IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION ONE APPELLANTS OPENING BRIEF

Transcription

1 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION ONE APPELLANTS OPENING BRIEF MARIN COMMUNITY ALLIANCE, an unincorporated association, and MEEHYUN KIM KURTZMAN, an individual Plaintiffs/Appellants/Cross-Appellees, vs. COUNTY OF MARIN Defendant/Appellee/Cross-Appellant APPELLATE NO. A Marin County Superior Court Case No. CIV Judge: Roy Chernus Michael W. Graf (SB No ) Law Offices 227 Behrens Street El Cerrito, California Tel: (510) Counsel for Plaintiffs/Appellants/Cross-Appellees

2 TABLE OF CONTENTS Page I. INTRODUCTION AND SUMMARY II. RULE 8.204(a)(2) STATEMENT III. ISSUES PRESENTED IV. LEGAL BACKGROUND A. THE HOUSING ELEMENT IN THE GENERAL PLAN Requirements for Housing Element a. Establishment of Regional Housing Needs Allocation b. Required Components of Housing Element Housing Inventory Requirement a. Legislative Restrictions on Agency s Discretion to Regulate the Density of Housing Element Inventory B. REVIEW OF PLANNING DECISIONS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT ( CEQA ) V. FACTUAL BACKGROUND A. COUNTY S 2003 HOUSING ELEMENT AND SUBSEQUENT ADOPTION OF A NEW COUNTYWIDE PLAN IN Countywide Plan s Direction for Locating Residential Housing a. CWP Addresses Locations of Dense Housing Through Establishment of Housing Overlay Designation b. Housing Chapter Establishes Aspirational Goals for Affordable Housing c. Relationship Between 2007 CWP, the 2003 Housing Element, i

3 the HOD and the County s Obligation to Meet Regional Housing Needs Allocation Countywide Plan EIR a. Impact Analysis of Full Buildout b. Impact Analysis for HOD Designations in CWP B. ADOPTION OF 2012 HOUSING ELEMENT Zoning and CWP Amendments to Implement Housing Element Direction Adoption of 2012 Housing Element With Supplemental EIR Housing Element Housing Element Supplemental EIR Marin Public Frustrated by Housing Element Review C. PROCEDURAL HISTORY OF LITIGATION VI. STANDARD OF REVIEW A. AGENCY S FAILURE TO PROCEED ACCORDING TO LAW B. COURT MUST TAKE A HARD LOOK TO DETERMINE IF SUBSTANTIAL EVIDENCE SUPPORTS THE SEIR OR THE COUNTY S FINDINGS C. REVIEW STANDARD FOR WHETHER THE 2012 HE FALLS WITHIN THE SCOPE OF THE CWP EIR S CEQA REVIEW Questions Regarding the Proper Scope of CEQA Review are Matters of Law to be Determined by the Court Even if the Court were to Follow Mani Brothers in this Instance, the County Has Committed Procedural Errors in Determining that CEQA Guideline Section Applies ii

4 3. Even Under a Substantial Evidence Test, the County Has Still Abused its Discretion VII. ARGUMENT A. THE COUNTY FAILED TO PROCEED ACCORDING TO LAW WHEN IT BASED ITS CEQA ANALYSIS OF THE 2012 HOUSING ELEMENT ON A SIMPLE COMPARISON TO THE ESTIMATED IMPACTS OF BUILDOUT IN THE CWP EIR The 2012 HE is a Project Reviewable Under CEQA a. Government Code Requires the County to Adopt an Inventory of Planned Locations and Action Program for Meeting its Housing Obligations b. The Designation of Housing Inventory Locations Confers Legal Rights Affecting the Pattern of Future Development in the County c. The County s CEQA Review of 49 Site Locations As a Means to Implement the 2012 HE Policies to Streamline Review for Future Dense Housing Projects Also Confers Legal Rights The 2012 HE Does Not Fall Within the Scope of the CWP Project that Was Covered by the CWP Programmatic EIR a. Program EIRs and Tiering Under CEQA b. Issue is Whether the CEQA Review of the 2012 HE Was Within the Scope of the CWP EIR c. The SEIR Analysis for the 2012 HE Does Not Fall Within the Scope of the CWP Analysis (1) The 2012 Housing Inventory Identification and CEQA Review of 49 Specific Sites Does not Fall within the Scope of the CWP EIR s Analysis of General Plan Buildout iii

