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Coastal Commission approves land use plan for Marin LCP update -- but with unfinished business

Martha Bridegam on
May 20, 2014

[5/21/14: This article has been updated and corrected following further comments from Jack Liebster of Marin County.]

It wasn't on the epic scale of the Santa Monica Mountains fight, but the Coastal Commission heard passionate arguments about farmers' development rights for most of May 15 before approving a revised Marin County land use plan.

Despite that approval, the meeting ended with two or three big battles still left to fight before the 1981 Local Coastal Program will be fully revised: the specific zoning laws and ordinances of the implementation plan are deferred to a meeting later in the year; the Commission agreed to await a study to rule in detail on preparations for sea level rise in coastal low-lying settlements; and environmentalist objectors may still file suit over an alleged lack of cumulative-impact CEQA analysis for the effects of changed land use rules.

Centrally debated at the meeting was a broadened definition of principally permitted uses for "agriculture", both allowing more construction approvals and insulating some of them from the right of appeal to the Coastal Commission by defining them as "principally permitted uses".

On a social policy level, the question was whether allowing more development rights on farms would help existing farm families and farming practices maintain continuity, or whether it would encourage luxury "hobby farms" to supplant productive agriculture.

The "agriculture" definition, as approved, allows clusters of homes including "intergenerational homes" to reach 7000 square feet, plus 540 for garage and 500 for office space. Since most existing farmhouses are modest older structures, that allows generous room to build a second or even a third house. The right to build out, however, is not absolute: for example, the clusters are allowed per farmer, not per buildable lot, and second "intergenerational homes" are a conditionally permitted use.

Prior housing approvals in West Marin's C-APZ Coastal Agricultural Production Zone have been sleepy: Jack Liebster, principal planner with Marin County's Community Development Agency, said the county had only approved 13 homes in the C-APZ zone since 1987. Those 13 are distinct, however, from approvals in the coastal "villages" and nearby areas not zoned agricultural. Those, he said, might have had "a couple hundred" housing approvals in the same time.

As approved, the land use plan authorizes further residential and other small-scale building on farm property in the two-thirds of the coastal zone regulated as agricultural. Proponents argued that newly authorized "intergenerational homes" (not necessarily required to house blood relatives) would allow farm owners, many of whom are aging, to keep family members -- potential successors -- in the farm environment even if they didn't always work in agriculture. Liebster, in an interview, said some of the local farm families went back six generations "and they want to stay on their land. You don't do farming for any other reason than, you love it, because it sure doesn't make a lot of money."

Opponents, however, argued that the ability to build "intergenerational" homes as principally permitted uses on the property -- and, as a conditional use, second "intergenerational" homes on larger parcels of 180 acres or more -- would create incentives to spin off 120- or 180-acre sections of active farms to serve as "estates" or "mini-mansions" for gentleman-farmer luxury purchasers who might not take agricultural production seriously. A comment letter from the West Marin Environmental Action Committee (EAC) further suggested "it could serve as a disincentive to continue Williamson Act contracts."

Rancher Sally Gale, speaking in public comments, supported the plan, saying it was pro-agriculture and "agriculture supports the environment." She praised the authorizations for intergenerational homes, small processing facilities as "principally permitted uses", and on-farm retail sales, saying all contributed to keeping the next generation in farming. She only would have preferred that paid farm tours be allowed without making them conditional uses.

The rules as passed authorize exceptions to the buffer zone distances around watercourses. But Amy Trainer of EAC told the Commission that experienced environmental activists knew the tendency of such an exception, once allowed: "It will become the rule; it's meant to."

As to affordable housing, Liebster said "The LCP is obviously not a housing element or an affordability plan. However we did make provisions for removing barriers to farmworker housing," in compliance with state legal requirements to leave farmworker housing out of density calculations. He said farmworker housing would be allowed up to 36 beds in group living quarters per legal lot, or 12 units or manufactured housing spaces, so long as it serves people working directly on the farm where they live or at nearby farms,  Bed and breakfast rentals on farms, however, are conditional uses.

Even in inland, eastern Marin -- targeted for denser population since the 1973 General Plan -- Liebster said Marin County finds it painfully difficult to create affordable housing.

In public comment at the hearing, Kim Thompson, executive director of the Community Land Trust Association of West Marin (CLAM), said the county suffers from "significant underproduction of housing" and displacement had worsened in the last two years, including due to Internet-mediated short-term rentals competing with long-term tenants. "We have perpetually internally displaced families and singles," she said. Requesting a show of hands, she asked, "Who is concerned about affordable homes? Anybody?" Hands went up. She thanked them. And her two minutes to comment were over.

