legal document purporting to finding that
development of the 2012 HE inventory will not be cumulatively significant.
Because the SEIR does not meet CEQA standards, it should be set aside
II. RULE 8.204(a)(2) STATEMENT
Appellants’ appeal challenges Respondent County of Marin’s adoption
of a 2012 Housing Element and certification of a Supplemental Environmental
Impact Report (“SEIR”) based on violations of CEQA.
The trial court issued its final “Judgment Granting Petition for Writ of
Mandate” on June 9, 2015. See Clerk's Transcript on Appeal ("CTA"), pp.
5
341-387. On June 25, 2015, Respondent moved to Set Aside and Vacate the
Judgment pursuant to Code of Civil Procedure §§ 663 & 663a. The trial court
denied Respondents’ Motion on August 10, 2015. See CTA, pp. 443-444.
Appellants appealed the Judgment on September 8, 2015. CTA, pp. 449-450.
Respondent filed its cross appeal on September 23, 2015. CTA, pp. 503-504.
III. ISSUES PRESENTED
1. Whether the County’s adoption of the 2102 Housing Element
identifying specific locations for future high density development is a CEQA
‘project’ whose environmental impacts must be assessed regardless of whether
the Housing Element also changes the Countywide Plan’s Land Use Element?
2. Whether the County’s decision to assess the impacts of its Housing
Element and inventory designating specific minimum residential unit densities
for 49 sites totaling 2,537 dwelling units by comparing those impacts to the
prior CWP EIR’s analysis of full buildout in the County was contrary to CEQA
law as set forth in Environmental Planning & Information Council v. County
of El Dorado, supra, 131 Cal. App.3d 350 at 357-358?
3. Whether the County’s adoption of the 2012 HE may be considered to
be "within the scope" of the CWP EIR pursuant to CEQA Guidelines §
15168(c)(2) where the population figures used in the CWP EIR’s analysis were
no longer considered as reliable indicators of future growth or development?
6
4. Whether the 2012 HE may be considered to be "within the scope" of the
CWP EIR where the Housing Element’s past and future housing inventory
greatly exceeds the future dense development patterns evaluated in the CWP
EIR as part of the CWP’s Housing Overlay Designation (“HOD.”)
5. Whether the 2012 HE may be considered to be "within the scope" of the
CWP EIR where the Housing Element inventory for future dense development
in the County conflicts with the CWP Policy CD-2.3's criteria for HOD
housing evaluated in the CWP EIR?
6. Whether the County’s assumption that non-de minimis incremental
increases in actual significant impacts do not constitute significant cumulative
effects based on a comparison to the prior CWP EIR buildout analysis is
contrary to CEQA, as set forth in Communities For a Better Environment v.
California Resources Agency (2002) 103 Cal. App. 4th 98, 117-118, 124.
IV. LEGAL BACKGROUND
A. THE HOUSING ELEMENT IN THE GENERAL PLAN.
The general plan is the central tool used by local governments in
California to manage the potential for population growth and land use
development under the state's Planning and Zoning Law. Gov. Code § 65000
et seq. General plans must include mandatory planning elements including a
“Housing Element.” Gov. Code §§ 65301-65302.
7
1. Requirements for Housing Element.
Government Code §§ 65580-65589.8 set forth requirements governing
the preparation of a Housing Element. The "availability of housing is of vital
statewide importance” and thus regional housing needs must be addressed in
light of "economic, environmental, and fiscal factors and community goals."
Govt. Code § 65580(a)-(b). Under Government Code § 65588, local
governments must review and revise adopted housing elements on a regular
basis to assure their effectiveness in achieving the state's housing goals.
a. Establishment of Regional Housing Needs Allocation.
To establish the amount of housing required, Government Code §
65584 requires the California Department of Housing and Community
Development ("HCD”) and the Association of Bay Area Governments
(“ABAG”) to jointly determine an agency’s existing and projected housing
needs over specified time periods, which is called the Regional Housing Need
Allocation (“RHNA"). The RHNA shall include not just the total amount of
housing needed, but also specific allocations for “persons of all income
levels,” Govt. Code § 65884(a)(1), including “units for low and very-low
income housing.” Id., § 65884(d)(1).
Housing elements must be certified to be in compliance with the RHNA
and other state law requirements in order for the local governments to be
8
eligible for certain state and federal housing and transportation funds. To
receive certification, local governments must submit a draft of any new or
revised housing element to the HDC for its review prior to adoption, which
may be certified by HDC through the issuance of written findings.
b. Required Components of a Housing Element.
Government Code § 65583 prescribes the required components of a
Housing Element of a general plan. These include:
! an assessment of housing needs and an inventory of resources and
constraints. Gov. Code § 65583(a).
! an inventory of sites suitable for residential development and analysis
of the zoning, public facilities, and services available. Gov. Code §
65583(a)(3).
! a statement of the community's goals, quantified objectives, and
policies relative to the maintenance, preservation, improvement, and
development of housing, Gov. Code § 65583(b).
! a five-year program to implement the policies and achieve the goals
and objectives of the housing element through the administration of
land use and development controls, the provision of regulatory
concessions and incentives and other financing and subsidy programs.
Gov. Code § 65583(c).
See Fonseca v. City of Gilroy, supra, 148 Cal.App.4th at 1182-1183.
The local agency must identify actions it will take to make sites
available with appropriate zoning and development standards and with services
and facilities to accommodate that portion of the city's or county's share of the
regional housing need for each income level. Govt. Code § 65583(c)(1).
9
2. Housing Inventory Requirement.
The housing inventory requirements for Housing Elements set forth in
Government Code § 65583(a)(3) were part of the 2004 state law amendments
to the Government Code intended to ensure cities and counties planned for and
created adequate housing to meet the RHNA. See Fonseca v. City of Gilroy,
supra, 148 Cal. App. 4 at 1197-1199. Under the new law, the inventory mustth
include the specific parcels, the applicable zoning, as well as a general
description of “any environmental constraints to the development of housing
within the jurisdiction” and of the “planned water, sewer, and other dry
utilities supply, including the availability and access to distribution facilities,”
which information need not be identified on a site-specific basis. See Govt.
Code § 65583.2(b). Based on this information, the agency “shall determine
whether each site in the inventory can accommodate some portion of its share
of the regional housing need by income level during the planning period."
Govt. Code § 65583.2(c). As to the lower income housing component of the
inventory, the agency must either 1) establish that the minimum zoning density
for the parcels meets the statutory requirements, defined as at least 30 units
per acre for ‘metropolitan counties,’ see Govt. Code § 65583.2(c)(B)(iv), or
2) provide a feasibility analysis of how lower income housing will be
provided, based on market demand, financial feasibility and residential project
10
experience. Govt. Code § 65583.2(c)(A).
a. Legislative Restrictions on Agency’s Discretion to
Regulate the Density of Housing Element Inventory.
An agency’s housing inventory required by Government Code §
65583(a)(3) is a critical planning tool that may be relied upon both by County
officials and developers to identify where dense development will occur.
For example, once a parcel is presented as accommodating high density
development as part of a Housing Element inventory under Government Code
§ 65583(a)(3), a local agency may not permit the reduction of such residential
density below that which was utilized by HCD in determining compliance with
housing element law, unless the agency makes written findings supported by
substantial evidence that (1) the reduction is consistent with the adopted
general plan, including the housing element; and (2) the remaining sites
identified in the housing element are adequate to accommodate the
jurisdiction's share of the regional housing need. See Govt. Code § 65863(b).
The Government Code also places restrictions on an agency’s ability
to limit the density of residential housing development in the event the agency
has not fulfilled its regional housing allocation as part of its housing inventory
prepared pursuant to Section 65583(a)(3). For example, where the housing
inventory is found to be inadequate to meet the agency’s RHNA for affordable
housing projects, any such projects must be permitted “by right,” meaning that
11
the agency’s review of the project “may not require a conditional use permit,
planned unit development permit, or other discretionary local government
review or approval that would constitute a ‘project’” requiring any CEQA
review. See Govt. Code § 65583.2(h)-(i); AR-186-8016 (“[L]ocal government
review must not require...discretionary review.”)
B. REVIEW OF PLANNING DECISIONS UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”).
CEQA applies to discretionary projects of a public agency. Pub. Res.
Code §§ 21065; 21080. Courts must interpret CEQA to afford the fullest
protection to the environment, see Friends of Mammoth v. Board of
Supervisors (1972) 8 Cal.3d 247, 259-260, to fulfill CEQA’s policy that all
public agencies “shall regulate such activities so that major consideration is
given to preventing environmental damage.” Laurel Heights Improvement
Assn. v. Regents of University of California (“Laurel Heights”) (1988) 47
Cal.3d 376, 390; Pub. Res. Code § 21000(g.)
Where an agency action has the potential for significant environmental
impacts, an EIR must be prepared. See e.g., Pub. Res. Code § 21100. An EIR
is "an informational document" whose purpose "is to provide public agencies
and the public in general with detailed information about the effect which a
proposed project is likely to have on the environment; to list ways in which the
significant effects of such a project might be minimized; and to indicate
12
alternatives to such a project." Pub. Res. Code § 21061; 14 Cal. Code Reg.§
15003(b)-(e). Laurel Heights, supra, 47 Cal.3d at 391.1
A CEQA "project" includes the whole of an action which has a
potential for resulting in a physical change in the environment, directly or
ultimately. Pub. Res. Code § 21065(a); 14 Cal. Code Regs.§ 15378(a). The
adoption and amendment of general plan elements – including a Housing
Element – is a “project” within the meaning of CEQA. See e.g., Black
Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 985.2
V. FACTUAL BACKGROUND
A. COUNTY’S 2003 HOUSING ELEMENT AND SUBSEQUENT
ADOPTION OF A NEW COUNTYWIDE PLAN IN 2007.
The County adopted a Housing Element in 2003 (“2003 Housing
Element”), see Administrative Record, Index Line 49, page A-2824
(Hereinafter “AR-49-A2824), which addressed a planning period from 19993
The “primary means” by which the legislative goals of CEQA are achieved1
is the preparation of an EIR. Laurel Heights, supra, 47 Cal.3d at 392; Pub.
Res. Code §§21080(d), 21100, 21151. The EIR has been described as “an
environmental ‘alarm bell’ whose purpose is to alert the public and its
responsible officials to environmental changes before they have reached
ecological points of no return.” Laurel Heights, supra, 47 Cal.3d at 392.
Further information on Programmatic EIRs and tiering under CEQA is2
presented in Section VII.A.2.a-b, pp. 55-57, infra.
Excerpts from the 2007 CWP Administrative Record are included in the3
Record for the 2012 Housing Element, beginning at line 36 of the AR Index.
The draft EIR for the 2007 Countywide Plan is located at line 49 of the AR
13
through 2007. Following adoption of the 2003 Housing Element, the County
began the process of updating the 1994 General Plan. Id.
As part of the general plan update process, the County prepared a
programmatic EIR, which identified 42 significant cumulative impacts that
would occur based on an analysis of full buildout at maximum densities on all
County lands eligible for residential zoning. See id., A2876. To reduce some
of these impacts, the County chose to adopt Mitigated Alternative 4 as the final
Countywide Plan (hereinafter “CWP”). See AR-011-C62 (CEQA Findings.)
The CWP was approved in November 2007, see AR-26-F2185-F2851,
along with the programmatic EIR (hereinafter “CWP EIR”). 4
1. 2007 Countywide Plan’s Direction for Locating Residential
Housing.
The CWP establishes land use densities and policies in its Community
Development chapter. These sections comprise the “Land Use Element”5
required under state law. See AR-26-2209; Govt. Code § 65302(a).
The CWP establishes residential development categories across a full
spectrum of population densities, ranging from single family residential
index and goes from pages A-02801 (cited as A2801) to A-03671. A separate
CD containing all documents in the 2007 CWP AR was lodged with the Court.
The FEIR for the CWP is at AR-41-A210-A1085. The Draft EIR is at AR 49-4
A2801-A3671.
The CWP Community Development chapter is at AR-26-2400-2447.5
14
development (on lands designated “Very Low Density Residential” and
“Rural/Residential”) where “public services are limited” or “where physical
hazards and/or natural resources may restrict development” to multi-family
development allowing 11 to 45 units per acre. AR-26-F2215.
The CWP does not amend the 2003 Housing Element, but does
summarize its policies in the CWP chapter on “Housing.” See AR-26-F2501.
a. CWP Addresses Locations of Dense Housing Through
Establishment of Housing Overlay Designation.
The CWP Housing chapter provides no information about future
locations or patterns of high density housing. See AR-26-F2500-F2533.
Instead, the location of higher density housing in the County is addressed by
the CWP in Community Development Policy CD-2.3, which establishes a
Housing Overlay Designation (“HOD”), as follows:
The Housing Overlay Designation (HOD) is established, as shown on
Maps 3-2a and 3-2b. The purpose of the HOD is to encourage
construction of units to meet the need for workforce housing, especially
for very low and low income households, and for special needs
housing, in the City- Centered Corridor close to transit, employment,
and/or public services.
See CWP Policy CD-2.3, AR-26-F2408. To ensure affordability, the CWP
requires that all HOD units be at densities at least 25-30 units per acre. AR-26-
15
F2413. Policy CD-2.3 establishes criteria for HOD sites, including:6
! Designated by the [CWP] as Multifamily (MF), General Commercial
(GC), Neighborhood Commercial (NC), Office Commercial (OC),
Recreation Commercial (RC), or Public Facility (PF).
! Located within the unincorporated portion of the City-Centered
Corridor, one-half mile of a transit node or route with daily, regularly
scheduled service; and one mile of a medical facility, library, post
office, or commercial center.
! The area to be developed does not exceed an average 20% slope and
is not within the Ridge and Upland Greenbelt; is not within a Wetlands
Conservation Area or Streamside Conservation Area; is not a park or
public open space area; and is not primarily located within the 100-year
flood plain.
Id. at 2408-2409. 7
Originally, the draft CWP allocated 1,694 units to the HOD, through the
establishment of a Housing Bank, which would ‘bank’ housing credits
transferred from West Marin and other sensitive parcels, for redistribution into
the city-centered corridors. See AR49-A1290 (“Exhibit 3.0-7, Units transferred
The Community Development chapter establishes land use densities for the6
following residential land use categories: Very Low Density; Rural
Residential; Low Density Residential; Low to Medium Density Residential;
and Medium to High Density Residential. See id. at 2429-2432. Among these
categories, only the medium and high density residential allow for densities
above four dwelling units (DU) per acre. See id. at 2432.
The CWP identifies other polices to protect the environment, while also7
providing the needed housing for the County’s lower income residents. See id.
at 2410 (describing policies Policy CD-2.5, 2.6 and 2.8.)
16
to Housing Bank.”) As a result of the CWP EIR’s cumulative impact8
analysis, the 1,694 HOD units were eventually reduced down to 658 in the
final CWP. See id. at F2409-2410 (Figure 3-3); at F2851(A)-(C) (Maps 3-2a-
c); at F2412 (Implementation Measure CD-2.d. to allocate HOD units.)
b. Housing Chapter Establishes Aspirational Goals for
Affordable Housing.
In contrast to the CWP Community Development chapter, the CWP
Housing chapter does not provide specific direction on housing density or the
location of multi-family housing in the County, but instead simply restates the
existing policies of the 2003 Housing Element, including:
! HS-3.11 - Establish land use arrangements and densities that
facilitate efficient public transit systems and provide incentives for
housing developments within an easy walking distance of transit stops,
where reduced automobile use and parking requirements are possible.
! HS-3.18 Designate Affordable Housing Sites...identify housing
opportunity areas and sites where a special effort will be made through
incentives and other means to provide affordable housing.
See id., A2906 (“The 1,694 housing units in the Housing Bank would result8
from Policy CD-L3 and Program CD-Lc, which would establish potential
residential density and commercial Floor Area Ratio (FAR) at the low end of
the applicable range on sites with sensitive habitat or within the Ridge and
Upland Greenbelt, the Baylands Corridor, or properties lacking public water
or sewer systems.”) Eventually the Housing Bank concept was scrapped in
favor of Policy CD-2.3's creation of specific numbers of units on HOD sites.
