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September, 2002

Urgency County Ordinance Could Be a Facade
By Louis Nuyens

The "Interim Urgency Ordinance for the Stream Conservation Area (SCA)," originally passed for 45 days on 4 June 2002 (Ord. 3346), was extended by the Marin Board of Supervisors for another ten months and 15 days as of 23 July 2002 (Ord. 3349).

The stated purpose of the urgency ordinance is to protect Marin's creek habitat while County planners work to fashion amendments to the zoning code that would subject new developments on conventionally zoned vacant lots by important creek habitat to administrative design review, "to insure that the development would minimize impacts to the fish consistent with the Countywide Plan Stream Conservation Area and the Endangered Species Act."

The ordinance places a temporary moratorium on County issuance of new building and grading permits on, "All vacant, conventionally zoned property adjacent to Anadromous Fish Streams and Tributaries in the City Centered and Inland Rural Corridors as specified on the map entitled "Marin County Anadromous Fish Streams and Tributaries" and accompanying database entitled "Vacant, Conventionally Zoned Properties in the City Centered and Inland Rural Corridors," which are on file in the Community Development Agency." County planners say approximately 160 parcels are affected, primarily within the San Geronimo Valley.

According to County Principle Planner Tom Lai, the new actions were motivated by a new map, entitled, "Marin County Anadromous Fish Streams and Tributaries," produced by the County in consultation with the California Department of Fish and Game, on which, "it became apparent that there are numerous properties that are undeveloped and conventionally zoned adjacent to these streams."

The action was initially praised by several environmental organizations, but also criticized, by those same groups, for applying to new construction only on vacant lots, and only to lots that are conventionally zoned, and for being based on a map that does not yet include many tributaries and therefore might not identify all relevant parcels.

A Tool For Selective Enforcement?

The curious thing about the ordinance, aside from the idea that anyone remotely familiar with County geography would need a new map to tell them that there are many vacant lots adjacent to critical habitat, is that the County already has rules on its books which, if enforced, would adequately protect creek habitat and SCAs.

The Marin General Plan is the "Constitution" of the County; all County codes and ordinances are subordinate to the General Plan and must conform to it. According to the Marin General Plan (Program EQ-2.3a), "Proposals [development permit applications] which do not conform to Stream Conservation policies, and which cannot be modified or mitigated so that they do conform, shall be denied."

A conflict between the General Plan and the County's recent actions is readily apparent: the General Plan is limited neither to vacant lots nor to conventionally zoned lots. While repair or reconstruction of existing structures is allowed, as are certain other limited uses, creation of new structures would not usually be permitted even on parcels that already have existing structures.

Another example of apparent inconsistency between County intentions and the General Plan is the property at 6451 Sir Francis Drake in San Geronimo, and owned by Josh Hedlund, which was exempted from the urgency ordinance since permit applications had already been filed. The Hedlund property is entirely covered by the precepts of the General Plan pertaining to SCAs. Yet, until noticed by local environmentalists, the County seemed ready to approve the proposed project-new construction of a huge four-bedroom residence, including septic system, situated within the SCA-as if virtually no SCA requirements were applicable. Even after SCA requirements were pointed out, County planners have defended the project as though the County had neither power nor mandate to enforce the provisions of the General Plan.

If the code amendments created by County planners during the urgency ordinance period are limited to conventionally-zoned vacant lots, then those amendments will be in conflict with the General Plan, essentially masking key provisions of the General Plan. The same would be true if the proposed amendments support the lackadaisical approach taken to enforcement of many building, zoning, public health and environmental regulations, taken by the County in recent years-(see, among other things, the Marin Grand Jury (CGJ) report entitled, " The Failure of Management of the Environmental Health Services Division of the Community Development Agency-A Crisis for Marin County" (June, 2000), to which, according to the most recent CGJ reports, the County has still not adequately responded).

Questions also remain as to whether the intention of County planning staff, in crafting protocols for ensuring conformity with SCA requirements as a 'design review' step in zoning codes, rather than as a requirement for a full development permit application (as stated in General Plan SCA requirements), would limit the County's position in enforcing General Plan requirements, and as to whether 'administrative' review would undesirably limit public participation in key areas of seeing SCA rules enforced.

At first glance, the direction of the County seems to be a piecemeal approach to following the General Plan; one that seems designed to result in selective enforcement of the General Plan SCA provisions.

Purpose and Timing

Speculation as to the purpose and timing of these actions might contain many possibilities.

The Findings language motivating the urgency ordinances centers substantially on FishNet 4C, a six-county project, funded by the National Marine Fisheries Service (NMFS), and chaired by Steve Kinsey, who is also County Supervisor of the areas affected by the ordinances. NMFS has been making informal rumblings of dissatisfaction about what they have gotten for their money from FishNet 4C. In addition, Supervisor Kinsey has a clear record of flouting enforcement of public health and environmental protection regulations in West Marin, including allegedly playing a lead role in the purge of key personnel in the County Environmental Health Services (EHS) department, in his first term, which has left EHS in disarray to this day. It might be that the sudden interest in a show of protecting Marin's creek habitats is a maneuver to shore up the role of Supervisor Kinsey, or the role of the County of Marin, in FishNet 4C.

Once County planners have released their proposed amendments, it may also be clearer whether the intent of their work is to minimize or frustrate the intent of Marin's General Plan, or to limit public participation in decisions related to enforcement of SCA requirements.

 

 

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