5 (a) CWP EIR s Buildout Analysis is at a Lower Tier of Review as That Required for the Housing Element Inventory (b) Buildout Numbers Relied on in CWP EIR Were Inflated (2) The 2012 Housing Inventory and CEQA Review of 49 Specific Sites Also Does not Fall Within the Scope of the CWP EIR s Analysis of the CWP s Housing Overlay Designation (a) (b) The Housing Inventory Sites Comprise Many More Units and Sites than the HOD Analyzed in the CWP EIR The 2012 HE Housing Inventory Sites are Not Limited by the Criteria Found Necessary by the CWP EIR to Avoid Significant Impacts The 2012 Housing Element Implements CWP Policies and Thus Must Have its Own Review Under CEQA The County s Reliance on the CWP EIR s Alternatives Analysis for its CEQA Review for the Project is Improper This Court s Decision in City of Napa is Distinguishable B. THE COUNTY FAILED TO PROCEED ACCORDING TO LAW IN ASSESSING CUMULATIVE IMPACTS OF THE PROJECT SEIR s Cumulative Context Approach Violates CEQA The SEIR Also Violated the CEQA Rule that Non-De Minimus Incremental Project Impacts that Add to an Existing Significant Impact Are Cumulatively Significant a. Traffic Analysis Example b. Traffic Analysis Shows that 2012 HE Will have Significant Cumulative Traffic Impacts iv

6 c. Impacts on Other Resource Categories The SEIR Failed to Consider the Potential Cumulative Impacts of the 2012 HE on Different Resource Issues a. Traffic Impacts b. Impacts From Locating HE Parcels in Floodzones c. Impacts Caused by School Overcrowding d. Impacts to Aesthetics e. Impacts to Biological Resources f. Impacts to Geology and Soils C. THE PROJECT COULD HAVE SIGNIFICANT IMPACTS ON COUNTY LAND USE AND PLANNING THAT WERE NOT ANALYZED IN THE SEIR D. THE COUNTY S STATEMENT OF OVERRIDING CONSIDERATIONS ON THE IMPACTS OF THE PROJECT IS CONTRARY TO CEQA E. THE DETERMINATION OF WHERE AND HOW TO LOCATE DENSE HOUSING IN THE COUNTY IS AN IMPORTANT PLANNING DECISION THAT SHOULD BE DONE ACCORDING TO APPLICABLE LAW VIII. CONCLUSION v

7 Cases TABLE OF AUTHORITIES Page Association of Irritated Residents v. County of Madera (2003) 107 Cal. App. 4th Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, , 46 Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal. 4th Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th , 62, 70 Chawanakee Unified School Dist. v. County of Madera (2011) 196 Cal. App. 4th Communities For a Better Environment v. California Resources Agency (2002) 103 Cal. App. 4th , 82, 84, 95, 96 Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, County of Amador v El Dorado County Water Agency (1999) 76 Cal. App. 4th Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal. App.3d , 6, 35, 41, 44, 62, 64 Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal. App. 4th , 95 Fonseca v. City of Gilroy th (2007) 148 Cal. App , 9, 10, 47, 48 Friends of Aviara v. City of Carlsbad (2012) 210 Cal. App. 4th Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d , 39 vi

8 Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal. App.4th Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d Koster v. County of San Joaquin (1996) 47 Cal. App. 4th , 60 Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th , Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal. App. 4th Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d , 13, 33, 35, 71 Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal. App. 4th Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th , Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal. 4th Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th , 37 Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th vii

9 Sierra Club v. Board of Supervisors (1981) 126 Cal. App. 3d Sierra Club v. State Bd. of Forestry (1994) 7 Cal. 4th Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal. App. 4th Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, , 34, 41, 42 Statutes Govt. Code Govt. Code Govt. Code 65302(a) Govt. Code 65580(a)-(b) Govt. Code Govt. Code 65583(a) , 48 Govt. Code 65583(a)(3) , 9, 10, 11, 44, 47, 48, 50, 51 Govt. Code 65583(b) Govt. Code 65583(c) , 49, 58 Govt. Code 65583(c)(1) Govt. Code 65583(c)(3) , 54 Govt. Code (b) Govt. Code (c) Govt. Code (c)(A) Govt. Code (c)(B)(iv) Govt. Code (h)-(i) Govt Code Govt. Code 65884(a)(1) Govt. Code 65884(d)(1) Govt Code Govt. Code 65863(b) , 11, 26, 45, 47, 50 Govt. Code 65995(e) Pub. Res. Code 21000(g) Pub. Res. Code , 71, 95 Pub. Res. Code Pub. Res. Code viii

10 Pub. Res. Code 21065(a); Pub. Res. Code Pub. Res. Code Pub. Res. Code 21080(d) Pub. Res. Code Pub. Res. Code 21093(a); , 60 Pub. Res. Code Pub. Res. Code Pub. Res. Code Pub. Res. Code , Pub. Res. Code Regulations 14 Cal. Code Regs (b)-(e) Cal. Code Regs , Cal. Code Regs (b) , Cal. Code Regs , 36 37, 38, Cal. Code Regs , Cal. Code Regs (a)(3) , Cal. Code Regs (b.) Cal. Code Regs (c) Cal. Code Regs (c)(1) Cal. Code Regs (c)(2) , 6, 36, 52, 55, Cal. Code Regs (a)(2) , Cal. Code Regs Cal. Code Regs (a) Cal. Code Regs, 15126(a) Miscellaneous County Code (A)) County Code ix