See AR-12-C62 (“The Housing Bank was proposed to facilitate allocation of
housing units to specific areas ...However, this goal was achieved through
adoption of Policy CD-2.3, Establish a Housing Overlay Designation, through
which sites within the HOD are assigned caps for housing unit allocations.”)
17
Id. at 2511-2512. The Housing chapter’s implementation programs relating
to the establishment of affordable housing are also undefined and aspirational:
! HS-3.e - Apply CEQA Exemptions and Expedited Review.. seek
opportunities for infill development within urbanized areas consistent
with local general plan and zoning requirements that can be
categorically exempt from CEQA review
! HS-3.s - Conduct a Detailed Affordable Housing Sites Feasibility
Study assessing feasibility, planning, environmental review, appropriate
zoning and site characteristics
! HS-3.v - Evaluate Feasibility of an “Affordable Housing Overlay
Designation” that lists particular sites on which residential densities
will be substantially increased if a specified level of affordability is
achieved.
Id. at F2511-F2512.
c. Relationship Between 2007 CWP, the 2003 Housing
Element, the HOD and the County’s Obligation to
Meet Regional Housing Needs Allocation.
A central purpose of the CWP’s HOD is to fulfill the aspirational goals
of the 2003 Housing Element to provide for affordable housing:
The policies and programs in the Countywide Plan build upon the
existing state-certified housing element... The Project is consistent with
the County's certified Housing Element and meets the affordable
housing goals and requirements of the County by establishing a
Housing Overlay Designation (HOD).
AR-12-C144 (emphases added.) The CWP thus envisioned that as part of the
next update of the 2003 Housing Element, the County would “[a]nalyze
additional HOD sites.” AR-26-F2415 (Implementation Measure CD-2.l.)
18
2. 2007 Countywide Plan EIR.
The CWP EIR is a program EIR, which evaluates the environmental
impacts of the CWP at a broad level, based on the predicted effects of9
buildout throughout the County, while also addressing the more specific
impacts regarding development of HOD sites. See AR-49-A2906-A2912.
a. Impact Analysis of Full Buildout.
To assess the environmental impacts of housing development
“buildout” the CWP EIR compares the existing number of units to a projected
full buildout of “development which could occur if land vacant in 2005 were
fully developed according to the zoning designations in the Draft 2005 CWP
Update.” See AR-49-A2904. The EIR makes the assumption that this full
‘buildout’ would occur by 2030. To calculate buildout, the CWP assumes a
2006 population baseline of 69,239 for unincorporated Marin County, out of
a total of 253,341 for the entire County, and a future projected 2030 population
of 283,100, with 76,400 persons projected to reside in the unincorporated area.
AR-49-A2905. Based on these figures, the CWP assumes an increase of 5,391
units in the unincorporated part of Marin between the years 2005 to 2030, out
A program EIR "may be prepared on a series of actions that can be9
characterized as one large project and are related...in connection with the
issuance of rules, regulations, plans, or other general criteria to govern the
conduct of a continuing program." 14 Cal. Code Regs. § 15168(a)(3).
19
of a total County wide increase of 13,853 units. Id. at A2905. Using these
buildout figures, the CWP EIR identifies 42 significant and unavoidable
cumulative impacts that will occur. See e.g. AR-49-A2868-A2871, A2876. 10
b. Impact Analysis for HOD Designations in CWP.
The CWP EIR assesses the impacts of the Housing Overlay Designation
(“HOD”) as originally proposed at 1,694 units. See AR-49-A2876. The EIR
identifies locations for these units as part of the CWP’s project description. See
AR-49-A2906-A2912. Impacts of the HOD locations are then analyzed
extensively in the CWP EIR, leading to the conclusion that “some of the11
Housing Overlay Designation sites included in the Draft 2005 CWP Update
would be inconsistent with proposed criteria in Policy CD-2.3 and would
result in land use conflicts.” AR-49-A2876. (emphasis added.) The CWP EIR
A few of these significant impacts were avoided in the subsequent approval10
process by the adoption of mitigation measures. For the rest, the Board
adopted a statement of overriding considerations pursuant to Public Resources
Code § 21081(a)(2). See AR-12-C065-119, C141-142.
The EIR analyzes the cumulative effects of developing these HODs –11
separately from the buildout analysis described above – in each of the resource
areas including “land use, population and housing,” see AR-49-A3010-3011,
“transportation” see AR-49-A3048-3052, A3059, A3075-A3081, “hydrology,
water quality and flood hazards,“ see AR-49-A3149, A3152-A3519, A165-
A3166, A3176, A3180, 3185 and, “biological resources,” AR-49-A3211,
A3221, A3226, A3232, “geology,” AR-49-A3251, A3263, A3265. For other
resources such as water (AR-49-A3383), fire risk (AR-49-A3477) or visual
aesthetics (AR 3520), the EIR assumes that the creation of 1,694 HOD units
away from sensitive hill or wet areas, near a designated transport hub, will be
environmentally beneficial. See also AR-A2906.
20
identifies this as a significant cumulative impact. AR-12-C0121; 49-A2828. 12
To reduce this impact to insignificance, the CWP EIR proposes
Mitigation Measure 4.1.5, which requires that individual HOD parcels that do
not meet the HOD criteria “be removed from further consideration.” AR-12-
C0122; 49-A3011. The CEQA findings state that Measure 4.1-5 “would
reduce physical impacts due to inconsistency with the recommended criteria
to a less-than-significant level.” See AR 12 C121-122. The CWP EIR included
Measure 4.1-5 as part of its Mitigated Alternative 4, which was ultimately
adopted by the Board as the final CWP. AR 12-C121-122, 139; AR-49-A-
03587-3590. In so doing, the County rejected other alternatives as having13
greater impacts than those of mitigated Alternative 4. See AR 12 C140-141.
B. ADOPTION OF 2012 HOUSING ELEMENT.
In November 2009 the County submitted a draft Housing Element to the
HCD, which, however, found the low density zoning on the majority of sites
not to meet the statutory standards required to facilitate affordable housing
See 14 Cal. Code Regs. § 15358(a)(2) (”Indirect or secondary effects may12
include ...effects related to induced changes in the pattern of land use,
population density, or growth rate, and related effects on air and water and
other natural systems, including ecosystems.”) (emphasis added.)
Mitigation Measure 4.1.5 reduced the number of HOD units in the CWP13
from 1,763 down to 758 units, see AR 49 A-3588, a figure later changed in the
CWP to 658 units. See AR 26 2408. See AR 49 A-3589-3591; AR 26 2409
(showing distribution of 658 HOD units in the CWP EIR and CWP). See also
AR 26 F2851A-B (land use maps showing HOD locations.)
21
development. See AR-232-J8480-J8485 (January 7, 2010 Letter from HCD to
County); AR-66-I03174-03175 (County summary in staff report.)
In September 2010 the Board of Supervisors directed staff to respond
to HCD’s comments by identifying adequate housing sites for the 2007-2014
housing element cycle, as well as for the 2014-2022 planning period that might
accommodate a density of 30 units per acre to meet state requirements. AR-66-
I3175. The Board also instructed staff to conduct CEQA review that would
include an evaluation of the impacts for all the sites identified in both the
2007-2014 and 2014-2022 housing element cycles. Id. The expanded review
“would analyze units sufficient to meet the County's current shortfall in
affordable housing units and the estimated future need for additional housing
that will be allocated to the County in the next housing element cycle
(2014-2022).” See also AR-180-I7986; 370-N10583.
1. Zoning and CWP Amendments to Implement Housing
Element Direction.
To increase the potential for high density development, the County
informed HCD in 2010 of a change in policy, that affordable housing would
henceforth be exempted from zoning requirements and allowed to build up to
the maximum densities under the CWP land use designations:
[T]he County will, with the adoption of this element exempt affordable
housing from zoning in favor of the higher Countywide Plan land use
designation. .....we believe that a site based rezoning program would
22
limit the range of opportunity in the unincorporated County given the
broad range of zoning types in place. We have favored a blanket density
increase up to the maximum allowed in the Countywide Plan which has
the potential to yield many more units.
AR-231-J8477, J8479 (emphasis added.) 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. 14
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 or the Baylands Corridor, or
lacking water or sewer systems. AR-28-F2922.
The County did not conduct CEQA review for any of these actions,
despite the potential for such land use designation and zoning changes to lead
to greater development on parcels with steep slopes, ridges or sensitive
The 2012 HE identifies this zoning change as "implementing Housing14
Element program 1.d Streamline the Review of Affordable Housing” in order
to “shorten the costly pre-development process undertaken by affordable
housing developers in order to secure approvals.” AR-19-E01143
23
habitats that would previously have been limited to minimum densities. 15
Instead, County staff represented the actions to the public as “minor technical
changes” to the County Code, see AR-420-P12127:8-13, ignoring the
observations of the Planning Commission that the actions in fact represented
“a major policy change......putting housing of any kind.. at higher than the
lowest range of the density allowable, is something new.....It’s a real change.
Not a technical change.” See id. at P12157:10-20.
2. Adoption of 2012 Housing Element With Supplemental EIR.
The County released a new draft of the Housing Element in December
2012, see AR 22 E1661-1871, along with a Supplemental EIR to review the
impacts of the project. See AR-17-D700-D1065.
The County determined that CEQA review for the Housing Element
could be tiered to the 2007 CWP EIR, according to which new review would
only be required where there were significant new circumstances, information
or changes to the CWP that warranted further environmental review pursuant
’These changes are consequential for large parcels such as those designated15
as Planned Residential (“PR”) in the CWP, where housing density may occur
from one unit for every 10 acres (RMP 0.1) to one unit per acre (RMP 1.) See
AR 26 F2431. Such a change means a possible 10-fold increase in the number
of units, such that a 240 acre parcel such as Grady Ranch, which includes
sensitive wetlands, ridges and steep slopes and thus had previously assumed
a limited development capacity of around 40 units, see AR-411-P11321:1-3,
15-17, may now be developed up to 240 units.
24
to Public Resources Code § 21166 and CEQA Guidelines §§ 15162-15163 (14
Cal. Code Regs. § 15162-15163). See e.g., AR-17-706-708; AR-66-I03178.
The County then determined that, while nothing in the 2012 HE itself
would require such further environmental review beyond what had already
occurred in the CWP EIR, see AR-11-C048, three new circumstances dictated
the preparation of a Supplemental EIR: 1) new flood studies and maps
showing inundation due to sea level rise; 2) new Toxic Air Contaminant
(TAC) guidelines; and 3) proximity of housing sites to groundborne vibrations
attributable to SMART trains. See AR-17-D0747-750.
Following circulation of the SEIR, the Planning Commission held two
hearings, on June 24, and July 8, 2013. The Board then held several hearings16
leading to the Board’s approval of the 2012 HE and certification of the SEIR
on September 24, 2013. See AR-8-B34-36; 9-B37-40; 11-C41-58 (Exhibit A -
CEQA Findings). In addition, the Board approved amendments to add an
Affordable Housing Combined Zoning District (“AH district”) on three HE
parcels, AR-6-B17-20 (Resolution No. 2013-85), and a CWP amendment
adding the AH district as a consistent zoning to all CWP residential land use
designations. AR-7-B-21-33 (Resolution No. 2013-84).
These hearing transcripts can be reviewed at AR-411- P11180-11363 and16
AR-412-P11364-11496.
25
3. 2012 Housing Element.
The purpose of the 2012 Housing Element is to achieve an adequate
supply of decent, safe, and affordable housing with a particular focus on the
unincorporated areas of the County. AR-19-E01072; 11-C042.
To meet the state law requirements, the 2012 HE presents an inventory
consisting of 17 sites containing 1,164 housing units. See AR-19-E01169-
1176; 11-C043. These numbers are well above the County’s Regional
Housing Needs Allocation for this period of 773 units.17
In addition, the 2012 HE contains Implementing Programs (“IP”)
designed to ensure that dense housing can be reliably developed in the future.
Such programs includes IP 1.a - Establishment of Minimum Densities on
Housing Element Sites, which prohibits the County from approving
“development on sites identified in the Housing Element with fewer units than
shown in the Site Inventory Analysis, unless physical or environmental
constraints preclude development at the minimum density and the findings in
Government Code Section 65863 can be made.” See AR 19 E01187-1192. 18
The 2012 HE identifies the RNHA needs for the County for the 2007-201417
cycle as totaling 773 units, including 183 very low income units, l37 low
income units, 169 moderate income units, and 284 above moderate income
units. See AR 19 E01165, Figure IV-4.
Government Code § 65863(b)'s restrictions on lowering housing density are18
discussed at p. 11, supra, and p. 50 infra.
26
Another implementing program is IP 1.b - Conduct a Comprehensive
Affordable Housing Sites Inventory.” See AR-19-E01188-1189. Policy 1.b
requires the County to conduct “a planning exercise to designate appropriate
sites for future housing,” including the development of a “sites inventory that
will include enough sites to meet the projected housing needs...over the next
two RHNA cycles.” AR-19-E01188 (IP 1.b.c.) (emphasis added.)
The 2012 HE states IP 1.b has already been “[c]ompleted by Housing
Element Task force and through Housing Element update,” AR-19-E01187,
note 1, which includes the County’s identification and CEQA analysis in the
SEIR of the additional sites for the 2014-2022 Housing Element cycle.19
The 2012 HE contains other IPs that are accomplished as part of the
County’s 2012 HE approval process. For example, the 2012 HE IP 1.c, to
establish an Affordable Housing Combining District (“AHCD”), has been
implemented in this case by the County’s adoption of AHCD zoning for
several parcels as part inventory, while completing CEQA review of AHCD
zoning for a number of other parcels in the future. See AR-17-D741, 744-745.
In addition, 2012 HE IP 1.d requires the County to streamline the
AR-66-I03175 (Task Force to “study sites with the potential to accommodate19
a density of 30 units per acre” and staff to “conduct environmental review.”);
AR-151-I07248 (SEIR “studies 32 additional potential housing sites that may
be considered for inclusion in the 2012 Draft Housing Element, or a future
Housing Element for the 2014 to 2022 planning period.”)
27
review for affordable housing by “making the review process more efficient
and clarifying permitted density.” The 2012 HE states that this Program has
been accomplished with the January 2012 Development Code amendments.
See AR-19-E01188, note 2. The County’s preparation of an EIR for the20
additional 49 housing inventory units at specific densities also directly
implements this measure. See AR-151-I07248 (“Inclusion of the additional
sites for the 2014 to 2022 cycle in this Draft SEIR is intended to expedite
Housing Element review and approval for this and future planning periods.”)
4. 2012 Housing Element Supplemental EIR.
The Supplemental EIR (“SEIR”) for the 2012 HE is a program EIR
under CEQA Guidelines § 15168(a)(3). AR-17-D708. The SEIR describes the
17 site locations identified for the 2007-2014 HE cycle, AR-17-D723-724, and
an additional 32 sites for the 2014-2022 cycles. See AR-17-D0737-739. The
SEIR purports to analyze the impacts of all 49 potential housing sites listed for
the 2007-2014 and 2014-2022 cycles.21
The SEIR states that the 2007-2014 cycle would add an additional
1,164 units, with 681 being affordable, see AR-17-D736, while the 2014-2022
These are discussed at pages 22-24, supra.20
See AR-17-D0708; D0736 (“[T]his SEIR includes an analysis of potential21
housing sites for the next housing element planning period - 2014 to 2022.”);
AR-11-C043. (“[T]his project identifies the potential for development of new
housing on 49 sites.”)
28
cycle would add an additional 1,373 units, with 603 being affordable. Id. at
D736-739. The SEIR also purports to evaluate the implementation of Program
1.c in the 2012 HE, which proposes to establish an Affordable Housing (AH)
Combined District that would permit 30 dwelling units per acre, totaling 1,114
units. See AR-17-D740-741 (Exhibit 2.0-16.) 22
To measure impacts, the SEIR creates an environmental checklist,
which compares the potentially significant environmental effects to the
conclusions in the 2007 Countywide Plan EIR to determine “if proposed
changes to the County’s Housing Element, changes in circumstances, or new
information require major revisions to the 2007 Countywide Plan EIR due to
new or substantially more severe significant impacts.” AR-17-747. See also
AR-17-759-760 (explaining checklist criteria).