County staff and Commission chair (also Marin County Supervisor) Steve Kinsey noted at the meeting that although "principally permitted use" project approvals generally would not be appealable to the Commission, some appeals would be available as of right in areas of statewide interest, such as buffer zones near Environmentally Sensitive Habitat Areas (ESHA) and coastal zones nearest the shore -- but Trainer, who was a leading organizer against the new "agriculture" building rights, said those areas would be a small proportion of the whole. "It's a rollback absolutely," she said in an interview. "This is a terrible statewide precedent that the commission removed from itself oversight over parts of two-thirds of Marin's coastal zone."

Liebster responded on May 21 that decisions in large areas of the zone are appealable to the Commission: "It's a big area and in fact we tried to measure it and it's like, more than 11,000 acres out of the 30,000 acres that the Coastal Commission estimates is in the C-APZ zone." He said "that includes all of the wetlands and streams in primary sensitive habitat areas."

In other areas, where a principally permitted use right was invoked for a project, appeal above the county level would be by writ petition directly to the courts.

But Trainer's letters and several speakers' public comments emphasized the Commission's function as an institutional check on local action. Trainer told the Commission at the hearing: "Do your job as the gatekeeper."

Trainer further saw the county as failing to perform needed CEQA analyses, both individual and cumulative, with findings of fact, analyses of changes and offers of alternatives and mitigation measures, on the potential effects of the new land use plan. On the Sunday after the meeting she said, "If the county does not do the CEQA analysis: the individual and cumulative impact analysis required by law, then we're going to have no choice but to file a lawsuit."

An EAC comment letter from Trainer before the meeting said the local coastal plan revision "is supposed to be the 'functional equivalent' of an EIR," but contended it had yet to comply with requirements under CEQA Guidelines 15091 to reach findings needed to "prevent or minimize environmental damage".

Liebster responded to Trainer's comments on May 21 saying, "There are two ways to achieve the goals and standards of CEQA. One is to write an independent EIR. The other is to put a program or project through the process of an agency that applies strict environmental rules to that program or process. And that's what the functional equivalent is."

The initial Coastal Commission staff report prepared for the meeting referred to provisions of Cal. Public Resources Code 21080.5 and 21080.9 that exempt local government from the requirement of an EIR under CEQA for the preparation of a local coastal program, but that require the Commission to find that approval of the amendment conforms to CEQA. 

The Commission report acknowledged that "the amended LUP will not be approved or adopted as proposed if there are feasible alternative or feasible mitigation measures available which would substantially lessen any significant adverse impact which the activity may have on the environment." But it stated: "In this particular case, all of the proposed amendments are being approved as submitted. Thus, there are no feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse impact on the environment. Therefore, the Commission finds the subject LUP, as amended, conforms with CEQA provisions."

(The term "functional equivalency" is sometimes used to refer to the CEQA Guidelines 15251 exemptions for specified regulatory processes including LCP preparation. The phrase does not appear in the main text of the regulation but presumably derives from the rule's discussion notes, which Liebster cited. Per a 2002 California Research Bureau report, "Are 'Certified Regulatory Programs' Functionally Equivalent to CEQA?" the discussion notes read, "Certification of a program formally recognizes that an environmental analysis undertaken in compliance with the certified program is the functional equivalent of a CEQA analysis." See https://www.library.ca.gov/crb/02/05/02-005.pdf. Section 15251 of the guidelines is at http://bit.ly/1jtvCbY and 15091 is at http://bit.ly/1sVC4JP. Public Resources Code 21080.5 is at http://bit.ly/1sVA5Fj.)

Long memories at public comment

Powerful suspicions and long memories characterized many anti-development public comments.

Gerald Meral, recently retired deputy resources secretary for California, said the new housing on farms wasn't really restricted to farm family members and wouldn't likely address the affordable housing crisis because it would provide just a few units, far from amenities like grocery stores. Like many speakers, he said he'd been among those who helped in the original campaign for Proposition 20, the founding ballot measure for the Coastal Act. And like many, he expressed concern for the public right to appeal decisions to the Commission.

Speaker Alden Bevington of West Marin, identifying himself as a systems analyst, said "If I were a developer, and I've worked with a number in my career, I could game this system as it is now proposed." He warned the Commission not to underestimate "the power, tenacity, and, um, legal departments of development capital protecting its interests."