11 I. INTRODUCTION AND SUMMARY This case addresses the County s attempt to comply with the state law requirements regulating housing elements in a general plan. In 2003, the County adopted a new Housing Element for its existing 1994 general plan, which consisted for the most part of aspirational policies for developing adequate housing in the region. In 2007, the County adopted its Countywide Plan Update ( CWP ). The CWP summarized the 2003 Housing Element policies in a housing chapter, but only addressed the housing issue substantively in its Land Use Element, which established a Housing Overlay Designation ( HOD ) consisting of 658 units at densities of 30 units per acre. The County prepared an Environmental Impact Report ( EIR ) for the CWP, which analyzed the environmental effects at two levels 1) general maximum buildout; and 2) buildout of HOD parcels. Assessing these together, based on future population estimates in the year 2030, the CWP EIR identified 42 cumulatively significant and unavoidable impacts that would occur. In 2009, the County began the process of updating its Housing Element. After 2004 changes in state law had created new planning requirements for cities and counties to ensure adequate housing. These changes included the County s obligation to establish a housing inventory of units that would be 1

12 expected to function as the high density housing necessary to satisfy the County s regional allocation mandated by state law. See Govt. Code 65583(a)(3). The housing inventory law was intended to tighten state law requirements to ensure the availability of housing for all income groups. See th Fonseca v. City of Gilroy (2007) 148 Cal. App , In 2010, the California Department of Housing and Community Development ("HCD ) informed the County that its proposed locations to meet the housing inventory requirements did not contain the proper zoning to ensure high density development and on that basis rejected the County s submission. Frustrated, the Board of Supervisors directed staff and consultants to come up with a list of potential housing inventory sites for the present and future housing element cycles out to the year The Board also directed staff to complete environmental review under the California Environmental Quality Act ( CEQA ) of all these sites in order to ensure a streamlined administrative approval process for later projects as they came forward. In response, County staff and consultants completed the 2012 Housing Element ( 2012 HE ) as well as a Supplemental EIR ( SEIR ) for the project. The SEIR purported to analyze the cumulative environmental impacts of designating present and future Housing Element inventory at 49 different locations encompassing 2,537 dwelling units in the unincorporated part of the 2

13 County. The SEIR found that development of these units, at the stated locations and densities, would have no significant cumulative effects on the environment and local communities of Marin County. Petitioners challenge this finding of the SEIR as contrary to CEQA. Here, the SEIR s conclusion that the 2012 HE and its designated parcels for development will not have any significant impacts is based on a flawed legal theory, that the SEIR need not analyze the actual impacts of such development i.e., the impacts on the existing physical environment in relation to traffic, schools, flood hazards, public services, sensitive habitats etc. but may instead simply tier to the CWP EIR, which, as discussed, identified 42 cumulatively significant and unavoidable impacts that would be caused by the theoretical maximum buildout on residential parcels pursuant to the County s zoning. This approach is contrary to settled CEQA principles that an agency cannot compare the impacts of a proposed project to a general plan s theoretical buildout numbers that may in reality never occur. See Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal. App.3d 350, Here, the SEIR s reliance on the broad, generalized findings of the CWP EIR conceal a host of potential and unanalyzed potential impacts of the 2012 HE. Indeed, the SEIR is nothing more than a checklist, comparing project impacts to those addressed in the 3

14 CWP EIR document as part of a legally flawed cumulative context. The SEIR s reliance on the CWP EIR precludes meaningful evaluation of the impacts of the County s choices as to how and where to locate future dense affordable housing in the County, decisions that were never within the scope of the analysis conducted by the CWP EIR, a programmatic review document under CEQA. See 14 Cal. Code Regs (c)(2). Indeed, to the extent the CWP EIR did address the issue of where and how to locate dense and affordable housing in the County, that occurred in its discussion of potential HOD sites. However, only six of the 49 sites purportedly analyzed at high densities in the SEIR were ever considered as HOD sites by the CWP EIR. Further, to avoid significant land use impacts, the CWP EIR adopted specific mitigation limiting the number and locations of HOD sites based on restrictive criteria designed to protect resources, yet the 2012 HE dispensed with these criteria in its selection of sites for future development inventory. Meanwhile, during the public review of the housing element, the County implemented zoning code and CWP amendments without CEQA review that have the potential to change land use development patterns in ways that were never considered in the CWP EIR. In this case, what may appear as harmless planning decisions and documents actually have the potential for substantial impacts down the road 4