The SEIR determines that impacts caused by the project itself,
implementation of the 2012 Housing Element and the 49 site locations
analyzed, would not result in new or substantially more severe impacts than
those described in the 2007 CWP EIR. See AR-17-D755-758; 11-C048.23
The figures for Exhibit 2.0-16 do not correspond precisely with those22
provided in the list of housing locations at D723-724 and D736-739.
The SEIR does identify three potential new significant impacts based on new23
information related to air quality, sea level rise and noise from the SMART
train, each requiring further CEQA review. See AR 17-747-750. For all but
one of these, the County identified mitigation measures to avoid the significant
impacts predicted to occur. See AR-11-C048. One impact relating to
29
Beyond the checklist, the SEIR did not conduct any analysis beyond
that conducted in the CWP EIR, except for one area, traffic. Here, the SEIR
presented an updated analysis based on more recent population information
predicting County population at a lower growth rate than that analyzed in the
2007 CWP. See AR-17-D947. The SEIR traffic analysis compares three
cumulative impact figures based on 1) the 2007 CWP EIR cumulative
projections for the year 2030; 2) the updated SEIR baseline projections for
2035 without project; and 3) the updated SEIR 2035 projections with project.
See AR 17 D955, 957-958 (Exhibits 3.0-35, 3.0-36.) The SEIR compares the
2035 ‘With Project’ predictions to the 2030 CWP EIR figures to determine
that no new significant cumulative impacts would occur. See AR-17-D959.
5. Marin Public Frustrated by Housing Element Review.
Public participation in the Housing Element update process was
vigorous, and frustrated. From the point of view of citizens, the County was
simply plowing ahead, handing out development entitlements at high densities
as a way to get from under state law obligations, without any real consideration
of the actual on-the-ground environmental impacts of locating the large
anticipating sea level rise was found to be significant and unavoidable but not
substantially more severe than the impact analyzed in the 2007 CWP EIR. Id.
30
amount of proposed housing in the sites designated. 24
A chief concern of the citizenry was that the EIR process appeared as
a charade, where questions of environmental impacts were simply shunted
aside at the same time the SEIR was acknowledged to be a document to which
future projects could legitimately tier. See e.g, AR-261-L8732-8733 (County
counsel informs public that while “we cannot define precisely what will be the
scope of any [future] CEQA review” for the inventory sites, “the ‘information’
contained in the current EIR may be used at the time of any subsequent CEQA
review if it is still current and relevant to make it more efficient.”)
The comments and testimony came mostly from citizens, making their
points in practical, on the ground terms, without exhaustive reference to
CEQA terms or standards, raising concerns about potential impacts from
See e.g, AR-261-L8723-8724 (Marin Conservation league recommends24
dropping CEQA review for additional inventory sites for 2014-2022 cycle.);
AR-261-L8817 (“[T]he SEIR in question is so deficient that the only right
answer is to start from scratch and conduct an SEIR that is based on current
reality and community participation.”); AR-265-L8892 (“The Scope of the
Program SEIR, and therefore the Scope of any Supplemental SEIR to be
required at point of application on any of the included 32 sites of the SEIR, is
not clear. In addition to the un-defined Scope of the Program SEIR, the SEIR
itself is inadequate and incomplete.”); AR-269-L8915 (“Most of the
cumulative impacts assessments do not approach cumulative impacts in an
additive or synergistic manner, but rather use this analysis to identify project
impacts as proportionally minor and therefore not significant cumulatively.”);
AR-271-8996 (“The unilateral decision-making process over Strawberry and
absence of transparency in trying to overhaul and redevelop our neighborhood
is unacceptable. “)
31
traffic, flooding, aesthetics, lack of adequate analysis etc. These include
comments that touch on all the issues raised in this proceeding. See e.g., AR-
290- L09853 (school impacts); L09854 - L09855 (aesthetics) L09857 (lack of
alternatives analysis or cumulative impact analysis) L09854 (over-allocation
of sites); AR-263-L8876-8877 (streamlining); L8879 (improper tiering);
L8879-8890 (flooding, traffic and lack of utilities); 269-L8909-8945
(comments on impacts to all resources issues, unlawful plan comparison,
failure to consider alternatives or cumulative effects); AR-276- L9006-9008;
291 L9860-9871 (Grassetti comments including unlawful plan to plan
comparison, alternatives, cumulative impacts); 292-L9893-9896 (comments
on effect of designating housing inventory under Government Code.)
C. PROCEDURAL HISTORY OF LITIGATION.
Following its approval of the Project and certification of the SEIR,
Petitioners filed their original Verified Petition for Writ of Mandate on
October 24, 2013. CTA, pp. 2-29. Following settlement discussions and the
County’s unsuccessful attempt to have Petitioners’ action dismissed on
procedural grounds, Petitioners filed their First Amended Verified Petition for
Writ of Mandate on November 24, 2014. CTA, pp. 170-189. The case was
heard before Judge Roy Chernus of Marin Superior Court, who issued a
written judgment on June 9, 2015 granting Petitioner’s Petition in part and
32
denying it in part. CTA, pp. 341-387. After resolution of the County’s25
motion to vacate the Court’s ruling, these appeals followed.26
VI. STANDARD OF REVIEW
The proper review standard for Petitioners’ traditional mandamus claim
under CEQA challenging the County’s adoption of the 2012 HE – a legislative
action –– is Public Resources Code Section 21168.5. See Laurel Heights,
supra, 47 Cal.3d at p. 392, fn. 5. Such review asks whether the agency has
abused its discretion, which occurs if (1) the agency has not proceeded in a
manner required by law; or (2) the determination is not supported by
substantial evidence. Pub. Res. Code § 21168.5; County of Amador v El
Dorado County Water Agency (1999) 76 Cal. App. 4th 931, 945-947.
To determine an abuse of discretion, a court reviews the agency's
action, not the trial court's decision. “Appellate judicial review under CEQA
is de novo." Vineyard Area Citizens for Responsible Growth, Inc. v. City of
Rancho Cordova (2007) 40 Cal.4th 412, 427.
Judge Chernus ruled in favor of Petitioner where the traffic impacts identified25
in the SEIR had actually exceeded the level of buildout traffic reviewed in the
CWP EIR. See CTA, p. 381:17-19. Overall, however, the trial court did not
accept Petitioner’s argument that the County’s total reliance on the CWP EIR
to approve the 2012 HE was contrary to CEQA. See e.g.,CTA, p. 381:13-14
(2012 HE would “not result in a significant impact on Arterials when
compared to Mitigation Alternative No. 4 analyzed in the CWP EIR.”)
See Petitioner’s Rule 8.204(a)(2) Statement, p. 6, supra.26
33
A. AGENCY’S FAILURE TO PROCEED ACCORDING TO LAW.
An agency’s failure to proceed in the manner required by CEQA is
reviewed as a failure to proceed according to law. As stated by the Supreme
Court in Vineyard Area Citizens for Responsible Growth, supra:
[A]n agency may abuse its discretion under CEQA either by failing to
proceed in the manner CEQA provides or by reaching factual
conclusions unsupported by substantial evidence... Judicial review of
these two types of error differs significantly: While we determine de
novo whether the agency has employed the correct procedures,
"scrupulously enforc[ing] all legislatively mandated CEQA
requirements"...we accord greater deference to the agency's substantive
factual conclusions.....In evaluating an EIR for CEQA compliance,
then, a reviewing court must adjust its scrutiny to the nature of the
alleged defect, depending on whether the claim is predominantly one
of improper procedure or a dispute over the facts. (emphasis added.)
40 Cal.4th at 435. See also Friends of the Eel River v. Sonoma County Water
Agency (2003) 108 Cal. App.4th 859, 881-882.
If an agency fails to proceed according to law, a court does not reach
the issue of whether there is substantial evidence to support the agency’s
decision. See e.g., Association of Irritated Residents v. County of Madera
(2003) 107 Cal. App. 4th 1383, 1391-1392 (existence of substantial evidence
is “not relevant when one is assessing a violation of the information disclosure
provisions of CEQA.”) (emphasis added.) The Court does not defer to an
agency that has failed to proceed in the manner required by law. Sierra Club
v. State Bd. of Forestry (1994) 7 Cal. 4th 1215, 1235-1236.
34
In this case, Petitioner alleges several procedural failures by the SEIR,
beginning with its abject reliance on the CWP EIR’s impact assessments of
maximum buildout instead of actual CEQA review of the 2012 HE’s impacts.
See Environmental Planning & Information Council, supra, 131 Cal. App.3d
at 357-358; Discussion pp. 55-96, infra.
B. COURT MUST TAKE A HARD LOOK TO DETERMINE IF
SUBSTANTIAL EVIDENCE SUPPORTS THE SEIR OR THE
COUNTY’S FINDINGS.
Under the “substantial evidence” standard, a court must assess whether
the SEIR’s analysis and findings are supported by meaningful evidence:
We do not suggest that a reviewing court should refrain from carefully
scrutinizing the record. We have observed in a related context that such
detailed review is necessary in light of the requirement that in
reviewing an administrative agency's determination the court "must
scrutinize the record and determine whether substantial evidence"
supports the agency's decision.... The often technical nature of
challenges to EIR's also requires particular attention to detail by a
reviewing court.
Laurel Heights, supra, 47 Cal.3d at 408 (emphasis added.)27
C. REVIEW STANDARD FOR WHETHER THE 2012 HE FALLS
WITHIN THE SCOPE OF THE CWP EIR’S CEQA REVIEW.
In proceeding to tier its CEQA findings on the 2012 HE to the 2007
Substantial evidence under CEQA is defined as "enough relevant information27
and reasonable inferences from this information that a fair argument can be
made to support a conclusion, even though other conclusions might also be
reached." 14 Cal. Code Regs. § 15384
35
CWP EIR, the County proceeded under CEQA guidelines §§ 15162-15163, see
AR-66-I03178, the laws applying to the CEQA review for projects that are
essentially the “same project” as a previously approved project, see Pub. Res.
Code § 21166; or which are “within the scope of” a project covered by a
program EIR. See 14 Cal. Code Reg. 15168(c)(2); Latinos Unidos de Napa v.
City of Napa (“City of Napa”) (2013) 221 Cal.App.4th 192, 201-202.
In this case, there is no question that the 2012 HE is not the ‘same
project’ as the 2007 CWP, a general plan update that did not even address the
County’s prior and substantially different 2003 Housing Element. Instead, the
relevant issue is whether the County proceeded properly in implicitly
determining that the 2012 HE was ‘within the scope’ of the CWP EIR.28
Currently there is a split in appellate authority on the proper review
standard to determine if an agency has proceeded correctly in utilizing Section
15162, either in determining that the subsequent project is the ‘same as’ or
‘within the scope’ of the prior project. Compare Save Our Neighborhood v.
Lishman (2006) 140 Cal.App.4th 1288, 1297 (treating question as a matter of
Petitioner has not uncovered any explanation in the SEIR or related record28
documents that explains how the County determined that CEQA Guideline §§
15162-15163 were the appropriate operative provisions for CEQA review of
the 2012 HE, as opposed to CEQA Guidelines § 15152, which applies to
projects that are not ‘within the scope’ of the prior programmatic review. The
record shows the County never really explained what it was doing here.
36
law) to Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153
Cal.App.4th 1385, 1401 (applying substantial evidence review standard.)
This issue is presented in a case currently pending before the California
Supreme Court, Friends of the College of San Mateo Gardens v. San Mateo
County Community College District, Supreme Court case No: S214061, on
review from an unpublished decision from this Court that sided with Save Our
Neighborhood v. Lishman’s view that questions about the scope of CEQA’s
application must be reviewed as matters of law, not substantial evidence. 29
In contrast, City of Napa sided with Mani Brothers in applying a
substantial evidence standard to review an agency’s decision to proceed under
CEQA Guideline § 15162. See 221 Cal.App.4th at 201-202. Petitioner does
not assume, however, that this Court was intending in City of Napa to issue
black letter law that would apply to every factual situation.
Information for this case can be found on the Supreme Court’s website at29
http://appellatecases.courtinfo.ca.gov/-search/case/mainCaseScreen.cfm?dis
t=0&doc_id=2059337&doc_no=S214061. The information provided states:
“This case presents the following issue: When a lead agency performs a
subsequent environmental review and prepares a subsequent environmental
impact report, a subsequent negative declaration, or an addendum, is the
agency's decision reviewed under a substantial evidence standard of review
(Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153
Cal.App.4th 1385), or is the agency's decision subject to a threshold
determination whether the modification of the project constitutes a ‘new
project altogether,; as a matter of law (Save our Neighborhood v. Lishman
(2006) 140 Cal.App.4th 1288)?”
37
Here, the facts are different. In City of Napa there was no indication30
the agency had failed to proceed according to CEQA in determining the
housing element update was within the scope of the prior general plan EIR.
City of Napa instead held that the general plan EIR had assessed the impacts
of the pre-existing housing element, and that the complained-of-changes to the
land use element densities had been adequately analyzed. Id. at 203-204. 31
1. Questions Regarding the Proper Scope of CEQA Review are
Matters of Law to be Determined by the Court.
There are strong policy and statutory reasons for treating an agency’s
decision about the scope of CEQA review as a matter of law and not
substantial evidence. Here, an agency's determination of whether to proceed
under CEQA Guideline § 15162 will greatly affect the scope of subsequent
CEQA review, particularly given that where an agency action is found to be
within the scope of a prior project, CEQA's purpose to ensure full
environmental review of potential impacts is trumped by an interest in finality.
See Laurel Heights Improvement Assn. v. Regents of University of California
(1993) 6 Cal.4th 1112, 1129-1130. In contrast, if a project is found not to fall
See Discussion, pp. 75-78, infra.30
City of Napa’s ruling could arguably be interpreted as a legal determination31
that the project fell within the scope of prior review. See 221 Cal.App.4th at
204 ( “no dispute” that project was a modification that had been analyzed in
the prior 1998 Program EIR.)
38
‘within the scope’ of the prior program EIR, the agency must utilize the
standard ‘fair argument’ test to determine whether further environmental
review is required. See Center for Sierra Nevada Conservation v. County of El
Dorado (2012) 202 Cal.App.4th 1156, 1173-1174 (requiring agency to treat
a general plan implementation program as a second tier project properly
evaluated under Public Resources Code § 21094 rather than § 21166.)
Given the major difference between the applicable review standards, it
is appropriate that the question of what is the appropriate scope of CEQA
review should be made by a court. See Friends of Mammoth v. Board of
Supervisors (1972) 8 Cal.3d 247, 259 (scope of CEQA "project" to be assessed
consistent with CEQA policy "to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.") 32
A close reading of Mani Brothers Real Estate Group v. City of Los
Angeles, supra, 153 Cal. App. 4th 1385, shows that court did not actually
CEQA issues that address the proper scope of review are typically reviewed32
as matters of law by the court. See e.g., Fullerton Joint Union High School
Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 794-795 (agency's
conclusion that the action in question was not a project within the meaning of
CEQA was reviewed as a matter of law); Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 928 (application of the fair argument
standard of review to determine need to do an EIR presents a question of law);
Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001)
87 Cal.App.4th 99, 118 ("[Q]uestions of ....application of the requirements of
CEQA are matters of law.")
39
consider the agency's decision to proceed under Section 21166 to be
reviewable as an agency action separate from its decision as to which
environmental review document to utilize under that same section:
Labeling a project a "new" project, as distinguished from a "modified"
project, and finding such a label determinative, as the court did in Save
Our Neighborhood, imposes a new analytical factor beyond the
framework of CEQA. Particularly here where there is a previously
certified EIR, changes in the size, ownership, nature, character, etc., of
a project are of no consequence in and of themselves. Such factors are
meaningful only to the extent they affect the environmental impacts of
a project. Thus, in the present case, we must hark back to section
21166 and the mandate in the Guidelines that an SEIR need not be
prepared unless "[s]ubstantial changes are proposed in the project
which will require major revisions of the previous EIR ... due to the
involvement of new significant environmental effects or a substantial
increase in the severity of previously identified significant effects."