The most irritable disputes turned on specific numbers of houses that would be permitted, particularly on the origins of a calculation widely mentioned by speakers: that the new rules would allow construction of 129 more homes -- called by some speakers "mini-mansions" -- creating 1 million potential square feet of construction.

A widely distributed email text, attributed to Sierra Club members, reportedly had emphasized the million square feet and the concern about appeal rights in a way some found alarmist.

By Liebster's calculation, 83 legal lots existed where houses could be built for the first time, and 27 more sites existed for possible "intergenerational homes."

Trainer provided slides to explain the 129-unit figure. One of these, drawing on a January 2013 Board of Supervisors staff report, counts up 83 possible new farmhouses, 15 "first" intergenerational units, and 31 additional units that would further be allowed by a zoning density of one unit per 60 acres. Supposing other restrictions such as Williamson Act contracts were lifted, the same presentation increases the potential count of units to 263, and the caption speaks of a million possible square feet.

In an interview, Liebster, considering the figures a little differently, agreed it was possible to arrive at a future maximum buildout total of 1 million square feet, but he said even so that would represent only 0.075% of the "C-APZ" coastal agricultural zone's land, and that maximum buildout would be unlikely to happen "within our respective lifespans."

After a debate within its afternoon deliberations, the Commission chose not to defend the foggy Marin Coast preemptively against the (currently theoretical) menace of vineyards and tasting rooms. Although the weather and soils currently make the Marin coast unsuitable for viticulture, speakers didn't rule out the chance that, between climate change and growers' innovations, someday the area could be growing grapes.

Commissioner Dayna Bochco's motion, defeated 7-5, would have distinguished vineyards from other agriculture as a conditional use, not a principally permitted use. "Viticulture is different than any other kind of farming," she said. "I don't care if it's orange trees or mushrooms or any other kind of use. Viticulture is its own world." But other speakers suggested if grapes could be singled out for different treatment, so could any other crop.

For development sites on bluffs, the Commission adopted a strict rule based on Southern California experience: pick a spot that will not fall into the sea for a century, even without a seawall to protect it. However they agreed to wait for a study before issuing detailed rules to address sea-level rise in low-lying areas like Stinson Beach.

On coastal construction rules, Liebster said afterward, "most of these have been forged in the crucible of conditions on Solana Beach in San Diego County," where development near the edges of eroding bluffs is the issue. For Marin, he said, the Commission agreed to consider the different issue of low-lying settlements in the form of a future expected amendment. The county has grants for its study on the matter of $200,000 from the state Ocean Protection Council and $54,000 from the Commission, he said. As a stopgap measure, he said for now the Commission had adopted a rule to raise new construction, including substantial renovations, a yard above the level marked by FEMA as the area's current Base Flood Elevation.

Liebster called the approach to sea level rise in a place like Stinson Beach "really a difficult problem... I can't even visualize the answer at all, so it's going to take a lot of creativity to do this." Houses could be raised on stilts, he noted, but how would they be reached? Where would cars park?

For its May meeting the Commission was surrounded by a distinctive West Marin sense of context and place. Meeting in the town of Inverness on the Point Reyes peninsula, fed Hog Island oysters at an evening reception, and led by West Marin's own county Supervisor, current Commission chair Steve Kinsey, the Commission heard local public commenters speaking vigorously on and for their familiar home ground.

The meeting could be less locally rooted when the Commission hears the implementation plan proposal that must also be approved to clinch Marin's Local Coastal Plan (LCP) revision. Having originally meant to hear and approve the whole LCP at Inverness, the Commission agreed about six weeks beforehand (according to Trainer) to split off the implementation plan for later review. The timing of the implementation plan hearing could be difficult, as the Commission's next meeting within easy driving distance is many months ahead: November in Half Moon Bay. Trainer suggested the meeting would likely be sooner but far out of town; Liebster was looking as far ahead as the December meeting, which will be set somewhere in the Bay Area.

Showers of last-minute paper descended in the form of last-minute addenda, and then several supplemental votes on Commissioners' motions. It left all sides in cleanup mode, still trying to work out days later what exactly had been approved.

The plan directly addresses coastal areas not governed by Marin's two large federal parks landholders, the Golden Gate National Recreation Area and Point Reyes National Seashore, though the federal areas may be affected indirectly by the Commission's power to enforce consistency in land management throughout the area. The land use plan, for example, does not directly affect the Drake's Bay oyster farming dispute, which concerns a federally managed area of Point Reyes.

The meeting's agenda, which now appears with annotations showing Commission decisions, is at http://www.coastal.ca.gov/meetings/mtg-mm14-5.html.