15 by streamlining future development at the densities designated and analyzed in the certified SEIR. Here, inclusion of a site in a Housing Element at a specific density confers rights on developers to build at that minimum density. See Govt. Code 65863(b). Further, the County s certification allows developers to rely on the SEIR as a programmatic CEQA document to which the environmental review of future development may be tiered, on over 2,500 housing units within a wide berth of designated Marin communities. The record shows that the County went out of its way in this case to identify and complete CEQA review for many more units than were actually necessary for the County to meet its state law housing requirements. In trying to bank CEQA credits in this way, the County produced a flawed EIR, which nonetheless now stands as a tierable legal document purporting to finding that development of the 2012 HE inventory will not be cumulatively significant. Because the SEIR does not meet CEQA standards, it should be set aside II. RULE 8.204(a)(2) STATEMENT Appellants appeal challenges Respondent County of Marin s adoption of a 2012 Housing Element and certification of a Supplemental Environmental Impact Report ( SEIR ) based on violations of CEQA. The trial court issued its final Judgment Granting Petition for Writ of Mandate on June 9, See Clerk's Transcript on Appeal ("CTA"), pp. 5

16 On June 25, 2015, Respondent moved to Set Aside and Vacate the Judgment pursuant to Code of Civil Procedure 663 & 663a. The trial court denied Respondents Motion on August 10, See CTA, pp Appellants appealed the Judgment on September 8, CTA, pp Respondent filed its cross appeal on September 23, CTA, pp III. ISSUES PRESENTED 1. Whether the County s adoption of the 2102 Housing Element identifying specific locations for future high density development is a CEQA project whose environmental impacts must be assessed regardless of whether the Housing Element also changes the Countywide Plan s Land Use Element? 2. Whether the County s decision to assess the impacts of its Housing Element and inventory designating specific minimum residential unit densities for 49 sites totaling 2,537 dwelling units by comparing those impacts to the prior CWP EIR s analysis of full buildout in the County was contrary to CEQA law as set forth in Environmental Planning & Information Council v. County of El Dorado, supra, 131 Cal. App.3d 350 at ? 3. Whether the County s adoption of the 2012 HE may be considered to be "within the scope" of the CWP EIR pursuant to CEQA Guidelines 15168(c)(2) where the population figures used in the CWP EIR s analysis were no longer considered as reliable indicators of future growth or development? 6

17 4. Whether the 2012 HE may be considered to be "within the scope" of the CWP EIR where the Housing Element s past and future housing inventory greatly exceeds the future dense development patterns evaluated in the CWP EIR as part of the CWP s Housing Overlay Designation ( HOD. ) 5. Whether the 2012 HE may be considered to be "within the scope" of the CWP EIR where the Housing Element inventory for future dense development in the County conflicts with the CWP Policy CD-2.3's criteria for HOD housing evaluated in the CWP EIR? 6. Whether the County s assumption that non-de minimis incremental increases in actual significant impacts do not constitute significant cumulative effects based on a comparison to the prior CWP EIR buildout analysis is contrary to CEQA, as set forth in Communities For a Better Environment v. California Resources Agency (2002) 103 Cal. App. 4th 98, , 124. IV. LEGAL BACKGROUND A. THE HOUSING ELEMENT IN THE GENERAL PLAN. The general plan is the central tool used by local governments in California to manage the potential for population growth and land use development under the state's Planning and Zoning Law. Gov. Code et seq. General plans must include mandatory planning elements including a Housing Element. Gov. Code

18 1. Requirements for Housing Element. Government Code set forth requirements governing the preparation of a Housing Element. The "availability of housing is of vital statewide importance and thus regional housing needs must be addressed in light of "economic, environmental, and fiscal factors and community goals." Govt. Code 65580(a)-(b). Under Government Code 65588, local governments must review and revise adopted housing elements on a regular basis to assure their effectiveness in achieving the state's housing goals. a. Establishment of Regional Housing Needs Allocation. To establish the amount of housing required, Government Code requires the California Department of Housing and Community Development ("HCD ) and the Association of Bay Area Governments ( ABAG ) to jointly determine an agency s existing and projected housing needs over specified time periods, which is called the Regional Housing Need Allocation ( RHNA"). The RHNA shall include not just the total amount of housing needed, but also specific allocations for persons of all income levels, Govt. Code 65884(a)(1), including units for low and very-low income housing. Id., 65884(d)(1). Housing elements must be certified to be in compliance with the RHNA and other state law requirements in order for the local governments to be 8