(Guidelines, § 15162, subd. (a)(1), italics added.)
153 Cal. App. 4th at 1401-1402 (emphases added.)
Mani Brothers' holding that the agency's decision to proceed under
Section 21166 was "beyond the framework of CEQA" is directly contrary to
the decisions discussed emphasizing that an agency's procedural compliance
with CEQA mandates is separately reviewable as a question of law. Mani
Brothers puts the cart before the horse, applying the substantial evidence
standard of review appropriate for projects analyzed under the statutory
framework of Section 21166 before it is clear that the agency's decision to
proceed under 21166 was lawful in the first instance. Mani Brothers thus
improperly conflates two separate legal questions -- 1) whether to proceed
40
under Section 21166; and 2) what kind of review is necessary assuming that
Section 21166 is the appropriate statutory framework --- into a single issue
resolved by substantial evidence. Here, however, it is the first question that is
at issue: i.e., what standard of review should apply to the agency's initial
decision to proceed under Section 21166? As discussed, case law holds that
procedural decision is properly reviewed as a question of law by the Court.
2. Even if the Court were to Follow Mani Brothers in this
Instance, the County Has Committed Procedural Errors in
Determining that CEQA Guideline Section 15162 Applies.
However the Court wishes to treat the precedential value of Mani
Brothers on the standard of review, here the County did not follow proper
CEQA procedures in making its determination that the 2012 HE was ‘within
the scope’ of the 2007 CWP as analyzed in the CWP EIR. Here, the County’s
assumption that the impacts of developing the 49 different housing sites
evaluated in the SEIR will be insignificant because the impacts will not greatly
exceed the impacts of general plan buildout evaluated almost a decade before
is directly contrary to Environmental Planning & Information Council, supra,
that an agency may not utilize such comparisons to avoid CEQA review of
potentially significant impacts. See 131 Cal. App. 3d at 357-358.
In Vineyard Area Citizens, supra, the Supreme Court held that an
agency’s actions should be reviewed on both procedural and evidentiary
41
grounds, and that a court should be attentive to the “nature of the alleged33
defect,” whether the error is “one of improper procedure or a dispute over the
facts.” 40 Cal.4th at 435. Here, the errors alleged by Petitioner are not
primarily factual, but rather legal, and thus a substantial evidence review
standard is inappropriate.
3. Even Under a Substantial Evidence Test, the County Has
Still Abused its Discretion.
Whether the court follows the Lishman or the Mani Brothers approach,
the County still abused its discretion. Here, there is no evidence that the CWP
EIR analyzed the potential cumulative effects of the 2012 HE inventory for 49
designated sites totaling over 2,500 new units in various Marin communities.
The CWP 2007 never addressed how the County would meet its Housing
Element Inventory Requirement and the HOD approach reviewed by the CWP
EIR differs substantially from the 2012 HE both in number and location of
units and in the criteria utilized to determine appropriate locations. Here, there
is no substantial evidence that the 2012 HE was within the scope of CWP EIR.
//
See id. at 427 (“We therefore resolve the substantive CEQA issues on which33
we granted review by independently determining whether the administrative
record demonstrates any legal error by the County and whether it contains
substantial evidence to support the County's factual determinations.”)
(emphasis added.)
42
VII. ARGUMENT
A. THE COUNTY FAILED TO PROCEED ACCORDING TO LAW
WHEN IT BASED ITS CEQA ANALYSIS OF THE 2012
HOUSING ELEMENT ON A SIMPLE COMPARISON TO THE
ESTIMATED IMPACTS OF BUILDOUT IN THE CWP EIR.
The County’s CEQA evaluation of its 2012 Housing Element failed to
proceed according to law in that it relied exclusively on the prior CWP EIR to
base its findings that the 2012 HE and its 49 new housing inventory locations
will have insignificant impacts to the Marin County environment,
The SEIR reaches this conclusion by comparing the incremental
impacts of the 2012 HE to the 42 significant and unavoidable impacts
identified in the CWP EIR based on inflated buildout numbers that assumed
maximum density development on every residentially zoned parcel in the
County. In each instance, the SEIR finds that the incremental impacts of the
2012 HE – which the SEIR itself acknowledges could be significant – will34
nonetheless not exceed the inflated buildout numbers and thus no significant
impacts from the project will occur. See AR 17 D755-758; 11 C048.35
In conducting its analysis this way, the SEIR masks potentially
See AR-17- D758 (“A ‘no’ answer does not necessarily mean that there are34
no potentially significant impacts of the 2012 Draft Housing Element...”)
The County would not have prepared an EIR for the 2012 HE at all were it35
not for new circumstances relating to sea level rise, noise and emissions. See
AR-11-C048 (“SEIR did not identify any new or substantially more severe
significant unavoidable impacts associated with approval of the Project.”)
43
significant impacts caused by the Project that are not identified or mitigated by
the County’s process. For example, the SEIR acknowledges that the projected
future cumulative traffic increases due to the 2012 HE could be up to 16% in
areas that are already experiencing significantly adverse levels of service. See
AR- 17-D957 (Exhibit 3.0-36, Row 15.) Yet this significant impact is simply
glossed over as still being not as bad as the level modeled back in 2003 and
used in the CWP EIR analysis, and thus not ‘significant.’ Id. at D965-966.
This approach violates CEQA. See Environmental Planning & Information
Council v. County of El Dorado, supra, 131 Cal. App.3d at 357-358.
On this issue, the County made two main arguments in the trial court.
First, the County argued that the 2012 HE is simply an inventory of
potential building sites, with no real consequences requiring CEQA review.
Second, the County argued that the 2012 was ‘within the scope’ of the
CWP EIR and thus the impact findings for that document could be legitimately
tiered to pursuant to CEQA Guidelines §§ 15162 & 15168(c)(2).
As discussed below, each of these arguments fails.
The 2012 HE implements – for the first time – the housing inventory
requirements of Government Code § 65583(a)(3), requiring the County to plan
for how and where to locate dense housing affordable to persons of all income
levels by creating a specific inventory of potential housing locations, along
44
with an analysis of suitability in terms of infrastructure and environmental
constraints. The housing inventory confers unique legal rights that further the
future development of the designated lands at the identified building densities.
See Govt. Code § 65863(b). The County’s certification of an SEIR purporting
to assess the impacts of the 49 future developments additionally has far
reaching effects for the future streamlining of CEQA review for these projects.
Further, the idea that the 2012 HE falls ‘within the scope’ of the CWP
EIR ignores the major differences between the two projects. Here, the issues
addressed by the 2012 HE – where and how to locate dense and affordable
housing in the County to satisfy the state law requirements – were never
evaluated in the CWP EIR, which expressly did not include the Housing
Element as part of its analysis. See AR 49-A2824, note 2; A2887, note 4.
Instead, the CWP addressed the location of denser affordable housing
not in its housing chapter, but through the establishment of a Housing Overlay
Designation (“HOD”) pursuant to its Community Development Chapter 3.4.
See AR 26 2408-2410 (describing Policy CD-2.3.) However, the 2012 HE
and SEIR barely mention the HOD. Only six of the 49 housing locations
reviewed in the SEIR were even part of the prior CWP HOD. See AR 17
D740. Meanwhile, the 2012 HE relies on new policies for affordable housing
that dispense with the restrictive criteria the CWP EIR assumed would apply
45
to future HOD sites. See AR-12-C121; Discussion pp. 67-70, 92-94, infra.
The SEIR’s approach allows the County to avoid accountability to the
public, as well as frustrating good planning procedure. The location of dense
housing has the potential for impacts that are distinct from the broadly defined
impacts expected from general buildout. The CWP EIR recognized this fact
when it conducted an analysis of the CWP’s HOD, leading directly to the
Mitigated Alternative Four adopted as the final CWP. AR-49-A03587-A3590.
For affordable housing development to be successful, accountability
and good planning must go hand in hand. All agree such development is
necessary and important, not just to comply with state law, but also as a moral
measure of society. The flip side, however, is that dense housing has the
potential for impacts, to the environment, to the community, to public services
and to persons who will eventually live in these areas. Thus, it is imperative
that planning for the locations of such housing follow proper CEQA
procedure, in order to ensure to a dubious citizenry that the County is acting
lawfully, and with full information of the consequences of its actions.
1. The 2012 HE is a ‘Project’ Reviewable Under CEQA.
The County’s adoption of a Housing Element planning for the locations
and density of future housing is a ‘project’ reviewable under CEQA. See Black
Property Owners Assn., v. City of Berkeley, supra, 22 Cal.App.4th at 985.
46
The 2012 HE implements for the first time the housing inventory
requirements of Government Code § 65583(a)(3), requiring the County to plan
for how and where to locate dense housing affordable to persons of all income
levels by creating a specific inventory of potential housing locations, along
with a suitability analysis of infrastructure and environmental constraints.
As discussed below, placement in the inventory confers unique legal
rights on a parcel that further the future development of the designated lands
at the identified densities. See Govt. Code § 65863(b). The County’s adoption
of an SEIR purporting to assess the impacts of these developments further
streamlines future review of projects at the designated densities and locations.
a. Government Code § 65583 Requires the County to
Adopt an Inventory of Planned Locations and Action
Program for Meeting its Housing Obligations.
In the trial court, the County tried to characterize the 2012 HE inventory
as simply a list of possible parcels for future housing, without legal effect.
All that inventory does is list the sites that are currently available for
housing development at certain densities as already listed in the General
Plan and zoning ordinance....
See Clerk's Transcript on Appeal ("CTA"), p. 256:8-14. This argument
misunderstands the purpose of the state laws intended to ensure adequate
housing for citizens of all income levels. See Fonseca v. City of Gilroy, supra,
148 Cal. App. 4 at 1197-1199. th
47
State Housing Law requires the County to “identify adequate sites for
housing....and ...make adequate provision for the existing and projected needs
of all economic segments of the community," including an “assessment of
housing needs and an inventory of resources and constraints relevant to the
meeting of these needs.” Govt. Code § 65583(a) (emphasis added.)
In particular, the Housing Element must contain:
An inventory of land suitable for residential development, including
vacant sites and sites having potential for redevelopment, and an
analysis of the relationship of zoning and public facilities and services
to these sites.
Govt. Code § 65583(a)(3) (emphasis added.)
The Housing Law’s inventory requirement was adopted as a 2004
amendment to ensure that local agencies plans include specifically designated
locations with predetermined densities for housing development. See Fonseca,
supra, 148 C al. App. 4 at 1180. (“Since 2005, the Housing Element Law hasth
required the detail and specificity, particularly regarding the land inventory and
identification of adequate sites to meet the locality's housing needs.”) 36
Id. at 1199 (“[W]ithout site specificity in the land inventory, the ultimate36
goals of the Housing Element Law of promoting and increasing the available
stock of affordable housing in this state are more difficult to
achieve....meaningful enforcement of the Housing Element Law, in all its
component parts, may have been undermined without...a requirement of more
specificity in the land inventory mandated by section 65583, subdivision
(a)(3).”) (emphases added.)
48
The housing inventory requirement is bolstered by other state law
provisions intended to ensure the eventual development of the parcels listed
in the housing inventory. In particular, Government Code § 65583(c) requires
the Housing Element to contain ‘[a] program which sets forth a schedule of
actions during the planning period, each with a timeline for implementation...”
A key component of this implementation program is Government Code §
65583(c)(3)’s requirement that the program “[a]ddress and, where appropriate
and legally possible, remove governmental constraints to the maintenance,
improvement, and development of housing....” (emphasis added.)
Here, the County has fulfilled these Housing Law requirements by
identifying and purporting to analyze under CEQA the feasibility and
cumulative impacts of housing development on 49 parcels totaling 2,537
dwelling units. Here, by purporting to undertake programmatic CEQA review
for these sites, the County has implemented Section 65583(c)(3)’s requirement
to remove governmental constraints for the future developments.
These actions, taken as a whole, can have cumulative physical impacts
by guiding development to pre-destined locations at densities that are by no
means mandated by the CWP. As discussed below, the designated densities
convey unique legal rights on developers of inventory parcels and completed
CEQA review helps to streamline future approvals of these projects.
49
b. The Designation of Housing Inventory Locations
Confers Legal Rights Affecting the Pattern of Future
Development in the County.
The designation and analysis of the housing inventory is specifically
intended to ensure that these housing sites will be available for development
at the densities designated. Here, Government Code § 65863(b) states that
once a parcel is presented as accommodating high density development as part
of a Housing Element inventory under Government Code § 65583(a)(3), a
local agency may not permit the reduction of such residential density below
that utilized by HCD in determining compliance with state law, unless the
agency makes written findings supported by substantial evidence that (1) the
reduction is consistent with the adopted general plan, including the housing
element; and (2) the remaining sites identified in the housing element are
adequate to accommodate the jurisdiction's share of the regional housing need.
Section 65863(b)’s restriction on the County’s ability to reduce the
future density of an inventory parcel is significant, particularly in the typical
situation where the number of units assigned to a parcel is necessary to meet
an agency’s regional housing allotments under State law.
c. The County’s CEQA Review of 49 Site Locations As
a Means to Implement the 2012 HE Policies to
Streamline Review for Future Dense Housing
Projects Also Confers Legal Rights .
The SEIR prepared in conjunction with the 2012 HE confers legal
50
rights on developers, in that they may claim, with legal justification, that the
programmatic, cumulative impacts of the proposed development at the
Housing Element inventory densities have already been analyzed under CEQA.
The record shows this was the motivation behind the County Board’s
request in 2010 to staff to conduct CEQA review for all the sites identified in
both the present and potential future housing element inventories, AR-66-
3175, so as to “expedite Housing Element review and approval for this and
future planning periods.” AR-151-I07248.37
The completion of CEQA review for these sites at the stated densities
has the potential for significant impacts, since no further review will be
required in the future to utilize these locations as Housing Element inventory
under Government Code § 65583(a)(3). As Planning Commission Chairman
Holland explained, “the CEQA is done already when we look at those sites as
the menu of potential options for the next round.” AR 414 P11637:1-2
(emphasis added.) See also id. at P11637:4-5 (statement of the lead County
Planner explaining that Chairman Holland’s assessment was “exactly right.”) 38
See also AR-370-N10583 (County “anticipated that inclusion of the potential37
sites for the 2014-2022 cycle [would] expedite the review and approval of the
housing element for that planning period.”) AR-151-I07248.
The County’s decision to conduct CEQA review on 49 different parcels was38
motivated by practical incentives, for the County to “have just sort of doubled
up on doing the environmental review ....so that when we look at them in the
future, the environmental review was all done.” Id. at P11637:7-8.
51
Even if the listed projects never became part of a future Housing
Element inventory, the CEQA findings made in the SEIR, specifically that the
‘project’ (i.e., the development of the parcels at the assigned housing inventory
densities) would not have any cumulatively significant effects, may be tiered
to by future developers proposing similar housing densities. While the County
might still require some site-specific review relating to design criteria, there
would be no requirement to consider the cumulative impacts of locating such
dense projects in areas already experiencing significant cumulative effects with
respect to traffic, flooding, public services, school facilities etc. Instead, that
programmatic review would already have been addressed in the SEIR. See AR
412-P11453:18-24 -11454:1-2 (Commissioner states: “[T]here is a real threat
here that you could short-circuit the environmental review process by allowing
someone say, “Oh well, you’ve already looked at…” you know, if they want
100 units in Strawberry, you’ve already looked [at] 243 units.”)
The SEIR’s purported programmatic review allows the County to find
that subsequent future projects fall ‘within the scope’ of the SEIR, see 14 Cal.
Code Regs., § 15168(c)(2), and thereby utilize tiering to streamline any
additional environmental review. As noted by the SEIR consultant:
I think in those situations you want to go back to kind of the same
threshold that we looked here and that is - were the impacts, if you look
at a project, analyzed in a previous document, in this case via the
Housing Element EIR. Do the changes involve new or substantially
52
more severe significant impacts? Any new circumstances involving
new or substantially more severe impacts, or any new information of
substantial importance, requiring new analysis..?
