When Marin County prepared its Housing Element and proposed how much multifamily development should occur in the future, they adopted the "default density” offered by state law.
The default density for Marin is 30 units per acre. Adopting
the default density alleviates the County's need to do any kind of study or
research to support what actual density might be required to fulfill their
obligations under their Regional Housing Needs Assessment (RHNA) quota. In
other words, if a city or county has a lot of potential building sites
available, they could argue that even a density of 10 units per acre would fulfill
the RHNA quota. This would mean that building lower densities would be
justified in their area and HCD would probably have to accept that if the total
RHNA was addressed adequately.
This is essentially what Mill Valley and Novato did. They produced their own analysis to prove that they had plenty of development and rezoning opportunities available to satisfy their RHNA numbers, at lower than 30 units per acre. Accepting the default density for the Housing Element, as the County did, is the lazy man's way to do it.
The recent Marin IJ Voice by Sharon Rushton does an excellent job of explaining all this. And as noted by Glen Campora, Assistant Deputy Director of HCD, in his letter of March 18, 2013 to the Novato Homeowners Association:
“Flexibility was increased in 2004 when Government Code Section 65583.2(c)(3) was amended to provide all jurisdictions the option to adopt the applicable statutory default density deemed appropriate for a rural, suburban, or urban jurisdiction to accommodate housing for lower-income households. “
“In updating its housing element, Novato has the flexibility to choose to (1) provide an appropriate analysis demonstrating how its adopted densities can accommodate development of housing affordable to lower income households or (2) adopt the default density of 30 units per acre.”
This flexibility is quite broad and is particularly important because Marin is presently mis-classified as an “urban” area by HCD, rather than being classified correctly as “rural” and “suburban.” So the efforts by our BOS and County staff, on our behalf, were really needed when the County housing element was crafted. But it appears the County was missing in action. And I wonder, after listening to recent pronouncements of the BOS and County staff, if they even knew they had the option.
Finally, note again that actual rezoning may or may not take place at the time the housing element is approved. But when a developer sees a property on the County's housing element list with a PDA designation, he can pretty much assume that he can build to that density and get that required zoning to do so.
The Builders Remedy
Something that is not been widely discussed in public forums
is that SB375 reversed legal principles of land use and zoning approvals in a
very fundamental way. For as long as I can remember, if a developer came to a
municipality with a development proposal, he was obligated to show why his
project should be approved and how it conformed to the applicable regulations.
But SB375 created what’s called the "builder's remedy," which says that if a development proposal conforms to all the state regulations, including all rights conferred upon it by Housing Element Regulations, SB375, Plan Bay Area, PDAs and TPAs, other state and local laws, it becomes the city's burden to prove why the project should not be approved and granted zoning. And if the city denies the developer the zoning but fails to prove that, it could not only face monetary penalties and restrictions on its zoning and planning capabilities, but it will have to pay the developer's (or housing advocate groups) legal fees for their suit, if it loses in court.
I realize this sounds bizarre, but it is now the law in California. So developers in California can pretty much assume they’ll get an approval when they bring a qualifying high density, TOD project to a city or county.
But wait, there’s more. With existing laws as they are, they can actually assume being able to do much more than just build a project that conforms to the zoning they need.
The State Density Bonus
California instituted a State Density Bonus law in 1979. Its goal was to help create more affordable housing. But consider for a moment the impacts the State Density Bonus law has on TOD in Marin, if given a PDA green light.
A “Reference Guide” published by Kronick Moskovitz Tiedemann & Girard (quoted below) explains that cities and counties are required to grant a density bonus of up to 35 percent additional project square footage (the difference between 30 units per acre and 40 units per acre), and other incentives or concessions to housing projects which contain one of the following:
At least 5% of the housing units restricted to very low income residents.
At least 10% of the housing units restricted to lower income residents.
At least 10% of the housing units in a for-sale common interest development restricted to moderate income residents.
The project donates at least one acre of land to the city or county for very low income units, and the land has the appropriate general plan designation, zoning, permits and approvals, and access to public facilities needed for such housing.
The project is a senior citizen housing development (no affordable units required).
The project is a mobile home park age-restricted to senior citizens (no affordable units required).