19 eligible for certain state and federal housing and transportation funds. To receive certification, local governments must submit a draft of any new or revised housing element to the HDC for its review prior to adoption, which may be certified by HDC through the issuance of written findings. b. Required Components of a Housing Element. Government Code prescribes the required components of a Housing Element of a general plan. These include:! an assessment of housing needs and an inventory of resources and constraints. Gov. Code 65583(a).! an inventory of sites suitable for residential development and analysis of the zoning, public facilities, and services available. Gov. Code 65583(a)(3).! a statement of the community's goals, quantified objectives, and policies relative to the maintenance, preservation, improvement, and development of housing, Gov. Code 65583(b).! a five-year program to implement the policies and achieve the goals and objectives of the housing element through the administration of land use and development controls, the provision of regulatory concessions and incentives and other financing and subsidy programs. Gov. Code 65583(c). See Fonseca v. City of Gilroy, supra, 148 Cal.App.4th at The local agency must identify actions it will take to make sites available with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city's or county's share of the regional housing need for each income level. Govt. Code 65583(c)(1). 9

20 2. Housing Inventory Requirement. The housing inventory requirements for Housing Elements set forth in Government Code 65583(a)(3) were part of the 2004 state law amendments to the Government Code intended to ensure cities and counties planned for and created adequate housing to meet the RHNA. See Fonseca v. City of Gilroy, th supra, 148 Cal. App. 4 at Under the new law, the inventory must include the specific parcels, the applicable zoning, as well as a general description of any environmental constraints to the development of housing within the jurisdiction and of the planned water, sewer, and other dry utilities supply, including the availability and access to distribution facilities, which information need not be identified on a site-specific basis. See Govt. Code (b). Based on this information, the agency shall determine whether each site in the inventory can accommodate some portion of its share of the regional housing need by income level during the planning period." Govt. Code (c). As to the lower income housing component of the inventory, the agency must either 1) establish that the minimum zoning density for the parcels meets the statutory requirements, defined as at least 30 units per acre for metropolitan counties, see Govt. Code (c)(B)(iv), or 2) provide a feasibility analysis of how lower income housing will be provided, based on market demand, financial feasibility and residential project 10

21 experience. Govt. Code (c)(A). a. Legislative Restrictions on Agency s Discretion to Regulate the Density of Housing Element Inventory. An agency s housing inventory required by Government Code 65583(a)(3) is a critical planning tool that may be relied upon both by County officials and developers to identify where dense development will occur. For example, once a parcel is presented as accommodating high density development as part of a Housing Element inventory under Government Code 65583(a)(3), a local agency may not permit the reduction of such residential density below that which was utilized by HCD in determining compliance with housing element law, unless the agency makes written findings supported by substantial evidence that (1) the reduction is consistent with the adopted general plan, including the housing element; and (2) the remaining sites identified in the housing element are adequate to accommodate the jurisdiction's share of the regional housing need. See Govt. Code 65863(b). The Government Code also places restrictions on an agency s ability to limit the density of residential housing development in the event the agency has not fulfilled its regional housing allocation as part of its housing inventory prepared pursuant to Section 65583(a)(3). For example, where the housing inventory is found to be inadequate to meet the agency s RHNA for affordable housing projects, any such projects must be permitted by right, meaning that 11

22 the agency s review of the project may not require a conditional use permit, planned unit development permit, or other discretionary local government review or approval that would constitute a project requiring any CEQA review. See Govt. Code (h)-(i); AR ( [L]ocal government review must not require...discretionary review. ) B. REVIEW OF PLANNING DECISIONS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT ( CEQA ). CEQA applies to discretionary projects of a public agency. Pub. Res. Code 21065; Courts must interpret CEQA to afford the fullest protection to the environment, see Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, , to fulfill CEQA s policy that all public agencies shall regulate such activities so that major consideration is given to preventing environmental damage. Laurel Heights Improvement Assn. v. Regents of University of California ( Laurel Heights ) (1988) 47 Cal.3d 376, 390; Pub. Res. Code 21000(g.) Where an agency action has the potential for significant environmental impacts, an EIR must be prepared. See e.g., Pub. Res. Code An EIR is "an informational document" whose purpose "is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate 12

23 alternatives to such a project." Pub. Res. Code 21061; 14 Cal. Code Reg (b)-(e). Laurel Heights, supra, 47 Cal.3d at A CEQA "project" includes the whole of an action which has a potential for resulting in a physical change in the environment, directly or ultimately. Pub. Res. Code 21065(a); 14 Cal. Code Regs (a). The adoption and amendment of general plan elements including a Housing Element is a project within the meaning of CEQA. See e.g., Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, V. FACTUAL BACKGROUND A. COUNTY S 2003 HOUSING ELEMENT AND SUBSEQUENT ADOPTION OF A NEW COUNTYWIDE PLAN IN The County adopted a Housing Element in 2003 ( 2003 Housing Element ), see Administrative Record, Index Line 49, page A (Hereinafter AR-49-A2824), which addressed a planning period from The primary means by which the legislative goals of CEQA are achieved is the preparation of an EIR. Laurel Heights, supra, 47 Cal.3d at 392; Pub. Res. Code 21080(d), 21100, The EIR has been described as an environmental alarm bell whose purpose is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return. Laurel Heights, supra, 47 Cal.3d at Further information on Programmatic EIRs and tiering under CEQA is presented in Section VII.A.2.a-b, pp , infra. 3 Excerpts from the 2007 CWP Administrative Record are included in the Record for the 2012 Housing Element, beginning at line 36 of the AR Index. The draft EIR for the 2007 Countywide Plan is located at line 49 of the AR 13