AR 412 P11455:24-25 - 1456:1-6. This, of course, is the same approach
undertaken by the SEIR in tiering its entire analysis to the CWP EIR. The
result is a sequential tiering process, where the broad and relatively superficial
analysis contained in the 2007 CWP EIR is continually trotted out as a
substitute for the missing analysis of the actual, on-the-ground cumulative
impacts as they are occurring with each successive development, yet which
end up never being reviewed in a CEQA proceeding. See AR 412 P11456:17-
23 (Commissioner: “But if it didn’t cross that threshold, then that at least
would be a strong argument that the environmental review has already been
conducted, on that issue...? STAFF: Yep.”)
The completion of CEQA review for all 49 parcels was a specific
component of the 2012 HE Implementation Program IP 1.b, which required the
County to create a “sites inventory that will include enough sites to meet the
projected housing needs...over the next two RHNA cycles.” AR-19-E01188
(IP 1.b.c.) The CEQA review also implements the 2012 HE’s Implementing39
Program IP 1.d, which requires the County to streamline the review for
The 2012 HE states IP Implementing Program has already been “[c]ompleted39
by Housing Element Task force and through Housing Element update,” AR 19
E01187, note 1, which would include the CEQA evaluation in the SEIR.
53
affordable housing by “making the review process more efficient and
clarifying permitted density.” See AR-151-I07248 (“Inclusion of the additional
sites for the 2014 to 2022 cycle in this Draft SEIR is intended to expedite
Housing Element review and approval for this and future planning periods.”)
CEQA review also fulfills Government Code § 65583(c)(3)’s
requirement that the program “[a]ddress and, where appropriate and legally
possible, remove governmental constraints to the ...development of housing.”
(emphasis added.) See AR 19 E1188. Through its programmatic SEIR, the
County implements Section 65583(c)(3)’s objective to streamline review for
future housing projects consistent with the inventory numbers. 40
The certification of the SEIR for the County’s approval of the 49 sites
considered present and future Housing Element inventory, in implementing
2012 HE programs, is itself a component of the overall ‘project’ at issue in this
case, with its own possibilities for creating significant impacts down the line
due to inappropriate but legally defensible streamlined review. Here, the SEIR
remains valid and in effect, regardless of whether or not a particular parcel
As discussed, the County has also exempted affordable housing projects40
from master plan and precise development plan requirements, which will also
streamline future project approvals. See County Code § 22.44.035; AR-19-
E01143 (amendment is intended to “shorten the costly pre-development
process undertaken by affordable housing developers in order to secure
approvals.”)
54
ever becomes part of the inventory. In future years, as inventories change, the
SEIR’s continued existence represents a future CEQA pass on development at
that density whether that parcel is plugged into the inventory or not.
2. The 2012 HE Does Not Fall ‘Within the Scope’ of the CWP
Project that Was Covered by the CWP Programmatic EIR.
The SEIR does not contain a true impact assessment of the 2012 HE,
but instead only compares the potential impacts to the impacts of the estimated
2007 CWP buildout as evaluated in the CWP EIR. As discussed below, the
County’s approach errs in assuming that the required CEQA review for the
2012 HE falls “within the scope” of the CWP EIR’s analysis.41
a. Program EIRs and Tiering Under CEQA.
The CWP EIR is a program EIR, which evaluates the impacts of the
CWP at a broad level, based on the predicted effects of buildout:
As a program EIR, this document focuses on the overall effect of the
Draft 2005 CWP Update... The nature of general plans is such that
many proposed policies are intended to be general, with details to be
worked out during implementation. Thus, many of the impacts and
mitigation measures can only be described in general or qualitative
terms. The analysis in this program EIR is considered the first tier of
environmental review...
As discussed, p. 36, note 28, the record is not clear about the precise manner41
in which the County concluded that review under CEQA Guideline § 15162
was appropriate. Based on the regulations, Petitioner assumes the County
intended that the 2012 HE SEIR was ‘within the scope of’ the CWP EIR
pursuant to CEQA Guideline § 15168(c)(2).
55
See AR 49 A-02812 (emphasis added.) Programmatic EIRs are typically
“prepared on a series of actions that can be characterized as one large project
and are related...in connection with the issuance of rules, regulations, plans, or
other general criteria to govern the conduct of a continuing program." 14 Cal.
Code Regs. § 15168(a)(3).
Programmatic EIRs allow for “tiering,” in which an agency may assess
the environmental consequences of planning and project approvals at each
appropriate planning stage. Stanislaus Natural Heritage Project v. County of
Stanislaus (1996) 48 Cal. App. 4th 182, 201; Pub. Res. Code §§ 21093, 21094;
§ 21068.5; 14 Cal. Code Regs. § 15152. “[T]iering is appropriate when it helps
a public agency to focus upon the issues ripe for decision at each level of
environmental review and in order to exclude duplicative analysis of
environmental effects examined in previous environmental impact reports."
Koster v. County of San Joaquin (1996) 47 Cal. App. 4th 29, 38 (emphasis
added.) See also Pub. Res. Code § 21093(a); 14 Cal. Code Reg. § 15152(b).
b. Issue is Whether the CEQA Review of the 2012 HE
Was “Within the Scope” of the CWP EIR.
CEQA Guidelines § 15168 controls how CEQA tiering should occur.
Under Section 15168(c), “[s]ubsequent activities in the program must be
examined in the light of the program EIR to determine whether an additional
environmental document must be prepared,” as follows:
56
(1) If a later activity would have effects that were not examined in the
program EIR, a new Initial Study would need to be prepared leading to
either an EIR or a Negative Declaration.
(2) If the agency finds that pursuant to Section 15162, no new effects
could occur or no new mitigation measures would be required, the
agency can approve the activity as being within the scope of the project
covered by the program EIR, and no new environmental document
would be required.
14 Cal. Code Regs. § 15168(c)(1)-(2). (emphasis added.) Under this standard,
an agency wishing to rely fully on the tiering process to avoid CEQA review
must determine that the issues addressed in a subsequent project are “within
the scope” of the prior programmatic EIR. See id., § 15168(c)(2).42
Here, the County determined that the 2012 HE would not itself cause
any significant impacts not already addressed by the CWP, AR 11 C048, and
on that basis chose to forgo cumulative impact and alternatives analyses fro the
project. See AR 16 D326 (“[I]t was not necessary to revise the cumulative
analysis or the alternatives discussion of the 2007 Countywide Plan EIR.”)
c. The SEIR Analysis for the 2012 HE Does Not Fall
Within the Scope of the CWP Analysis.
The 2012 HE is the first County Housing Element containing a Housing
As discussed in Section VI.C.1-3, pp. 36-42, supra, while there is a current42
split of authority on whether this Court’s review of that decision should be as
a matter of law or instead based on substantial evidence, the County’s
determination in this instance that the 2012 HE was within the scope of the
CWP EIR fails to pass muster under either review standard.
57
Element inventory, including a programmatic CEQA review of 49 sites at
specific high densities totaling approximately 2,537 units. In contrast, the43
CWP EIR simply does not analyze the County’s obligation to meet its Housing
Element inventory requirements. Indeed, the CWP EIR states that the 200344
Housing Element existing at that time was “not the subject of this CWP
update” and thus not addressed in the CWP EIR. AR-49-A-2824, n. 2. Here,
to the extent the CWP EIR addressed housing element issues at all, it did so
through its analysis of the CWP’s HOD program, which as discussed below,
differs in important ways from the 2012 HE’s inventory and policies.
The CWP EIR analyzes the impacts of housing development at two
specific levels: 1) a first-tier review for maximum theoretical buildout in the
County; and 2) a quasi-second-tier review for specific locations where dense
housing might be located as part of the ‘housing overlay designation’ or HOD.
The 2012 HE does not fall within the scope of either of these analyses.
The 2012 HE housing inventory was created and analyzed by the County in43
response to the requirements of the 2004 Housing Element Law amendments,
set forth at Government Code §§ 65583(a)(3) and 65583(c). The 2012 HE
responds to the state Government Code requirements that cities and counties
develop a plan that provides dependable housing inventory over 8 year
increments. See Govt. Code §§ 65580-65589.8.
Although the state law amendments requiring a housing inventory were44
adopted in 2004, at the time of the CWP update in 2007, the County had no
obligation to update its 2003 Housing Element. Thus the housing inventory
requirement never came up until the County set about adopting the 2012 HE.
58
(1) The 2012 Housing Inventory Identification and
CEQA Review of 49 Specific Sites Does not
Fall within the Scope of the CWP EIR’s
Analysis of General Plan Buildout.
(a) CWP EIR’s Buildout Analysis is at a
Lower Tier of Review as That Required
for the Housing Element Inventory.
The 2007 CWP EIR’s buildout analysis was a rough, first-tier impact
assessment, conducted at the County-wide level, based on the inflated
population estimates of the day and the assumption of the maximum
“development which could occur if land vacant in 2005 were fully developed
according to the zoning designations of the cities and towns in Marin County
and the Draft 2005 CWP Update.” See AR-49-A2904. Predictably, the CWP
EIR found that there would 42 significant and unavoidable impacts to the
County across a host of resources based on the theoretical buildout.
In contrast, the 2012 HE EIR is a second-tier, more refined plan as to
how and where housing density would be located within the County in
response to state law requirements. See AR 412 P11457:4-5 (County Planning
Commissioner refers to 2012 HE as “finer level in terms of a tiered document,
but ...still the same concept as the county-wide plan.”) (emphases added.)
The County’s argument that the 2012 HE falls within the scope of the
CWP EIR’s buildout analysis fails to comprehend the concept of tiering in
program EIRs, as discussed above. Under CEQA, tiering allows an agency to
59
focus on the issues that “ripe for review” at each programmatic stage in the
tiering process. See Koster v. County of San Joaquin, supra, 47 Cal. App. at
38; Pub. Res. Code § 21093(a); 14 Cal. Code Reg. § 15152(b).
For the 2012 HE, the issue ripe for review is the environmental
consequences of the 2012 Housing Element, complete with its 49 sites
designated as present and potential future Housing Element inventory, as well
as completed implementation measures in the form of the SEIR’s review,
which will lead to high density projects on a wide swath of residential property
in the County by enabling future streamlined development of these parcels.
These issues require planning and review under CEQA, yet were not45
addressed by the CWP EIR’s first-tier maximum buildout analysis.
Under CEQA, programmatic EIRs may be used for continuing
programs, allowing for more specific planning documents to address the more
refined questions that arise as General Plan policies are implemented. Here,
the many new issues raised by the 2012 HE – the locations for present and
Program EIRs allow an agency to conduct 1) a more exhaustive consideration45
of effects and alternatives than would be practical in an EIR on an individual
action; 2) ensure consideration of cumulative impacts that might be slighted
in a case-by-case analysis, 3) avoid duplicative reconsideration of basic policy
considerations; and 4) allow the Lead Agency to consider broad policy
alternatives and program-wide mitigation measures at an early time when the
agency has greater flexibility to deal with basic problems or cumulative
impacts. See 14 Cal. Code Regs. § 15168(b.)
60
future Housing Element inventory, the changes to the CWP and zoning code
to increase densities on residential lands, the specific direction to increase the
number of developing units in specific areas not previously analyzed – were
never discussed in the CWP EIR, and thus could not be found to be “within the
scope” of the CWP EIR’s “first tier” buildout analysis. See AR 49 A-02812
(“The nature of general plans is such that many proposed policies are intended
to be general, with details to be worked out during implementation.”)
The planning process for the County’s Housing Element, leading to a
present and future inventory for the amount and location of dense housing in
the County, does not in any way correspond to a blanket buildout model, but
instead more to a specific plan, identifying where the densest housing in Marin
will occur in the next fifteen years. Under CEQA, these potential project
impacts must be assessed as to the existing physical environment, not
compared to the theoretical buildout that may or may not occur in the future: 46
The comparisons, we have seen, are always between the existing
general plan and the proposed amendments....The comparisons utilized
in the EIRs can only mislead the public as to the reality of the impacts
and subvert full consideration of the actual environmental impacts
The CWP EIR itself explains that “theoretical buildout may be greater than46
the development than would realistically occur due to a number of factors”
including “environmental constraints and “policies or regulations.” AR-49-
A2906. The EIR further discusses how, in the City of Novato, projected
realistic buildout numbers were less than 20% of the maximum development
potential allowed under the existing zoning. Id.
61
which would result. ... Accordingly, the EIRs fail as informative
documents.
Environmental Planning & Information Council, supra, 131 Cal. App.3d at
357-358. See also Center for Sierra Nevada Conservation, supra, 202
Cal.App.4th at 1184 (CEQA “evinces no interest in the effects of proposed
general plan amendments on an existing general plan, but instead has clearly
expressed concern with the effects of projects on the actual environment upon
which the proposal will operate.”)
Comparing a project’s impacts with the theoretical impacts of a general
plan buildout has the potential to mask the actual impacts of the project,
leading to an informational disconnect on CEQA’s most fundamental
principles, that potentially significant impacts of a project are identified and
feasible mitigation adopted to avoid or substantially reduce such impacts
considered as part of the EIR process. See Pub. Res. Code § 21002.
(b) Buildout Numbers Relied on in CWP EIR
Were Inflated.
Even if the CWP EIR’s buildout analysis were somehow assumed to be
comparable to the analysis required to assess the impacts of 49 specific
housing sites with specific numbers and densities for residential units, the
problem remains that the buildout numbers used by the CWP EIR were in fact
inflated and thus not predictive of future conditions.
62
The 2007 CWP EIR relied on 2003 ABAG population projections
compiled for the year 2030. See AR-49-A2905. These envisioned a projected
2030 population of 283,100 in Marin County, with 76,400 persons in the
unincorporated area. AR- 49-A2905. However, the SEIR projections are
smaller, predicting a future 2035 population of 270,900, with 73,000 in the
unincorporated area. AR 17 D0924.
An example of how the actual lower population figures can
substantially affect the CEQA cumulative impact analysis is presented by the
SEIR’s traffic analysis, the only analysis conducted by the SEIR with respect
to the actual effects of the SEIR’s inventory sites being developed.
The SEIR traffic analysis shows the number of vehicles predicted in the
2007 CWP EIR for the year 2030 was substantially higher than the updated
estimates contained in the SEIR for the year 2035. As a result, even when47
the data showed substantial incremental increases in adverse traffic conditions
that would be caused by the 2012 HE project, those overall impacts would48
See e.g.,AR 17 D955, Row 15. The traffic data shown for this segment47
demonstrates that predictions for 2030 traffic levels made in 2005 (1,035
vehicles per hour (VPH) for the am peak) were well above the updated
estimates of 773 VPH for the year 2035 Cumulative Baseline. This
overestimation of future impacts is consistent for all road segments. See AR
17 D955-958 (Exhibits 3.0-35 and 3.0-36.)
Exhibit 3.0-35, Row 15 states that vehicles per hour will increase from 77348
to 867 due to the Project, lowering the LOS from an “E” to an “F”. See pages
44, 52 supra; pages 61, 81-83 & 85, infra, re further traffic issues.
63
still be less than the prior inflated numbers from the CWP EIR, and thus,
according to the SEIR, ultimately not significant. See AR 17 D959
(“[C]ompared to the year 2007 analysis for Alternative 4, screenlines show
similar or improved conditions...no new significant impacts ...”)
The County’s comparisons to old inflated growth and impact data for
purposes of presenting a project as having ‘beneficial’ impact violates CEQA.
See Environmental Planning & Information Council, supra, 131 Cal. App.3d
at 357-358 (court rejects EIR’s claims that development will reduce impacts
compared to maximum buildout numbers.)
The traffic impact example highlights that the population figures relied
in the CWP EIR to find that the project would cause 42 significant and
unavoidable impacts did not in fact reflect the actual conditions that will occur
in Marin County over the next two decades, which, for traffic at least, may be
only about 75% of the level of impact originally assumed in the CWP EIR.49
See Center for Biological Diversity v. Department of Fish & Wildlife (2015)
62 Cal. 4th 204, 228 (lack of “quantitative equivalence“ between compared
projects deprived the EIR of its "‘sufficiency as an informative document.'”)
//
See e.g., AR-17- D955, Row 15, comparing traffic data in am peak hours for49
2030 traffic levels made in 2005 (1,035 VPH) versus predicted VPH of 773
VPH for the year 2035. 773/1,035 = 75%.
