Appeals court forces planners to shuffle on streams

03/13/2014

A state appeals court last week ruled that Marin County must undertake a new environmental review of its 2007 County Wide Plan on the grounds that it failed to both assess the cumulative impacts of potential development along streams in the San Geronimo Valley and outline mitigation measures for special status species, violations of the California Environmental Quality Act.

Appellate judges also ruled that a 2012 court-ordered moratorium on building in the Lagunitas Creek watershed—decried by some homeowners as a violation of property rights—was both improper and unwarranted. The case will now return to the Marin Superior Court for a final ruling.

Both the county and the nonprofit that initiated the lawsuit against it in 2010, the Salmon Protection and Watershed Network, are hailing the ruling as a victory. The nonprofit says the decision affirmed arguments it has been making since the county certified the County Wide Plan’s Environmental Impact Report. Marin officials counter that the ruling on the moratorium highlights the strong protections already in place for streams. 

But the ruling also came with a dose of uncertainty. With the 2007 plan invalidated, Marin reverts to rules laid out in the previous 1994 County Wide Plan. It is unclear if this roll back will apply to the entire county or just to the San Geronimo Valley, which was specifically targeted in SPAWN’s lawsuit. 

David Zaltsman, Marin’s deputy county counsel, said he is hoping the court will clarify this point.

Ironically, the effects of reverting to the 1994 plan could in fact harm the very species SPAWN is seeking to protect, coho salmon and steelhead trout.

“The 2007 plan, in my opinion, increased protections. It’s an improvement. If we go to the 1994 plan, we’re taking a step or two backwards, which is unfortunate and ironic,” said Tom Lai, the deputy director of planning for the county’s Community Development Agency.

Wade Holland, a planning commissioner who represents West Marin, agreed. “We really tightened things up” in 2007, he said. 

Many Community Development Agency staffers were hired after the 1994 plan was shelved, and will need to be trained to implement it, Mr. Lai added. 

The county has already spent hundreds of thousands of dollars in SPAWN-related litigation, although it stopped retaining outside council about a year ago, Mr. Zaltsman said.

The big win for homeowners in the San Geronimo Valley is the appellate court’s finding that a 2012 injunction on development was inappropriately established. The original injunction said the development moratorium could be lifted with the passage of a new stream ordinance, so when Marin County supervisors passed an interim ordinance late last year, they also declared the end of the moratorium. 

At the time, SPAWN disagreed, claiming the moratorium was still valid. The group then filed another lawsuit, which, due to a so-called poison pill clause in the interim ordinance, rendered the supervisors’ ordinance null.

Last week the appellate court said that the injunction violated property rights because no one was aware the court was considering the freeze, giving neither the county nor residents a chance to offer arguments against it. The ruling said there was “undeniable logic” in the idea that such a prohibition on new construction would spur the county to action, but said that the injunction was still not just.

“No showing has been made that in the absence of an injunction the County is likely to permit construction within the [stream conservation areas] without the site-specific environmental review called for in the 2007 CWP, or that it is likely to issue a permit for construction that does not conform to the standards in the 1994 or the 2007 CWP,” the ruling said.

According to Mr. Lai, no new permit applications for the valley have been submitted since the moratorium was lifted. But one that was put on hold because of the injunction is now being processed, he added.

Aldo Tarigo owns a century-old home in Lagunitas that is falling apart and has a failing septic system. He said he is trying to do all the right things, by remodeling the building into an energy-efficient, solar-oriented home and adding a second unit. But after his application was deemed complete in the summer of 2012, the moratorium was announced and he couldn’t embark on initial environmental studies. 

“We’re unable to keep rodents out of our house because the wood is soft. They just find another hole. It’s been sort of a nightmare,” he said.

He had not heard about the recent appellate court ruling before talking with the Light. “Well, that’s good news,” he said. “We’ll keep going and hope we can continue. But we wouldn’t be surprised if we were totally stopped again.”

Todd Steiner, SPAWN’s executive director, believes the trial court may hear arguments on the injunction before it issues a final ruling, possibly giving his group a chance to convince the court to maintain it.
The county has argued that environmental reviews of broad planning documents like the County Wide Plan do not require the specificity SPAWN is seeking, which the county says would require a site-by-site analysis. 

But that interpretation is flawed, the appellate court said. Its ruling said the county misconstrued what SPAWN was asking for, which was an analysis of the Lagunitas Creek watershed based on “projected development.” 

That is what such environmental reviews are meant to assess, since those are the impacts that evade site-specific assessments, the court said.

County officials still disagree, but are unlikely to appeal. “We believe they erred, but at the end of the day to comply might be easier,” Mr. Zaltsman said.  

Mr. Steiner emphasized the importance of a cumulative impacts study. “People say that to me all the time: ‘My house isn’t gonna make a difference to the salmon.’ True in insolation. One house isn’t, but one more house is the straw that breaks the camel’s back,” Mr. Steiner said.

The amount of development that could be permitted under the County Wide Plan is debatable, but Mr. Lai said the tiny size of many vacant lots in the San Geronimo Valley is a death knell for development, since leach fields require larger areas.

The appellate ruling also found the Environmental Impact Report’s mitigations for special status species inadequate. The review called for participation in FishNet 4C, a six-county program funded by state and federal agencies to provide recommendations for protecting and restoring streams and fish habitat. But the report didn’t explicitly require the county to implement the coalition’s advice.

“Just saying, ‘Oh, we’re a member of this club,’ is bogus. That’s what the appeals court said,” Mr. Steiner opined.

Mr. Zaltsman called his distinction “wordsmithing.”

Mr. Steiner pointed out that FishNet 4C has since dissolved.

The Community Development Agency will now finish a cumulative impact analysis for the watershed that it began a few years ago to appease SPAWN’s ongoing complaints over fish habitat protections. 

That analysis, which Mr. Lai said has been stalled while the agency has worked on a riparian vegetation ordinance, the Salmon Enhancement Plan, the interim stream conservation ordinance and a future permanent ordinance, will inform the supplemental environmental report.