24 through Following adoption of the 2003 Housing Element, the County began the process of updating the 1994 General Plan. Id. As part of the general plan update process, the County prepared a programmatic EIR, which identified 42 significant cumulative impacts that would occur based on an analysis of full buildout at maximum densities on all County lands eligible for residential zoning. See id., A2876. To reduce some of these impacts, the County chose to adopt Mitigated Alternative 4 as the final Countywide Plan (hereinafter CWP ). See AR-011-C62 (CEQA Findings.) The CWP was approved in November 2007, see AR-26-F2185-F2851, 4 along with the programmatic EIR (hereinafter CWP EIR ) Countywide Plan s Direction for Locating Residential Housing. The CWP establishes land use densities and policies in its Community 5 Development chapter. These sections comprise the Land Use Element required under state law. See AR ; Govt. Code 65302(a). The CWP establishes residential development categories across a full spectrum of population densities, ranging from single family residential index and goes from pages A (cited as A2801) to A A separate CD containing all documents in the 2007 CWP AR was lodged with the Court. 4 The FEIR for the CWP is at AR-41-A210-A1085. The Draft EIR is at AR 49- A2801-A The CWP Community Development chapter is at AR

25 development (on lands designated Very Low Density Residential and Rural/Residential ) where public services are limited or where physical hazards and/or natural resources may restrict development to multi-family development allowing 11 to 45 units per acre. AR-26-F2215. The CWP does not amend the 2003 Housing Element, but does summarize its policies in the CWP chapter on Housing. See AR-26-F2501. a. CWP Addresses Locations of Dense Housing Through Establishment of Housing Overlay Designation. The CWP Housing chapter provides no information about future locations or patterns of high density housing. See AR-26-F2500-F2533. Instead, the location of higher density housing in the County is addressed by the CWP in Community Development Policy CD-2.3, which establishes a Housing Overlay Designation ( HOD ), as follows: The Housing Overlay Designation (HOD) is established, as shown on Maps 3-2a and 3-2b. The purpose of the HOD is to encourage construction of units to meet the need for workforce housing, especially for very low and low income households, and for special needs housing, in the City- Centered Corridor close to transit, employment, and/or public services. See CWP Policy CD-2.3, AR-26-F2408. To ensure affordability, the CWP requires that all HOD units be at densities at least units per acre. AR-26-15

26 6 F2413. Policy CD-2.3 establishes criteria for HOD sites, including:! Designated by the [CWP] as Multifamily (MF), General Commercial (GC), Neighborhood Commercial (NC), Office Commercial (OC), Recreation Commercial (RC), or Public Facility (PF).! Located within the unincorporated portion of the City-Centered Corridor, one-half mile of a transit node or route with daily, regularly scheduled service; and one mile of a medical facility, library, post office, or commercial center.! The area to be developed does not exceed an average 20% slope and is not within the Ridge and Upland Greenbelt; is not within a Wetlands Conservation Area or Streamside Conservation Area; is not a park or public open space area; and is not primarily located within the 100-year flood plain. 7 Id. at Originally, the draft CWP allocated 1,694 units to the HOD, through the establishment of a Housing Bank, which would bank housing credits transferred from West Marin and other sensitive parcels, for redistribution into the city-centered corridors. See AR49-A1290 ( Exhibit 3.0-7, Units transferred 6 The Community Development chapter establishes land use densities for the following residential land use categories: Very Low Density; Rural Residential; Low Density Residential; Low to Medium Density Residential; and Medium to High Density Residential. See id. at Among these categories, only the medium and high density residential allow for densities above four dwelling units (DU) per acre. See id. at The CWP identifies other polices to protect the environment, while also providing the needed housing for the County s lower income residents. See id. at 2410 (describing policies Policy CD-2.5, 2.6 and 2.8.) 16