64
(2) The 2012 Housing Inventory and CEQA
Review of 49 Specific Sites Also Does not Fall
Within the Scope of the CWP EIR’s Analysis
of the CWP’s Housing Overlay Designation.
In addition to a buildout analysis, the CWP EIR also reviewed the
possible impacts of developing its housing overlay designation (“HOD”) sites.
The 2012 HE and SEIR do not fall ‘within the scope’ of that analysis either.
(a) The Housing Inventory Sites Comprise
Many More Units and Sites than the
HOD Analyzed in the CWP EIR.
The CWP EIR analyzed the effects of locating 658 units of HOD sites,
see AR 26 F2408-F2409, which are discussed separately from the buildout
analysis. In contrast, the 2012 HE and its associated housing inventory50
locations designate dense development up to and beyond 30 units per acre at
49 different locations with 2,537 dwelling units in the unincorporated part of
the County. See AR 17 D723-733, 736-739. Only six of the 49 housing
locations reviewed in the SEIR were CWP EIR HOD sites. See AR 17 D740.
These gross number differences take on greater significance in specific
See AR-49-A3010-3011 (“land use, population and housing”); A3048-3052,50
A3059, A3075-A3081 (“transportation”); A3149, A3152-A3519, A165-
A3166, A3176, A3180, 3185 (“hydrology, water quality and flood hazards”);
AR-49-A3211, A3221, A3226, A3232 (“biological resources,”) AR-49-
A3251, A3263, A3265 (“geology”). See also AR-49-A3383 (water supply);
AR-49-A3477 (fire risk); AR 3520 (visual aesthetics), in which the EIR
assumes that the creation of 1,694 HOD units away from sensitive hill or wet
areas, near a designated transport hub, will be environmentally beneficial.
65
community areas where, for example, traffic congestion levels are already
high. Thus, in the Lucas Valley area, three sites: Grady (Site 17, 240 units),
Big Rock Store (Site 36, 80 units) and Rotary Field (Site 37, 60 units) that
were not part of the HOD add another potential 380 units of housing (up to
over 500 units with density bonuses) that were never analyzed in the CWP51
EIR’s HOD review. See AR 17 D724, 739; D725 (Exhibit 2.0-5(a)). Similarly,
in the Tam Junction area, five new locations are identified, adding
approximately 200 additional units to an area already in a flood zone, with
existing significant cumulative traffic effects. In the Kentfield area, 262 new52
units are added, including 90 units at the Sloat Garden Center and Sunnyside
Nursery locations which are also in existing flood zones. 53
The CWP EIR’s second-tier analysis of the potential impacts of the
location and numbers of HOD housing as part of its CEQA review gives the
lie to the County’s assumption that the 2012 HE is within the scope of the
Density bonuses for affordable housing are typically calculated at an51
additional 35% of the available density. See County Code § 22.24.020(C).
See Old Chevron Station (21 units), Manzanita (3 units), Armstrong Nursery52
(53 units), Around Manzanita (45 units), Tam Junction Retail (60 units), AR
17 D723-733, 737-739; 727 (Exhibit 2.0-6.)
See College of Marin (45 units), Kentfield SFD Eastbound (60 units)53
Kentfield SFD Westbound (60 units), Marin General Hospital (50 units), Ross
Valley Store (45 units) Sloat Garden Center (60 units) and Sunnyside Nursery
(30 units). AR-17-D723-733, 737-739; D720 (Exhibit 2.0-8.)
66
CWP EIR’s buildout analysis. That the CWP EIR distinguished between its
buildout and HOD analyses demonstrates that the 2007 CWP review process
considered the potential impacts of HOD sites to be distinct, with possibly
greater impacts than could be measured by review of CWP buildout alone. 54
(b) The 2012 HE Housing Inventory Sites are Not
Limited by the Criteria Found Necessary by
the CWP EIR to Avoid Significant Impacts.
The 2012 HE implements new policies to encourage the siting of
affordable housing that are at odds with the restrictive policy criteria set forth
in CWP Policy CD-2.3, including limits for HOD sites to areas 1) within
one-half mile of a transit node and one mile of a medical facility, library, post
office, or commercial center; and 2) away from sensitive land occurring within
the Ridge and Upland Greenbelt, near wetlands or streams or primarily in the
100-year flood plain. See AR-26-F2408-F2409.
As part of its analysis, the CWP EIR made a specific determination that
As an example, the CWP EIR contains detailed discussions of the different54
impacts expected by the expected level of development for the St.
Vincent’s/Silveira properties. See e.g., AR-49-A2878 (“Environmental impacts
associated with development at the St. Vincent's / Silveira properties are
discussed in the EIR.”) Elsewhere, the CWP EIR traffic assessment includes
specific intersection analysis based on the location of the proposed HOD sites.
See e.g., AR-49-3048 (Exhibit 4.2-17); 3075-3081; AR-26- F2409-10 (Figure
3.3); F2851A-B (maps of HOD locations); F2851C ( Screenline Map 3-2c.).
The CWP EIR also looks at the presence of HOD sites in floodplains, AR-49-
A3149-3159, A3185, impacts from HOD sites to water quality, AR-49-A3165-
3166, and to biological resources. AR-49-A3226, A3230, 3232.
67
the location of HOD projects totaling 1,694 units would create cumulative land
use conflicts in the County, and thus recommended the adoption of Mitigated
Alternative Four, which eliminated the HOD sites that did not meet the CWP
Policy CD-2.3 criteria. The County subsequently adopted this alternative as55
the final CWP, incorporating new Mitigation Measure 4.1-5. AR-12-C121.
In contrast to the CWP EIR’s approach, the 2012 HE location of
housing inventory sites does not in any way limit itself to the Policy CD-2.3
criteria. Thus for example, a site such as Grady Ranch – designated for 240
units at 30 units per acre density, AR-17-D724 - occurs miles away from the
closest traffic node, within a Ridge and Upland Greenbelt zone, and in areas
of known streams and wetlands and geological and hydrological hazards. See
id. D725 (map showing location); D811; 26-E1256; AR 291 L9862-9863.56
Other actions taken by the County during the 2102 HE approval process
only increase the likelihood of future dense developments occurring on parcels
that in no way meet the Policy CD-2.3 criteria, including: 1) affordable
See AR 49 A-3610 (CWP eliminates HOD sites that do not meet the HOD55
criteria to reduce land use impacts to a less than significant level.) See AR 12
C0121; 49 A-2828. See also A-3010 (development of incompatible HOD sites
“would be inconsistent with the ...criteria and result in land use conflicts. This
would be a significant impact.”)
Many other 2012 HE parcels also fall outside of the Policy CD-2.3 criteria in56
relation to sensitive or flood prone parcels. See AR-17-D810-815 (biological
resources); D831-835 (geology and soils); D892-898 (flooding). See also
D725 Exhibit 2.0-5(a) (showing location of sites away from transit nodes.)
68
housing may be located on all residentially zoned parcels up to the maximum
density allowed on such parcel; and 2) affordable housing may be exempted
from the previous requirements of the CWP that building on sensitive lands be
limited to the minimum densities permitted under the zoning. 57
This new approach, implemented and relied on in the 2012 HE to meet
the stated housing inventory amounts, was never analyzed in the CWP EIR,58
yet has the potential for substantial changes to land use development in the
County. Here, the SEIR purports to evaluate adding over 2,500 HOD type59
units, many of which do not meet the locational or sensitive land criteria
These amendments to the zoning code and CWP are described in the Factual57
Background at pp. 22-24, supra.
See AR 420 P12157:10-20 (Planning Commissioner states “that's a major58
policy change...putting housing of any kind.. at higher than the lowest range
of the density allowable,.....It’s a real change. Not a technical change.”); AR
16 D521 (“[T]he Project proposes sweeping changes to the 2003 Housing
Element and development contemplated in the Countywide Plan, necessitating
substantial changes to the 2007 Countywide Plan EIR. ...”)
As an example, the zoning changes have the potential to change the allocated59
density on lands designated as Planned Residential (“PR”) in the CWP, see 26-
F2431, by a factor of 10 on thousands of acres, from the minimum of one unit
per 10 acres to the maximum of one unit per one acre (i.e., zoning ranges from
RMP-1 to RMP-.1). Id. See also AR 27 2852 - 2919 (Land Use Policy maps);
id. at F2862-2863 (showing extent of PR zoning in the Lucas Valley
Environs.) On large parcels with significant ridge, upland greenbelt or other
sensitive natural features, the change in density change can be dramatic. For
example, prior to the amendments, the stated entitlement for Grady Ranch was
“roughly 40 units.” AR-411- P11321:1. With the changes made, that number
is now up to 240 units. See id. at P11321:15-17; AR-19-E1171, row 16.
69
found by the CWP EIR to be necessary to avoid significant land use impacts.
This Project cannot be ‘within the scope’ of the CWP EIR’s HOD analysis.
3. The 2012 Housing Element Implements CWP Policies and
Thus Must Have its Own Review Under CEQA.
The 2012 HE is a plan of action, which implements the aspirational
goals of the CWP's housing section to identify affordable housing locations for
future development. See e.g.,AR 26 F2512 (Policy HS-3.18). As discussed,
program EIRs are typically used for a series of related planning actions such
as the adoption of a general plan, followed by the subsequent implementation
of general plan programs. See AR 49 A-02812 (general plans details to be
“worked out during implementation.”)
Under CEQA, where the details of programs are not well defined in a
general plan, the subsequent consideration and approval of planning decisions
implementing the General Plan programs must undergo CEQA review as a
second tier project in the planning process. See Center for Sierra Nevada
Conservation v. County of El Dorado, supra, 202 Cal.App.4th at 1176. 60
Center for Sierra Nevada Conservation addressed a county’s implementation60
of a General Plan policy to develop an oak woodland management plan, which
would implement various general policies with more detail and specificity. Id.
at 1176-1177. The court noted that the County’s discretionary decisions on the
details of that plan – where or how much to preserve oak woodlands– were
new issues that had not been addressed in sufficient detail in the CWP EIR to
allow the County to avoid further CEQA review. See Id. at 1180-1184.
70
Here the 2012 HE implements CWP policies to identify specific
locations for denser housing, and to adopt measures – from new programs to
changing the zoning code – that will encourage the siting and development of
such housing in the County. The specifics of that direction – the relative
locations of thousands of designated units, the manner in which the zoning
code should be changed to increase building density – are implementation
measures that require their own CEQA review and not simply a cursory
reference back to CWP EIR done for a different project altogether. Id. at 1176
(implementation of general plan meets definition of a 'project' under CEQA.)
4. The County’s Reliance on the CWP EIR’s Alternatives
Analysis for its CEQA Review for the Project is Improper.
One of CEQA’s most fundamental requirements is that an agency
consider project alternatives which may "avoid or substantially lessen" the
significant adverse impacts of a proposed project. Pub. Res. Code §§ 21002,
21002.1; Laurel Heights, supra, 47 Cal.3d at 400 (Regents' argument that no
discussion of alternatives was required is contrary to CEQA.)
Here, another casualty of the SEIR’s unlawful comparison to the CWP
EIR’s buildout assessment is its decision not to assess Project alternatives:
[A] supplement to an EIR need contain only the information necessary
to make the previous EIR adequate for the project as revised. Therefore
it was not necessary to revise ...the alternatives discussion of the 2007
Countywide Plan EIR.
71
AR-16-D326 (emphasis added.)
The problem with this approach is that the CWP EIR’s alternatives
analysis was precisely what led County planners back in 2007 to choose
Mitigated Alternative 4, which mitigated impacts in part by limiting the
number of HOD sites to those strictly meeting the Policy CD-2.3 criteria.
In doing so, the County rejected the 2005 Proposed CWP Update alternative
as causing avoidable impacts. See id. at 141 (“The 2005 Proposed CWP
Update..does not incorporate the mitigation measures identified by the EIR,
nor the further mitigation incorporated into the Mitigated Alternative.”)
This history is relevant because here the 2012 HE is proposing – and the
SEIR is purporting to analyze – up to 2,537 present and future Housing
Element inventory units that could be developed. This is considerably more
than the 1,694 units of HOD housing proposed in the 2005 draft CWP Update
that was rejected as an alternative by the County due in part to the resulting
significant impacts. Here, the 2012 HE and SEIR propose locating dense61
housing in a manner that exceeds the levels of the 2005 Proposed CWP Update
that was previously rejected. In this context, the SEIR’s failure to consider any
’See AR-12-141 (“The 2005 Proposed CWP Update would result in a greater61
amount of development than the Mitigated Alternative, including more
housing in some areas of the City-Centered Corridor. Thus, it creates greater
strains on traffic and greater demand for water in those areas.”)
72
alternatives that would avoid such impacts is contrary to law. See e.g,
Federation of Hillside & Canyon Associations v. City of Los Angeles (2000)
83 Cal. App. 4th 1252, 1264. (discussion should focus on “alternatives that
could substantially reduce or avoid” significant environmental effects.)
Besides this plain conflict, the 2012 HE Project does not correspond to
any of the alternatives considered in the CWP EIR. See AR-49-A3531-
A3663. This general analysis compared four different buildout projections62
with corresponding total housing units ranging from 31,686 units (Alternative
3) to 32,831 units (Alternative 2), see AR-49-A03535, along with buildout
information for specific planning areas. Id., A03536.63
The CWP EIR does consider HOD sites as part of its alternatives’
analysis, providing a specific comparison of numbers at the six HOD sites
discussed. See AR-49-A3535 (Exhibit 5.0-1). But this comparison also does
not establish a framework to which the SEIR’s alternatives analysis may tier.
These were: (1) no-project alternative (Alternative 1); (2) pro-build62
Alternative 2; (3) protective Alternative 3; and (4) “mitigated” Alternative 4,
which added mitigation measures to reduce impacts, including Measure 4.1.5
requiring HOD sites to comply with the Policy C-2.3 criteria. Id.
As can be seen from Exhibit 5.0-1, the difference between the population63
figures for Alternative 1 and Mitigated Alternative 4 is 915 units, which likely
corresponds precisely to the overall reduction of 936 HOD units (from 1694
down to 758) as part of the implementation of Measure 4.1.5 as discussed
above, see AR-49-A3535, plus some additional units reverting back due to the
pre-HOD densities for calculating buildout again being counted.
73
If anything, it proves the opposite, that an alternatives comparison of where to
locate dense housing could provide useful information for the County as it
moves forward on these important planning decisions required by state law.
Here, as discussed below, the 2012 HE may have significant impacts
that were not addressed by the CWP EIR, but which were also not identified
in the SEIR on issues relating to traffic, flooding, services, sensitive biological
areas, schools etc. However, the SEIR contains no discussion about possible
alternatives related to the siting of Housing Element inventory that might
substantially reduce or avoid impacts on these issues. Instead, the entire
inventory of 49 sites is simply presented, without meaningful evaluation due
to the SEIR’s unlawful reliance on the CWP EIR. 64
In fact, the record shows that the County actually made important policy
choices in pursuing its Housing Element objectives:
[W]e believe that a site based rezoning program would limit the range
of opportunity in the unincorporated County given the broad range of
zoning types in place. We have favored a blanket density increase up
to the maximum allowed in the Countywide Plan which has the
potential to yield many more units.
The SEIR constantly relies on the CWP EIR’s findings back in 2007 that64
certain mitigation measures were infeasible – often due to budget shortfalls
existing at that time – without ever addressing whether such measures would
have been still infeasible in 2013. See e.g., AR 17 D786 (SEIR refers to 2007
CWP EIR process and notes the “Board of Supervisors found that
implementation of Program TR-2.g (Add Bicycle Lands) was not feasible” as
a means to reduce significant air pollution.)
74
AR 231 J8479 (emphasis added.) This policy decision led the County to
amend its zoning code and CWP to permit housing projects qualifying as
affordable to build to the maximum allowed density despite the lack of public
services or presence of sensitive resources. See Discussion, pp. 22-24, supra.
The County also made an important policy choice in its siting of
Housing Element inventory when it decided that such housing would not need
to follow Policy CD-2.3's criteria for siting HOD developments.
