Judge rejects SPAWN plea to pause development

02/16/2017

A county judge denied a local environmental group’s request to halt development near San Geronimo Valley streams last Friday. But the judge, Paul Haakenson, scheduled another court hearing and put pressure on the county to move forward on an analysis of the cumulative impacts of development on fish, a document the county says should be released within weeks.

The Salmon Protection and Watershed Network, which has repeatedly sued the county over objections to what it sees as woefully lax protections for coho salmon and steelhead trout, won a previous injunction against development in the valley in 2012. 

A San Francisco appeals court lifted that injunction in March 2014, arguing that it imposed too great a burden on property owners. Yet at the same time, the appeals judge ordered the county to prepare a supplemental environmental impact report for its 2007 Countywide Plan, to analyze the cumulative impacts of streamside development on fish. In the meantime, because of the appeals ruling, the county must rely on its 1994 plan when analyzing development projects in the valley.

It’s been almost three years since that order. But the county, which contracted with Stillwater Sciences to prepare the supplemental E.I.R. at a cost of about $192,000, has not yet released the draft, a source of frustration for SPAWN.

In its motion for an injunction on development near valley streams, the nonprofit cited a permit issued to James and Matthew Murray to build a home close to Woodacre Creek. The project was stalled for over a decade but nabbed approval from the planning commission last summer over objections and concerns from SPAWN, the California Department of Fish and Wildlife and neighbors concerned that it might encourage landslides. (The county countered that the project could act as a retaining wall of sorts, stabilizing rather than threatening the area.) 

SPAWN is suing the county over the permit and argues that without the injunction, it may bring more challenges to permit approvals in the valley.

In court on Friday, Andrew Ogden, an attorney for the nonprofit, said the supplemental E.I.R. would “see where the tipping point is” for fish in the valley, which he called crucial information for those making decisions on development permits. Without that document, any permit approval means “that [the California Environmental Quality Act] process is being compromised. Environmental harm is always irreparable,” he said. 

Mr. Ogden said an injunction would affect “relatively few landowners,” an opinion SPAWN expressed in its motion. “A carefully-tailored injunction that is limited to certain types of development can avoid hardship to property owners in the San Geronimo watershed,” the motion, filed in December, states. Unlike the previous injunction, this one could distinguish between “activities subject to ‘construction permits’ and approvals for the development of new or expanded residential and commercial projects.”

But David Zaltsman, a county counsel, argued that there is no basis for an injunction because the 1994 Countywide Plan is valid and each project undergoes a proper environmental review process based on it. There has been “no evidence” and “no allegation” that the 1994 plan is invalid, he said.

In a tentative ruling finalized on Friday, Judge Haakenson sided with the county. 

He noted that the appeals court overturned the original injunction because of concerns for landowners, and agreed that the 1994 plan is in effect, meaning the county is still required to adhere to environmental review processes. 

Given the absence of a challenge to the 1994 plan, an injunction to stop all development applications until the supplemental review is done “seems to be prohibited” by the law, Judge Haakenson wrote. 

Still, he sympathized with SPAWN’s frustration over the long lag time for the environmental review. “I do agree we need to get the supplemental E.I.R. moving,” he said in court. 

Though he noted that the county is to some degree “at the whim” of the consultant working on the report, he wondered if he could encourage “whatever is clogging the damn to get moving.”

According to Mr. Zaltsman, the county expects a draft of the document to be released by the end of the first week of March, at which point it will circulate for at least 30 days for public comment. 

Then Stillwater Sciences will prepare a final draft, which will include responses to comments, which could be voluminous. Once the final draft is out, the Board of Supervisors will hold a hearing to consider certifying the document.

To encourage progress, Judge Haakenson set a hearing for March 3 to discuss the issue again.