27 8 to Housing Bank. ) As a result of the CWP EIR s cumulative impact analysis, the 1,694 HOD units were eventually reduced down to 658 in the final CWP. See id. at F (Figure 3-3); at F2851(A)-(C) (Maps 3-2ac); at F2412 (Implementation Measure CD-2.d. to allocate HOD units.) b. Housing Chapter Establishes Aspirational Goals for Affordable Housing. In contrast to the CWP Community Development chapter, the CWP Housing chapter does not provide specific direction on housing density or the location of multi-family housing in the County, but instead simply restates the existing policies of the 2003 Housing Element, including:! HS Establish land use arrangements and densities that facilitate efficient public transit systems and provide incentives for housing developments within an easy walking distance of transit stops, where reduced automobile use and parking requirements are possible.! HS-3.18 Designate Affordable Housing Sites...identify housing opportunity areas and sites where a special effort will be made through incentives and other means to provide affordable housing. 8 See id., A2906 ( The 1,694 housing units in the Housing Bank would result from Policy CD-L3 and Program CD-Lc, which would establish potential residential density and commercial Floor Area Ratio (FAR) at the low end of the applicable range on sites with sensitive habitat or within the Ridge and Upland Greenbelt, the Baylands Corridor, or properties lacking public water or sewer systems. ) Eventually the Housing Bank concept was scrapped in favor of Policy CD-2.3's creation of specific numbers of units on HOD sites. See AR-12-C62 ( The Housing Bank was proposed to facilitate allocation of housing units to specific areas...however, this goal was achieved through adoption of Policy CD-2.3, Establish a Housing Overlay Designation, through which sites within the HOD are assigned caps for housing unit allocations. ) 17

28 Id. at The Housing chapter s implementation programs relating to the establishment of affordable housing are also undefined and aspirational:! HS-3.e - Apply CEQA Exemptions and Expedited Review.. seek opportunities for infill development within urbanized areas consistent with local general plan and zoning requirements that can be categorically exempt from CEQA review! HS-3.s - Conduct a Detailed Affordable Housing Sites Feasibility Study assessing feasibility, planning, environmental review, appropriate zoning and site characteristics! HS-3.v - Evaluate Feasibility of an Affordable Housing Overlay Designation that lists particular sites on which residential densities will be substantially increased if a specified level of affordability is achieved. Id. at F2511-F2512. c. Relationship Between 2007 CWP, the 2003 Housing Element, the HOD and the County s Obligation to Meet Regional Housing Needs Allocation. A central purpose of the CWP s HOD is to fulfill the aspirational goals of the 2003 Housing Element to provide for affordable housing: The policies and programs in the Countywide Plan build upon the existing state-certified housing element... The Project is consistent with the County's certified Housing Element and meets the affordable housing goals and requirements of the County by establishing a Housing Overlay Designation (HOD). AR-12-C144 (emphases added.) The CWP thus envisioned that as part of the next update of the 2003 Housing Element, the County would [a]nalyze additional HOD sites. AR-26-F2415 (Implementation Measure CD-2.l.) 18

29 Countywide Plan EIR. The CWP EIR is a program EIR, which evaluates the environmental 9 impacts of the CWP at a broad level, based on the predicted effects of buildout throughout the County, while also addressing the more specific impacts regarding development of HOD sites. See AR-49-A2906-A2912. a. Impact Analysis of Full Buildout. To assess the environmental impacts of housing development buildout the CWP EIR compares the existing number of units to a projected full buildout of development which could occur if land vacant in 2005 were fully developed according to the zoning designations in the Draft 2005 CWP Update. See AR-49-A2904. The EIR makes the assumption that this full buildout would occur by To calculate buildout, the CWP assumes a 2006 population baseline of 69,239 for unincorporated Marin County, out of a total of 253,341 for the entire County, and a future projected 2030 population of 283,100, with 76,400 persons projected to reside in the unincorporated area. AR-49-A2905. Based on these figures, the CWP assumes an increase of 5,391 units in the unincorporated part of Marin between the years 2005 to 2030, out 9 A program EIR "may be prepared on a series of actions that can be characterized as one large project and are related...in connection with the issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program." 14 Cal. Code Regs (a)(3). 19