These policy decisions made by the County as part of its adoption and
implementation of the 2012 HE – with the potential for significant cumulative
effects never analyzed in the CWP EIR – should have undergone an
alternatives analysis as part of the County’s CEQA review in this case.
5. This Court’s Decision in City of Napa is Distinguishable.
City of Napa, involving a very different fact pattern, does not control
the Court’s decision in this case. City of Napa involved a minor Housing
Element update, which the court determined made non-significant changes to
the City’s Land Use Element to increase the minimum residential densities in
seven areas from 10 to 40 residential units per acre to 20 to 40 residential units
per acre and the permitted density for eight multifamily sites by a total of 88
units. 221 Cal.App.4th at 198. Under these circumstances, the court found
there was “no dispute” that these slight changes were ‘within the scope’ of the
75
prior general plan EIR. Id. at 204.
City of Napa differs in several important respects from this case.
First, City of Napa did not consider the impacts of the city’s housing
element update separately from the changes to the minimum density standards
of the general plan’s land use element. That approach would be inappropriate
in this case, however, given the important planning decisions made in the 2012
HE that are separate from the Land Use Element. Here, the 2012 HE plays a
unique role in the CWP separate from the Land Use Element by providing the
program for how the state will meet its housing obligations under state law.
Two components of the program are key: 1) designation of a housing inventory
with specified building densities; and 2) completion of programmatic CEQA
review as a means to streamline the future development process. Each of these
actions is in response to a state Housing Element mandate that in itself does
not affect the Land Use Element of the CWP. Yet each have the potential for
long term cumulative impacts that have never been analyzed.
In contrast, City of Napa’s focus was narrow:
All of the alleged changes resulting from the Project that plaintiff
complains will result in significant impacts--primarily the changes in
density--are changes that the Project makes to the Land Use Element,
not the Housing Element.
221 Cal. App. 4 at 203-204 (emphasis added.) In City of Napa, the issues asth
argued by plaintiff were a small change in minimum densities on seven
76
different parcels and an incremental increase in permitted density for 88
multifamily units. 221 Cal.App.4th at 198. This Court accordingly limited its
analysis to these minor changes in the land use element.
City of Napa did not consider the impacts of the a project like the one
put forth by the County in this case, a sprawling inventory of 49 potential
developments, with specific locations and unit densities already identified and
ostensibly with CEQA programmatic review, which present environmental
impact issues separate and distinct from changes to the Land Use Element.
City of Napa cannot stand for a general proposition that General Plan
amendments to the Housing Element may be evaluated under CEQA only
insofar as how they change the land use designations and zoning set forth in
the Land Use Element. Such an approach conflicts with 1) state law ensuring
the Housing Element has its own force and effect as a directive on local
agencies to meet housing objectives; 2) planning and zoning laws that envision
general plans of co-equal ‘elements’ to be interpreted harmoniously; and 3)65
judicial direction that “all elements of the general plan have equal legal
status.” Sierra Club v. Board of Supervisors (1981) 126 Cal. App. 3d 698, 708.
See Friends of Aviara v. City of Carlsbad (2012) 210 Cal. App. 4th 1103,65
1111 (Government Code § 65300.5 has been repeatedly construed as requiring
"that the elements of the general plan comprise an integrated internally
consistent and compatible statement of policies.' ")
77
Second, City of Napa emphasized the prior general plan EIR in that case
had analyzed the impacts of the prior Housing Element, which the court found
was not substantially changed by the update. See 221 Cal.App.4th at 203-204.
In contrast, in this case the County is purporting to assess, for the first time, the
impacts of designating a present and future inventory of potential housing sites
required by the 2004 amendments to the Housing Law.
Third, City of Napa never considered the potential impacts that should
be analyzed as part of a Housing Element inventory which includes completed
programmatic CEQA review for over 2,500 units on 49 separate locations.
Instead, City of Napa assessed whether a change in minimum density adding
up to 81 new units might be significant. City of Napa also did not address how
the County’s change in policy on siting dense development in sensitive areas
might have significant impacts, as was previously found by the CWP EIR.
City of Napa addresses a different fact pattern, not involving the new
substantive requirements of the 2004 Government Code Amendments. The
County’s errors of law in this case were not present in the City of Napa
decision. The City of Napa decision cannot stand for the proposition that
Housing Elements are not reviewable under CEQA.
//
//
78
B. THE COUNTY FAILED TO PROCEED ACCORDING TO LAW
IN ASSESSING CUMULATIVE IMPACTS OF THE PROJECT.
Based on the assumption that the 2012 HE was ‘within the scope’ of the
CWP EIR, the SEIR emphatically states that it is not required to consider the
‘cumulative’ impacts of the Project. See AR-16-D326 (“[I]t was not necessary
to revise the cumulative analysis...of the 2007 Countywide Plan EIR.”)
1. SEIR’s ‘Cumulative Context’ Approach Violates CEQA.
Rather than measure cumulative impacts, the SEIR instead states that
the “potential for development of housing on 49 sites in the 2007-2014 and
2014-2022 Housing Element time frames are analyzed in every resource
category and in the cumulative context.” See AR-16-D318 (FSEIR, Master
Response 3) (emphasis added.)
The SEIR shows that what is intended by analyzing impacts in the
“cumulative context” is, as long as the impacts of the “development of housing
on 49 sites” does not exceed the significant and unavoidable impacts already
identified in the CWP EIR, the 2012 HE will cause no additional significant
impacts. This flawed approach is highlighted by the SEIR’s explanation of its
“Checklist” approach for assessing impacts:
A “no” answer does not necessarily mean that there are no potentially
significant impacts of the 2012 Draft Housing Element for that
environmental issue category, but that there is no change in the
significance or severity of the impact since it was analyzed and
addressed in the 2007 Countywide Plan EIR.
79
AR-17-D758 (emphasis added.) Here, the fact that the SEIR will cause
additional, potentially significant impacts is overridden by the prior
cumulative impact findings in the CWP EIR. In place of analysis, the SEIR
simply regurgitates the same statement over and over, on virtually every
resource category, that impacts from the 2012 HE “would not be substantially
more severe” than those “previously disclosed and analyzed in the 2007
Countywide Plan EIR.” AR-17-D750 (emphasis added.) 66
The SEIR’s approach, to analyze impacts in this “cumulative context,”
violates a fundamental CEQA principle that project impacts must be assessed
as to the existing physical environment, and not compared to the theoretical
buildout that may or may not occur in the future. Environmental Planning &
Information Council v. County of El Dorado, supra, 131 Cal. App.3d at 357-
358. This legal error is compounded by the fact that the 2007 CWP analysis
was based on population growth numbers that in retrospect were inflated and
not predictive of future conditions. See Discussion, pp. 62-64, supra.
//
//
This reasoning permeates the SEIR’s analysis. See id., D750-754 (summary66
of impacts), 767 (aesthetics), 786 (air quality), 808-809 (biological resources),
830 (geology and soils), 845 (greenhouse emissions), 891 (flooding hazard),
902 (land use planning), 916 (noise), 927 (population and housing), 935
(public services), 959 (traffic), 978 (utilities and water).
80
2. The SEIR Also Violated the CEQA Rule that Non-De
Minimus Incremental Project Impacts that Add to an
Existing Significant Impact Are Cumulatively Significant.
The record shows there will be incremental cumulative impacts from
the 2012 HE project that will contribute to significant impacts over the next
decades. This can be seen from the SEIR’s traffic analysis, discussed below.
a. Traffic Analysis Example.
The SEIR‘s traffic analysis is the only actual evaluation that goes
beyond the simple presentation of a checklist comparing project sites to the
2007 CWP EIR’s significant impact findings. As such, it demonstrates how
the SEIR’s cumulative impact assessment fails to comply with CEQA.
The SEIR’s analysis compares traffic figures from the 2007 CWP EIR
based on models of the anticipated 2030 population to 1) 2035 estimated
traffic without the project based on newer population data; and 2) 2035
estimated traffic with the project. See AR 17 D947, 955-958. These figures
reveal that 1) 2035 traffic levels will in fact be less than the prior 2030
estimates but in many cases will still have unacceptable Levels of Service
(LOS); and 2) the 2012 HE ‘project,’ as analyzed in the traffic study, will add67
to that existing significant effect in proportions ranging from 3% to 16% at
The CWP and SEIR utilized the accepted CEQA yardstick for measuring67
significant traffic impacts, which considers a Level of Service (“LOS”) E or
F as a cumulative significant effect. See AR-49-A3043; 17-D952.
81
significantly affected roads and intersections. See AR 17 D955, 957.68
b. Traffic Analysis Shows that 2012 HE Will have
Significant Cumulative Traffic Impacts.
Under CEQA, the incremental impacts of a project adding to an existing
significant impact must be considered cumulatively significant, so long as they
are not ‘de minimus’ or negligible. See Communities For a Better Environment
v. California Resources Agency, supra, 103 Cal. App. 4th at 124.
Here, the measured traffic increases would be considered cumulatively
significant under basic CEQA standards. See e.g, Los Angeles Unified School
Dist. v. City of Los Angeles (1997) 58 Cal. App. 4th 1019, 1025 (EIR
inadequate for concluding that a project's additional increase in noise level of
3.3 dBA was insignificant given that the existing noise level of 72 dBA
already exceeded the regulatory recommended maximum of 70 dBA.)69
Exhibit 3.0-35, Row 15 states that a.m. eastbound vehicles per hour (VPH)68
will increase from 773 to 867 due to the Project an increase of 12%, thereby
lowering the LOS from an “E” to an “F”. Exhibit 3.0-36, Row 15 states that
p.m. westbound VPH will increase from 701-817 due to the Project an increase
of 16%, lowering the LOS from a “D” to an “F”. See AR 17 D955, 957.
See also Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App.69
3d 692, 718 ("The EIR's analysis uses the magnitude of the current ozone
problem in the air basin in order to trivialize the project's impact...The relevant
question to be addressed in the EIR is not the relative amount of precursors
emitted by the project when compared with preexisting emissions, but whether
any additional amount of precursor emissions should be considered significant
in light of the serious nature of the ozone problems in this air basin.")
(emphasis added.)
82
The SEIR never gets to this analysis, however, but instead simply
compares the overall traffic figures to the inflated numbers used for the 2007
CWP to find that additional impacts will be insignificant. See AR 17 D959;
Discussion, pp. 63-64, supra. As a result, there is no explanation in the SEIR
of why traffic congestion increases would not be cumulatively significant. 70
c. Impacts on Other Resource Categories.
While the traffic analysis in the SEIR demonstrates that the ‘Project’
being proposed, the 2012 HE, has the potential for cumulatively significant
effects, the SEIR provides scant information about the extent of these
incremental effects on other resources, beyond the conclusory statement that
the 2012 Draft Housing Element “potentially could lead to residential
development at higher densities than analyzed in the 2007 Countywide Plan
EIR, which would result in an increase” in impacts. For these resources, the71
SEIR concludes the impact will be ‘significant’ but not “substantially more
severe than the impact analyzed in the 2007 Countywide Plan EIR.” See e.g,
AR-17-D750-754 (emphasis added.) The SEIR provides no explanation for
This issue worried the Planning Commissioners. See AR 412 P11453-11454;70
at 11453:18-19 (“I mean we have huge numbers here that are in this EIR: 243
units in Strawberry, 320 units in Kentfield.”)
See AR-17-D750 (aesthetics, air quality); D751 (geology and soils); D75271
(hazardous conditions, hydrology, water quality and flood hazards); D753
(noise, population and housing); and D754 (water supply and demand.)
83
how it calculates whether a 2012 HE impact will be ‘substantially more
severe,” nor how that calculation would compare to the standards for assessing
non-de minimis impacts discussed in Communities for a Better Environment
v. California Resources Agency, supra. 72
As discussed, the CWP EIR assumed dense housing must adhere to the
Policy CD-2.3 criteria for HODs in order to avoid significant land use impacts.
Here, the 2012 HE dispenses with these criteria, yet does not consider the
incremental impact that will occur to the affected resources, everything from
streams and wetlands, to floodplains, to greenhouse gas emissions from
relative location to a transport hub. No information is provided by the SEIR
on the Project’s incremental cumulative impacts on these resource areas.
3. The SEIR Failed to Consider the Potential Cumulative
Impacts of the 2012 HE on Different Resource Issues.
Because the SEIR conducted no analysis of the Project’s cumulative
impacts but instead simply referred back to the CWP EIR’s findings, the
See 103 Cal. App. 4th at 117 (proposed CEQA guidelines “would turn72
cumulative impact analysis on its head by diminishing the need to do a
cumulative impact analysis as the cumulative impact problem worsens. The
reason for this incongruity is that the de minimis approach of Guidelines
sections 15064(i)(4) and 15130(a)(4) compares the incremental effect of the
proposed project against the collective cumulative impact of all relevant
projects. This comparative approach is contrary to CEQA section 21083 and
to the Guidelines section 15355 definition of cumulative impacts, set forth
above; this approach also contravenes CEQA case law.”) (emphases added.)
84
examples provided in this section should not be considered as exhaustive, but
merely illustrative of how the SEIR failed to meet CEQA standards.
a. Traffic Impacts.
Besides the errors highlighted above, the SEIR’s traffic analysis suffers
from other problems. It fails to provide any information on existing levels of
traffic, without explanation of why the absence of such readily available
information does not hinder the informational adequacy of the review process.
It provides no data or input numbers on how the future 2035 cumulative
baseline was established, nor how the County’s new P09 Model works. See
AR-17-D947-966. There are no background reports, for example, to explain
the inputs that formed the model’s comparisons between the “With” and
“Without Project” cumulative baselines set for 2035, see id. at D955-958,
D960, D63, or why such a comparison is superior than one comparing the
project to existing conditions on the ground. See Neighbors for Smart Rail v.
Exposition Metro Line Construction Authority (2013) 57 Cal. 4th 439, 451-452
(to use future baseline agency must explain how baseline based on existing
conditions would be “uninformative” or “misleading.”)
Here, at every level, the SEIR traffic analysis fails to meet CEQA’s
requirement of proper procedure and adequate information to ensure a
‘meaningful evaluation’ of project impacts.
85
b. Impacts From Locating HE Parcels in Floodzones.
The SEIR mitigation measures for flooding require the County to
consider the suitability of future projects for development in flood prone areas,
but still allows such development to occur utilizing raised building pads. See
AR-17-D748-D749 (referencing flooding hazard measures 1 & 2). Additional
mitigations are limited to information sharing and future planning exercises.
See id., D749; AR-11- C49-50 (two measures added relating to sea level rise.)
The SEIR’s CEQA findings acknowledge the Project will contribute to
significant impacts due to the location of parcels in flood areas subject to sea
level rise but finds these impacts to be unavoidable. AR-11-C048-50.
This finding is flawed. The SEIR identifies numerous inventory parcels
that will be located within floodzones, but does not analyze how impacts might
be avoided by, for example, not locating units in such areas. See e.g, AR 17
D892-898. Instead, the SEIR repeats that “impacts due to exposure of people
or structures to flood hazards, tsunamis and seiches would remain significant
unavoidable impacts, but would not be substantially more severe...” Id., D752.
The CWP Policy CD-2.3 Policy criteria for HODs prohibit siting of
such dense housing primarily in floodzones. See AR-26-F2409. As discussed,
the CWP EIR findings found adherence to the HOD criteria necessary to avoid
significant land use impacts. See AR-12-C121-122.
86
The 2012 HE present and future housing inventories ostensibly
reviewed in the SEIR will confer legal entitlements to housing projects at the
stated building densities. Thus, the actual effects of developing in these zones
should have been considered. Here there is no analysis of whether ‘building
pads’ are a practical solution to the siting of dense units in areas that may tax
the public coffers in the future due to sea level rise and flooding hazards. The
potential impacts and analysis of locating dense housing in future flooded
areas over the next century is never addressed in the SEIR. 73
c. Impacts Caused by School Overcrowding.
The Project has the potential to cause significant impacts to the Dixie
school district, due to small size and location in an area now planned for up to
746 new additional units within that district. See AR 17 D936-940. The draft
SEIR ignores this issue, which is discussed finally in the FSEIR Master
Response 2. See AR 16 D313-317.
