Coastal
Post Online
December,
2003
Court Ruling Challenges Widespread County Planning Practices
By
Louis Nuyens
In a victory for local environmentalists
seeking to protect endangered species habitat, Marin County Superior Court
Judge Lynn Duryee has issued a Tentative Ruling against the County of Marin,
the Board of Supervisors and landowner Joshua Hedlund. If allowed to stand, and
if subsequently pursued by Marin environmental organizations, the ruling could
be a cornerstone for widespread changes in County planning practices.
The 7 November 2003 ruling supports claims
that the County failed to adhere to California Environmental Quality Act (CEQA)
regulations, failed to uphold Stream Conservation Area (SCA) policies as set
forth in the Marin County General Plan, and failed to justify their decisions
with acceptable findings of fact.
As a result, the approval of the design review application and issuance
of the building permit were ordered set aside. However, Hedlund's attorney,
Neil Sorensen, a former Marin County planner, stated that they would appeal the
judge's decision. The County of Marin has not yet indicated whether it will
also appeal.
Salmon Protection
And Watershed Network (SPAWN), a west Marin environmental non-profit that
protects and restores habitat critical to endangered aquatic species, brought
the legal action. The Tomales Bay Association (TBA), another west Marin
non-profit, later signed on. SPAWN is fund-raising to cover the costs of the
initial suit and will seek to defend the case through appeals.
Prior to the suit, many groups and
individuals protested the Hedlund development on Lagunitas Creek in the San
Geronimo Valley throughout the entire County process, from the initial
application review through the Planning Commission to the Board of Supervisors
final hearing. Virtually all of the arguments upheld by the Court were made to
the County, but without success, leaving legal action as the only remaining
recourse.
Ruling May Affect Long-Standing County Practices
The ruling calls into question long-standing
County practices. For example, the County has been in the habit of giving
"categorical" exemptions to the vast majority of new homes and home
expansions, even in environmentally sensitive areas. Alleged County failures to
enforce CEQA and the Marin General Plan have been frequent complaints of
government watchdogs and citizens.
The County of Marin has traditionally used the "categorical"
exemption provision of CEQA as a catch-all to move single family home
applications along. The County found the proposed Hedlund project to be
"categorically exempt from the requirements of the California
Environmental Quality Act (CEQA) pursuant to 14 Cal. Code Reg. § 15303
"because the construction of one single family residence on a legal lot
would not create adverse environmental impacts." Essentially, this
argument depends on the idea that one more house will almost never add a
significant impact relative to the impact created by existing development. But
it fails to account for cumulative impacts (of all the previous developments,
plus the new one, with an eye toward the impacts of future development), which
CEQA requires.
Judge Duryee
found that "the county erred procedurally and substantively in concluding
that this project is categorically exempt from CEQA review" and "the
manner in which it (the Marin Community Development Agency (CDA)) arrived at
that decision was in violation of CEQA, and constitutes an abuse of
discretion." Duryee then set aside approval of the Hedlund application and
building permit, effectively denying the development for the time being.
Marin
County General Plan Is Enforceable Law
The second cause of action was the violation of General Plan SCA
Policies. The SCA Policies include specific directions for certain planning
situations that arise; these include provisions for dealing with development
entirely within the 100-foot buffer zone of the SCA (see related archived
Coastal Post articles, available on HYPERLINK http://www.coastalpost.com
www.coastalpost.com), which was directly applicable to the Hedlund
project.
A third cause of action
for the lawsuit was listed as the County's failure to make findings in support
of its decision – or failure to cite facts to justify their positions.
Judge Duryee found that overall, "The
CDA's implied finding that no exception to the exemption exists is not
supported by substantial evidence in light of the whole record, and it was an
abuse of discretion to so find."
Cumulative Impacts Apply
Cumulative impacts of past, present and
future development must be considered in project approval under both CEQA and
the County General Plan Policies, yet have been routinely ignored in the County
planning processes.
The
plaintiff's lawyer, Michael Graf of San Francisco, stated in the petition,
"The approval of this project (Hedlund), in combination with past, present
and foreseeable future development has the potential for significant impacts on
water quality in San Geronimo Creek and on listed salmonids whose long term
survival along the Central California Coast is in jeopardy."
Again, Judge Duryee concurred, "The
creeks in San Geronimo Valley were expressly designated as areas of critical
concern and were precisely mapped by federal and local agencies, after noting
endangered fish and habitat had been degraded by unrestricted past development,
and which habitat is particularly sensitive to the effects of the construction
and population, e.g., decreased groundwater, pollution from construction, and
residents, subsidence of banks and siltation from unnatural runoff,
etc."
Mitigations Do Not Obviate CEQA
The ruling acknowledged the developer's
efforts to mitigate significant environmental impacts, but observed that those
efforts do not pre-empt the need to follow CEQA guidelines. The subtext is that
mitigations do not adequately assure that all potential impacts have been
rendered null without CEQA evaluation to determine whether the mitigations
proposed are adequate to allow a development to continue.In addition, the
ruling took as oxymoronic the County's claim that mitigations had been made
that negated the need for CEQA review: "To allow the County to exempt a
project after concluding that the adopted and proposed mitigation measures
would eliminate any adverse impact, renders the concept of 'categorical'
exemptions meaningless."
A Motivation for Change
While not terribly different from many
other projects, the Hedlund project – a large house (4 bedrooms with a 5-car
garage) on a small lot right on top of creek – caught the attention of West
Marin environmentalists as an archetypical example of County failures to abide
by CEQA and the County General Plan. However, the ruling could affect a wide
range of projects, currently and in the future.
The ruling on the litigation brought by SPAWN and TBA has
demonstrated that the County of Marin can be held legally accountable for
upholding and enforcing existing laws and policies in areas in which the County
has been historically lax.
If
successfully defended in the appellate court, and adequately pursued by
subsequent environmentalist actions, Duryee['s ruling could herald a more
attentive era at the County of Marin. The County may now have to review its use
of the "Categorical Exemption" for single-family home development,
its consideration of cumulative impacts, and its interpretation of its duty to
enforce the provisions of the County General Plan in the absence of subordinate
County Code regulations.
The
County Planning Commission and the Board of Supervisors may be less able to
ignore the natural features of a parcel or regulatory habitat protections. They
must base their decisions on fact to justify heretofore unsubstantiated,
sometimes apparently arbitrary positions.
Finally, as a logical extension in this line of thinking, the
question has been raised as to whether some form of mitigation is always enough
to allow a development to continue; and to what degree the project should also
fit into the themes of General and Community Plans.
The Bottom
Line
This ruling validates key
positions of critics of County planning practices and carries the potential to
be a fulcrum for widespread changes in those practices. However, much will
depend on the results of legal appeals, the County's choices in responding to
the court's position, and the ability of watchdogs to pursue follow-up legal
action.