30 of a total County wide increase of 13,853 units. Id. at A2905. Using these buildout figures, the CWP EIR identifies 42 significant and unavoidable 10 cumulative impacts that will occur. See e.g. AR-49-A2868-A2871, A2876. b. Impact Analysis for HOD Designations in CWP. The CWP EIR assesses the impacts of the Housing Overlay Designation ( HOD ) as originally proposed at 1,694 units. See AR-49-A2876. The EIR identifies locations for these units as part of the CWP s project description. See AR-49-A2906-A2912. Impacts of the HOD locations are then analyzed 11 extensively in the CWP EIR, leading to the conclusion that some of the Housing Overlay Designation sites included in the Draft 2005 CWP Update would be inconsistent with proposed criteria in Policy CD-2.3 and would result in land use conflicts. AR-49-A2876. (emphasis added.) The CWP EIR 10 A few of these significant impacts were avoided in the subsequent approval process by the adoption of mitigation measures. For the rest, the Board adopted a statement of overriding considerations pursuant to Public Resources Code 21081(a)(2). See AR-12-C , C The EIR analyzes the cumulative effects of developing these HODs separately from the buildout analysis described above in each of the resource areas including land use, population and housing, see AR-49-A , transportation see AR-49-A , A3059, A3075-A3081, hydrology, water quality and flood hazards, see AR-49-A3149, A3152-A3519, A165- A3166, A3176, A3180, 3185 and, biological resources, AR-49-A3211, A3221, A3226, A3232, geology, AR-49-A3251, A3263, A3265. For other resources such as water (AR-49-A3383), fire risk (AR-49-A3477) or visual aesthetics (AR 3520), the EIR assumes that the creation of 1,694 HOD units away from sensitive hill or wet areas, near a designated transport hub, will be environmentally beneficial. See also AR-A

31 12 identifies this as a significant cumulative impact. AR-12-C0121; 49-A2828. To reduce this impact to insignificance, the CWP EIR proposes Mitigation Measure 4.1.5, which requires that individual HOD parcels that do not meet the HOD criteria be removed from further consideration. AR-12- C0122; 49-A3011. The CEQA findings state that Measure would reduce physical impacts due to inconsistency with the recommended criteria to a less-than-significant level. See AR 12 C The CWP EIR included Measure as part of its Mitigated Alternative 4, which was ultimately adopted by the Board as the final CWP. AR 12-C , 139; AR-49-A In so doing, the County rejected other alternatives as having greater impacts than those of mitigated Alternative 4. See AR 12 C B. ADOPTION OF 2012 HOUSING ELEMENT. In November 2009 the County submitted a draft Housing Element to the HCD, which, however, found the low density zoning on the majority of sites not to meet the statutory standards required to facilitate affordable housing 12 See 14 Cal. Code Regs (a)(2) ( Indirect or secondary effects may include...effects related to induced changes in the pattern of land use, population density, or growth rate, and related effects on air and water and other natural systems, including ecosystems. ) (emphasis added.) 13 Mitigation Measure reduced the number of HOD units in the CWP from 1,763 down to 758 units, see AR 49 A-3588, a figure later changed in the CWP to 658 units. See AR See AR 49 A ; AR (showing distribution of 658 HOD units in the CWP EIR and CWP). See also AR 26 F2851A-B (land use maps showing HOD locations.) 21

32 development. See AR-232-J8480-J8485 (January 7, 2010 Letter from HCD to County); AR-66-I (County summary in staff report.) In September 2010 the Board of Supervisors directed staff to respond to HCD s comments by identifying adequate housing sites for the housing element cycle, as well as for the planning period that might accommodate a density of 30 units per acre to meet state requirements. AR-66- I3175. The Board also instructed staff to conduct CEQA review that would include an evaluation of the impacts for all the sites identified in both the and housing element cycles. Id. The expanded review would analyze units sufficient to meet the County's current shortfall in affordable housing units and the estimated future need for additional housing that will be allocated to the County in the next housing element cycle ( ). See also AR-180-I7986; 370-N Zoning and CWP Amendments to Implement Housing Element Direction. To increase the potential for high density development, the County informed HCD in 2010 of a change in policy, that affordable housing would henceforth be exempted from zoning requirements and allowed to build up to the maximum densities under the CWP land use designations: [T]he County will, with the adoption of this element exempt affordable housing from zoning in favor of the higher Countywide Plan land use designation....we believe that a site based rezoning program would 22

33 limit the range of opportunity in the unincorporated County given the broad range of zoning types in place. We have favored a blanket density increase up to the maximum allowed in the Countywide Plan which has the potential to yield many more units. AR-231-J8477, J8479 (emphasis added.) To implement this approach, on January 24, 2012 the County amended its zoning code to allow affordable housing to be established at the maximum Marin Countywide Plan density range in any area that allowed residential uses. See AR (referring to County Code (A)). The County also exempted affordable housing projects from master plan and precise development plan requirements. 14 Id ; AR 19 E1143. Subsequently, on November 13, 2012, the County amended the CWP (Policy CD-1.3) to exempt affordable housing projects from the requirements that developments be limited to the minimum density on lands with sensitive habitat, within the Ridge and Upland Greenbelt or the Baylands Corridor, or lacking water or sewer systems. AR-28-F2922. The County did not conduct CEQA review for any of these actions, despite the potential for such land use designation and zoning changes to lead to greater development on parcels with steep slopes, ridges or sensitive 14 The 2012 HE identifies this zoning change as "implementing Housing Element program 1.d Streamline the Review of Affordable Housing in order to shorten the costly pre-development process undertaken by affordable housing developers in order to secure approvals. AR-19-E