In addition to the density bonus, the city or county is also required to provide one or more “incentives” or “concessions” to each project which qualifies for a density bonus. A concession or incentive is defined as:
A reduction in site development standards or a modification of zoning code or architectural design requirements, such as a reduction in setback, floor area ratio, height limits, lot coverage ratios, and/or minimum square footage requirements; or
Automatic approval of mixed use zoning; or
Other regulatory incentives or concessions which actually result in identifiable and financially sufficient cost reductions for the developer.
So far all this is completely stacked in favor of developers. But it gets worse.
A development qualifying for a density bonus also receives two additional forms of assistance which have important benefits for developer’s profits.
Further Waiver or Reduction of Development Standards
If any city or county development standard would physically prevent the project from being built at the permitted density and with the granted concessions/incentives, the developer may propose to have those standards waived altogether or further reduced.
The city or county is not required to waive or reduce development standards that that would cause a public health or safety problem, cause an environmental problem, harm historical property, or would be contrary to law. But the burden of proof of that now falls on the city or county, not on the developer.
As KMTG advises:
“This ability to force the locality to modify its normal development standards is sometimes the most compelling reason for the developer to structure a project to qualify for the density bonus.”
Upon the developer’s request (no proof of public benefit required, just at their request), the city or county may not require more than one onsite parking space for studio and one bedroom units, two onsite parking spaces for two and three bedroom units, and two and one-half onsite parking spaces for units with four or more bedrooms. And this is not just for affordable units but for all the units in the project, even if some reach the multi-million dollar range.
Again, KMTG advises :
“This is one of the most important benefits of the density bonus statute. In many cases, achieving a reduction in parking requirements may be more valuable than the additional permitted units”
Wow! Isn’t this great? For developers, it’s like printing money.
Impacts Are Cumulative
Why does it always feel like the amount of pertinent information that’s left out by our local government presentations dwarfs the rhetoric that we get in its place?
The Supervisors and County Planners seem to be blind to the fact that the provisions of all these laws are cumulative. When you start to look at the enormous cumulative benefits to developers (and impacts on our communities) from SB375, Plan Bay Area, PDAs, TPAs, the requirements to receive certification on a Housing Element, the Default Density rules, the Builder’s Remedy, the State Density Bonus laws, and other regulations, it looks like the Win Cup project is just the beginning for Marin.
Now add to this the CEQA exemptions and CEQA streamlining under SB375, and other recently signed legislation like SB743, which removed all CEQA arguments regarding traffic, aesthetics, levels of service of intersections, as well as the impacts on infrastructure, schools and city services, and made them inadmissible in court, and you can start to get a glimpse of what’s heading our way.
These laws have not only removed a community’s ability to make legal arguments against inappropriate development, but have gone a step further to make it legal to not even inform the public, on a case by case basis, of what is being approved, because the developer’s benefits are now “as of right.”
This is why a PDA designation is not “harmless” and why it most certainly does make actual development more likely, because it’s just the first step in “inviting” all these other possibilities to be realized.
So make no mistake about it, with all this now in place, high density development is unstoppable without immediate, widespread, grassroots opposition and that starts with voicing our concerns to local planners and elected representatives.
Meanwhile Back At the Hearing
During the public comment period on February 25th, the County Supervisors listened stoically, carefully timing each speaker, as streams of Strawberry residents voiced their strong opposition to selling out the future of their community to high density developers for a couple hundred thousand bucks in grant money that would only end up going to pay some overpriced consultant to do yet another study that would benefit no one.
The opposition to the Strawberry PDA was overwhelming; with one resident even pointing out that more residents had signed the petition to remove the PDA than had voted in the last election. By the end, it was clear that the collective effort and intellectual acumen brought to bear by the residents dwarfed the County’s own due diligence. And I would venture to guess that if the average person there was fully aware of all the information presented above, the opposition would have been even fiercer.
The almost unanimous local opposition to the Strawberry PDA was countered by a predictable cacophony of “grassroots” activists, self-appointed environmental experts (whose arguments were state of the art 1972: green good, cars bad), and affordable housing developer cronies (who are funded by MCF, ABAG, developers, and in some cases even the BOS themselves). And amazingly, none of them lived in Strawberry.
Then, of course, there was the bicycle coalition lobby that continues to promote the idea that somehow Marin is going to turn into Beijing and bicycles are about to become the transportation vehicle of choice. Well, it’s a free country. Everyone’s entitled to their beliefs.