The FSEIR does not bother hiding behind the CWP EIR findings, but
instead relies on a legal argument, that under Senate Bill 50 the County has no
In response to a comment noting that the SEIR should provide alternative73
measures to mitigate flooding hazards, “including avoiding development
investments altogether in areas subject to future sea level rise..” see AR-16-
D351, the County pointed to its Master Response of Sea Level rise, id., D356
(response to comment 8), which however, is simply an explanation of the
current science and promises by the County to develop more specific plans to
deal with sea level rise in the future. See id., D-305-312 .)
87
obligation to consider school overcrowding in its cumulative impact analysis.
See AR-16-D317 (“Leroy F. Greene School Facilities Act of 1998 (“SB 50”)
preempts local jurisdictions from devising their own requirements to mitigate
or otherwise address impacts of new development on school facilities.”)
This approach not to analyze school impacts errs in two ways.
First, SB 50 applies to the County’s consideration of development
approvals, but not to planning documents assessing the overall capacity of
County and state infrastructure to accommodate new growth. SB 50 was
designed to protect specific development projects, to limit the uncertainty for
developers proposing projects. See Govt. Code § 65995(e) (limiting school
related mitigation an agency may obtain on “any land use approval.”)
SB 50 makes sense as applied to a particular land use approval, a
measure clearly intended to ensure confidence in the development process.
There is no evidence, however, it was intended also to apply to broad planning
decisions about where to locate dense housing. The question how school
district capacities affect general planning must be subject to CEQA review.
Second, even if the court were to treat this planning process as subject
to SB 50's restrictions, the SEIR was still required to assess the consequential
indirect impacts of increasing the school district’s enrollment by an estimated
total of 649 students, including the possible locations for construction of a new
88
school and associated traffic impacts. See Chawanakee Unified School Dist.
v. County of Madera (2011) 196 Cal. App. 4th 1016, 1026-1028.
Here, the Master Response concedes that new school construction will
be required, but provides no further analysis how such action will affect traffic
and local services. The SEIR circulated for public review provides no74
analysis on this issue at all, contrary to CEQA.
d. Impacts to Aesthetics.
The SEIR fails to analyze how the increased density housing intended
by the 2012 HE will affect the aesthetics in several ways.
First, the SEIR fails to provide any information about the potential
aesthetic impacts of exempting multi-unit dwellings from the normal height
limits applicable to residential dwellings, as is proposed by Program 1.p of the
2012 HE. See AR-19-E1192; E1126-1128, E1146. Allowing large units to
exceed longstanding height limits in Marin has the potential to substantially
affect the aesthetic character of the County, yet this issue is not analyzed.
See e.g., AR 15 D226 (“The FSEIR accords no consideration to74
accommodating or transporting all of these students. The foreseeable
construction in expanding school campuses within the district would be
concurrent with significant increase in traffic.”) id. (“According to Master
Response 2, Dixie School District has investigated the potential of
constructing a new school at the St. Vincent’s/Silveira site. This will require
transporting children located on the west side of Highway 101 across the
freeway. This represents a potentially significant traffic impact that is not
addressed in the FSEIR.”)
89
Second, SEIR fails to analyze the potential aesthetic impacts of
allowing for affordable housing projects to build at maximum densities on any
residentially zoned land in the County, including in rural residential zones. See
e.g., AR-19-E1146. Whether or not such measures represent sound policy
decisions, the SEIR was still required to look at how these changes might
affect the aesthetics of local communities and the region in general. 75
Finally, the SEIR proposes to adopt design guidelines to avoid the
significant aesthetic effects that may occur. AR-17-D745. However, the SEIR
does not provide draft guidelines, nor any other explanation of what the
guidelines will say or how they will avoid aesthetic impacts, particularly given
the potential densities being designated, with potentially no height limits.
Here, the County has not identified any objective performance standard criteria
that might ensure that impacts would actually be avoided. This approach in
deferring mitigation, without understanding its parameters or how it will avoid
potential impacts, is contrary to CEQA. 76
See 14 Cal. Code Regs, § 15126(a) (“An EIR should also discuss the75
environmental specifics of the affected area...anticipated alterations to
ecological systems; changes induced by population concentrations; and other
aspects of the resource base such as scenic quality.“) (emphasis added.)
See Communities for a Better Environment v. City of Richmond (2010) 18476
Cal.App.4th 70, 92 (“[R]eliance on tentative plans for future mitigation after
completion of the CEQA process significantly undermines CEQA's goals of
full disclosure and informed decisionmaking.")
90
e. Impacts to Biological Resources.
The SEIR identifies numerous parcels that overlap stream conservation
areas or wetland habitats. See AR 17 D810-815. As discussed, this approach
represents a departure from prior CWP policy that required dense HOD sites
to be located away from sensitive resources. See 26- F2408-F2409. The CWP
EIR found limiting sites in those types of habitats would "would reduce
physical impacts due to inconsistency with the recommended criteria to a
less-than-significant level." AR-12-C121-122. Given the different manner in
which the CWP EIR approached this issue, the SEIR cannot rely on it to
assume that any impacts caused by the 2012 HE project to these resources had
already been considered in the CWP EIR.
f. Impacts to Geology and Soils.
A similar story occurs for the project’s impacts on geology and soils.
Here, numerous inventory parcels are potentially affected by unstable soils on
steep slopes, slide areas, liquefaction etc. See AR-49-D831-835. Avoiding
these types of hazards were part of the criteria for the HOD sites in the CWP,
see AR-26- F2408-F2409, yet those criteria are no longer being applied.
The best example of this problem is Grady Ranch, designated for 240
units, a prior development proposal was withdrawn based on geological and
hydrological reports suggesting that building in the area at high intensities
91
carried the potential for numerous adverse effects. The SEIR does not77
disclose the readily available information on Grady that should have been
considered in listing it as part of the 2012 HE housing inventory at a greatly
increased density compared to what was considered in the CWP. See AR-78
291-L9862 (“The County is well aware of these issues...”)
C. THE PROJECT COULD HAVE SIGNIFICANT IMPACTS ON
COUNTY LAND USE AND PLANNING THAT WERE NOT
ANALYZED IN THE SEIR.
Under CEQA “[i]ndirect or secondary effects may include
growth-inducing effects and other effects related to induced changes in the
pattern of land use.” 14 Cal. Code Regs. § 15358(a)(2). (emphasis added.)
Here, the SEIR improperly analyzes impacts to land use patterns in the County.
As discussed above, the CWP EIR found that the Proposed 2005 CWP
Update and HOD program included too many parcels slated for dense
development that did not meet the HOD siting criteria set forth in the CWP.
See e.g., AR 49-A-02876. To avoid impacts to the County’s Land Use
Planning, the CWP EIR adopted Mitigation Measure 4.1-5, so as to “reduce
See e.g, AR 291 L9862-9863 (Comments of Richard Grassetti noting that77
California Regional Water Quality Control Board had specifically called out
these issues of geology, hydrology, water quality, and fisheries as potentially
significant impacts.)
During the HE proceedings, the stated entitlement for Grady Ranch was78
stated as “roughly 40 units.” AR-411- P11321:1. Thereafter, this number was
increased up to 240 units. See id. at P11321:15-17; AR-19-E1171, row 16.
92
physical impacts due to inconsistency with the recommended criteria to a
less-than-significant level” by eliminating HOD sites that do not meet the
HOD criteria. See AR 12-C121-22.
The 2012 HE adopts and implements new policies designed to locate
affordable housing at maximum densities on residentially designated parcels
without abiding by the HOD criteria found to be necessary by the CWP EIR
to avoid significant land use impacts. As noted by public commenters:
[T]he ...site selection strays from the long-standing goals of the county
to provide for development close to transportation and shopping, and
to not segregate future affordable and lower income housing..a casual
look at the sites selected, simply by looking at a map, show many do
not meet any of these goals. To the contrary they dangerously conflict.
Many of the sites are far from the towns, cities, shopping, malls and
transportation. They are distant and disconnected sites that encourage
the inefficiencies, costs, pollution and environmental damage caused by
urban sprawl, and related effects on air and water and other natural
systems, including ecosystems. impacts to land.
AR-16-D603. The SEIR’s only explanation states:
Based on a review of these impact sections in the 2007 Countywide
Plan EIR and on the analysis in this Draft SEIR, residential
development that could occur under the 2012 Draft Housing Element
would not have any new or substantially more severe significant land
use and planning impacts.
AR 17 D756 (emphasis added.)
This is insufficient. The CWP determined that the potential effects of
locating dense housing – Grady Ranch again being the best example as it
occurs away from traffic nodes, within a Ridge and Upland Greenbelt zone, in
93
areas of known streams and wetlands and geological and hydrological hazards
– in non HOD criteria areas would have a significant impact on the integrity
of the County’s land use planning model. AR-12-C121.
The 2012 HE chooses not to utilize Mitigation Measure 4.1.5 for HE
inventory sites, yet the SEIR never explains how consequential impacts will
be avoided on a programmatic planning level. This violates the informational
requirements for an EIR under CEQA.
D. THE COUNTY’S STATEMENT OF OVERRIDING
CONSIDERATIONS ON THE IMPACTS OF THE PROJECT IS
CONTRARY TO CEQA.
Where an agency identifies a significant impact that cannot be reduced
below a level of significance, it may choose to adopt a Statement of Overriding
Considerations (“Statement”) pursuant to Public Resources Code § 21081(b).
For the 2012 HE, the County adopted such a Statement as follows:
Although the 2012 Housing Element will not result in any new or
substantially more severe impacts than analyzed in the 2007 CWP EIR,
the 2012 Housing Element will contribute to significant unavoidable
impacts identified in the 2007 CWP EIR that will remain significant
after implementation of additional feasible mitigation. ... the Board of
Supervisors has determined that the Project should be approved, and
has determined that the benefits of the Project outweigh its unavoidable
adverse environmental effects so that the adverse environmental effects
are therefore "acceptable.
AR-11-054 (emphasis added.) This finding is contrary to law for two reasons.
First, as discussed above, it is not true that the 2012 Housing Element
94
will not result in any new or substantially more severe impacts than analyzed
in the 2007 CWP EIR. The 2012 HE creates the potential for impacts based
on locating dense housing in the County that were never examined in the
CWP, which instead adopted a more restrictive approach under its HOD
program. See AR-12-C121-122. As also discussed, the SEIR’s conclusion that
the 2012 HE would have no impacts itself was arrived at by unlawfully
comparing the impacts of the 2012 HE to the speculative and apparently
inflated impacts evaluated in the 2007 CWP EIR.
Second, due to its conclusions that the 2012 HE would itself have no
significant impacts, the County determined, wrongly, that no alternatives
analysis need take place, as normally would be required for any project with
its own potential for significant effects. Pub. Res. Code § 21002; Federation
of Hillside & Canyon Associations, supra, 83 Cal. App. 4th at 1264.
Without having assessed the feasibility of alternatives that might avoid
the potentially significant effects of the 2012 HE project, the County cannot
find that avoidance of such impacts is infeasible through a Statement of
Overriding Considerations, which must be a document of accountability:
The requirement of a statement of overriding considerations is central
to CEQA's role as a public accountability statute; it requires public
officials, in approving environmentally detrimental projects, to justify
their decisions based on counterbalancing social, economic or other
benefits, and to point to substantial evidence in support.
95
Communities For a Better Environment, supra, 103 Cal. App. 4th at 124.
Here, the County’s Statement does not even acknowledge that the 2012 HE has
the potential for significant effects that were not considered in the 2007 CWP
EIR. Indeed, the concern of Communities For a Better Environment was:
an agency apparently could adopt one statement of overriding
considerations for a prior, more general EIR, and then avoid future
political accountability by approving later, more specific projects with
significant unavoidable impacts pursuant to the prior EIR and statement
of overriding considerations
Here, there can be no accountability where the SEIR’s conclusions on the
‘feasability’ of impact avoidance or reduction are based not on the SEIR’s own
analysis but on the conclusions of an older CEQA document with such limited
relevance to the specific issues posed by 2012 HE.
E. THE DETERMINATION OF WHERE AND HOW TO LOCATE
DENSE HOUSING IN THE COUNTY IS AN IMPORTANT
PLANNING DECISION THAT SHOULD BE DONE
ACCORDING TO APPLICABLE LAW.
The record in this case shows that the 2012 HE generated an enormous
public response, most of it highly critical of how the County handled this
process in general. See e.g, AR Document Rows 259-308 (public comment
letters); AR-16-D325-658 (comments and responses to comments on draft
SEIR); Discussion, pp. 30-32, supra. In short, the record shows that citizens
were informed that 1) substantial changes in land use planning relating to
zoning density in the County were referred to as ‘technical’ corrections and
96
changes by County staff; 2) cumulative impacts allegedly already addressed79
by the CWP EIR were not a proper focus of public participation; and 3) the
potential consequences of certifying the SEIR’s findings that the 2012 HE
would have no significant cumulative impacts were consistently understated.
See e.g., AR-261-8732-8733 (County counsel memo re future streamlining.)
The 2012 HE and SEIR are planning documents with the potential to
cause on-the-ground changes from how the County has regulated and planned
for development in the prior decades. The record shows the County has not
been forthright about the consequences of its legislative actions. The
comments show a public frustrated by the cursory nature of the EIR’s
informational presentation. See Footnote 31, Discussion, pp. 30-31, supra.
Marin citizens strongly believe in and support the County’s efforts to
provide for affordable housing in the County. Citizens also have a right to
expect that the County’s land use planning decisions to implement these
objectives be transparent and comply with applicable state laws. CEQA does
The lack of transparency on this issue was remarked upon by Planning79
Commissioner Greenberg, who stated: “I would maintain that that's a major
policy change. that was not considered before, that putting housing of any
kind, in the RUG at higher than the lowest range of the density allowable, is
something new. It doesn't mean we shouldn't do it, but it does mean, I think,
that it should be noticed and discussed. Anyway, that would be my position.”
AR 420 P12157:10-14 (emphasis added.)
97
not prevent development from occurring, but does require that the government
agency proceed with full information and knowledge as to how potentially
significant impacts to the environment may be avoided.
The core purpose of an EIR is to demonstrate to an apprehensive
citizenry that the agency has in fact considered the ecological and public health
issues relating to its more important planning and project decisions. Without
this trust between the public and its elected officials, progress on the issue of
providing adequate housing for all income levels could become stalled.
If the County truly wishes to be able to ‘streamline’ the future approval
process for high density developments as a way to foster investment certainty,
the best route to that result is a strong programmatic document that provides
real information to the public on the impacts that may be expected, and
adequate findings that could be tiered to in future CEQA proceedings.80
Here, the clear intent of the Government Code and County law is to
require the County to do the analysis for denser housing at the programmatic
The SEIR potentially hurts developers who may encounter solid legal80
challenges when they try to tier to the SEIR on future housing projects, based
on the argument that the SEIR did not in fact look at cumulative impacts in a
meaningful manner. Allowing the SEIR to stay in place may hinder the ability
of developer’s to rely upon prior programmatic review processes to streamline
CEQA and other review processes for specific projects. (On the flip side, the
concern remains that a developer may still tier to the SEIR and get away with
it despite the SEIR’s lack of analysis of the project’s cumulative impacts .)
98
stage, so that developers may rely on carrying worthwhile projects forward
without cumbersome review processes. The County’s approach here muddles
and frustrates this legislative intent, and should therefore not be condoned.
VIII. CONCLUSION
For the reasons set forth above, the Court should reverse the part of the
trial court’s ruling denying Petitioner’s First Amended Petition for Writ of
Mandate in part and remand with instructions consistent with the Court’s
opinion.
DATED: March 9, 2016
By: /s/ Michael W. Graf
Michael W. Graf
Attorney for Plaintiffs
/Appellants/Appellees
99
CERTIFICATION OF WORD COUNT(Cal Rules of Court, Rule 14(c)(1))
The text of Appellant’s Opening Brief consists of 24,633 words, as
counted by the Corel WordPerfect word processing program used to
generate this brief.
DATED: March 9, 2016
By: /s/ Michael W. Graf
Michael W. Graf
Attorney for Plaintiffs
/Appellants/Appellees
100
