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September, 2002

Supe Kinsey and County Undercut
Endangered Species Protections
By Louis Nuyens

On 10 September 2002, Marin County Supervisor Steve Kinsey led the way as the Marin County Community Development Agency (CDA) proposed, and the Board of Supervisors approved, an ordinance that segments and weakens Countywide Plan (CWP) provisions for protections of habitat that support Coho salmon and Steelhead trout.

The action came in the form of an amendment to County zoning code-affecting only conventionally zoned vacant lots-put forward by the CDA as a way to implement Countywide Plan provisions for Streamside Conservation Areas (SCAs) intended to protect wildlife habitat. The amendment was prepared by the CDA at the behest of the Board of Supervisors, primarily Supervisor Kinsey, whose district would be most affected.

According to the CDA, the amendment is needed to enforce provisions of the Countywide Plan; its preamble says that, without the amendment, "owners of [vacant] parcels could seek to develop these parcels with single family homes and/or other structures, improvements, and/or landscaping without any discretionary review by County permitting agencies." By signing off on the amendment as written, County planners and Supervisors have adopted the posture that the County has neither power nor mandate to enforce the parameters of the General Plan except through promulgation of regulations.

But, in fact, the County already has rules on its books which, if enforced, would adequately protect creek habitat and SCAs: the detailed CWP SCA provisions are, themselves, sufficient for enforcement of CDA policies, whether or not they are reflected in zoning codes. The General Plan (or CWP, as Marin's General Plan is often called) is the "Constitution" of the County; all County codes and ordinances are subordinate to the General Plan and must conform to it.

However, the zoning amendment adopted fails to comply with the CWP in many respects. The Marin General Plan (CWP) (Environmental Quality Program EQ-2.3a) states, "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," yet this is not reflected in the new zoning codes amendment. Also, when there is a question as to whether SCA Program requirements are satisfied, the CWP calls for a Development Permit process-usually interpreted as a process involving open public hearings and decision-making-yet the amendment as adopted, calls only for "administrative design review," in which public hearings are not usually performed, and there is no requirement that decisions be made in open public hearings. And the CWP SCA Program is limited neither to vacant lots nor to conventionally zoned lots, nor specific streams and locations.

When local environmentalists expressed concerns about these improprieties, the Board of Supervisors did not reject the zoning code amendment and call for revisions that comprehensively mirror and comply with the CWP. Rather, Supervisor Kinsey, remarking on his commitment to protect endangered species in Marin, called for the CDA to quickly draft a similar zoning code amendment that would apply to non-vacant, developed lots, a move which still fails to adequately reflect the CWP.

The CWP's SCA provisions are detailed and clearly intended as contiguous and overarching. Yet the County is choosing to interpret SCA rules as non-specific guidelines, and to break them up .The County is also assuming the weakest possible interpretation of the CWP.

The approach of replacing the Countywide Plan's straightforward and comprehensive outline with a patchwork of special-case regulations may add to the dysfunction the County currently exhibits in enforcement of environmental regulations. The piecemeal approach taken in the proposed ordinance advances the disturbing trend toward decision-making that is arbitrary, ad hoc, and closed to the public, when it comes to protection of the environment and public safety in West Marin (see, among other things, the Marin Civil 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 the County has still not adequately responded, according to the most recent CGJ reports).

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

According to County Principle Planner Tom Lai, the move toward the zoning code amendment was initially 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."

However, in addition to the idea that anyone familiar with County geography would need a new map to tell them that there are many vacant lots adjacent to critical SCA habitat, the above map is acknowledged to be incomplete, as it does not show all blue line streams and tributaries. This would significantly increase the affected parcels, both vacant and developed, and perhaps create more of a political "homeowner dissatisfaction" factor. So far, no County employee or Supervisor has been willing to comment or accept the statement that the CWP is enforceable without need for zoning code changes. Their silence is profound.

All of these unaddressed issues leave plenty of room for speculation about the motivation and timing of the County's recent actions.

The 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 parts of Marin most affected by CWP SCA provisions. NMFS has been making informal rumblings of dissatisfaction about what they have received in exchange for their grant 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.

According to the preamble of the ordinance, "Under the Federal Endangered Species Act coho salmon were listed as threatened in 1996 and steelhead trout were listed as threatened in 1997. Coho salmon was [this year] listed as an endangered species under the California State Endangered Species Act." It is conceivable that the County of Marin could also be legally held liable under State and Federal environmental protection laws if they allow continued degradation of habitat and detrimental build out of parcels on the creeks in Marin.

A sobering thought: since the Countywide Plan's SCA Program Element is clearly powerful and enforceable without ordinances, what has the County been doing not applying the SCA in the 27 years since written and adopted as Marin County Planning law?

 

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