At the end of the day the BOS voted to remove the Strawberry PDA, entirely. This was greeted with relief by the residents. The caveat was that Supervisor Sears proposed a “visioning process” for the future of Strawberry, to begin very soon. But the goals, ground rules, and purpose of these visioning sessions was not defined. The sense among many of the Strawberry residents was this was a way of saying that the PDA designation was only gone temporarily, and that Supervisor Sears has not given up on resurrecting it in the future.
The decision by the BOS to remove the PDA was concluded by Brian Crawford, who mumbled something about his having to submit their decision to ABAG, for ABAG’s approval and final determination. This is in spite of the fact that the BOS received a letter from Ezra Rapport, the Executive Director of ABAG, in June of 2013, clearly stating that the BOS has complete discretion at all times as to whether or not any parcel is or is not a PDA, and that ABAG has no authority to approve or disapprove anything about it.
In fact, any municipality has the right to change PDAs, remove PDAs, or add PDAs at any time, now or in the future, without restriction and it is not even tied to the timing of funding. For example, a municipality could create a PDA, take OBAG money for a study or an improvement, do that study or make that improvement, then remove the PDA (thereby removing the attached incentives for developers), and there are no legal consequences of that action stipulated anywhere in any legislation.
It’s Not Black And White
I don’t think that all of the laws and regulations I’ve discussed here are categorically bad, even though cumulatively, they have gone way too far on one direction without providing counterbalancing mechanisms to rein in over-reaching bureaucracies. I just think they were written for big cities like San Francisco, Oakland and San Jose, but are not well suited for Marin’s communities.
But I believe people have a right to choose when it comes to the future of the community they live in and invest so much of their time, money and effort in. That is the definition of local control.
If San Rafael wants to build TOD in their downtown, and that’s what the majority of their residents really want (after they are fully informed and asked directly), then they should be allowed to do so, so long as they’re not negatively impacting their neighboring cities. But if the residents of Strawberry, who already have the highest ratio of rental units to single family homes anywhere in Marin except Marin City, don’t want high density, multi-family development, they should be allowed not to.
The bottom line is this: Regardless of anyone's particular agenda or point of view on these issues, the public has the right to know all the facts that bear on public policy decisions, including all the complexities and gray areas.
Marin County’s Last Big PDA
In the end the public had it right. A PDA designation opens the door to high density, mixed use, transit oriented development. It reinforces the kind of “extractive” development that is going on at the Win Cup/Tamal Vista project, in Corte Madera.
Well-heeled developers come in, take advantage of all the tax incentives, zoning incentives and density bonuses they can get, benefit from all the infrastructure and transportation improvements made with taxpayer money and OBAG funds, then take their profits and leave nothing but negative impacts like traffic congestion, overcrowded schools, overburdened utilities, and in the case of Win Cup, a gigantic eye sore that we all have to look at forever.
Another takeaway from the BOS hearing was that there will now be more funding to go to Marin City PDA. And no doubt Marin City needs many things like the renovation of its senior center and community center for starters.
But residents are told PDA funding can’t be spent on that but rather needs to be used to improve infrastructure, roads, sidewalks and lighting, most of which would benefit to the redevelopment of the failing big box retail center so it can be converted into, you guessed it, high density, mixed use, transit oriented housing.
Some on the Community Services District Board seem to be salivating over this prospect. But a few dissenting voices are emerging in the community, to question that vision. They would like funds to go toward what Marin City really needs, or not have any funding at all. They know that more high density, mixed use, transit oriented development that will amount to upscale gentrification and offer few benefits or opportunities for Marin City’s many low and very low income residents.
It will be interesting to see how that PDA Trojan horse plays out in the coming months.
Beyond Plan Bay Area
One other thing many people found offensive about the February BOS meeting was how the Supervisors sat there and pronounced the hearing a big success because it was proof that democracy worked.
The truth was the exact opposite. Only after massive protest was the BOS dragged kicking and screaming to finally face that they had been dead wrong all along. I think a simple “Sorry, we were wrong on this one. We’ll try better next time,” would have been more appropriate.
It’s becoming clear, even to ABAG that Plan Bay Area has landed in Marin with a gigantic “thud.” Although Plan Bay Area may address the urban problems of San Francisco, San Jose and Oakland, it will never be suitable for places like Marin, Sonoma and Napa.
Perhaps we need a “Marin Plan” or a “North Bay Plan” for Marin, Sonoma and Napa. But until we craft a solution that ensures local control, these battles will only get worse.