A likely settlement between the Salmon Protection and Watershed Network and Marin County could soon put an end to over a decade of litigation over waterway protections in the San Geronimo Valley.
The settlement, which the county has agreed to “in principle,” will go into effect when the Board of Supervisors adopts an ordinance that aligns with its terms, according to an announcement last week.
Under those terms, the ordinance must tighten development restrictions in the valley’s 100-foot streamside conservation area, or S.C.A. It must also expand a no-build zone and shrink certain building allowances. In exchange, the nonprofit would agree to stop suing Marin over its streamside development rules for the valley. The county would compensate SPAWN for its legal fees.
Tom Lai, director of the Community Development Agency, said the county’s goal is a “balance between strong enforceable regulations…and a fair enforcement program that could keep people on their toes without being punitive.”
Homeowners in the area are shocked at the settlement, said Peggy Sheneman, a member of the San Geronimo Valley Stewards. “There’s a lot of things in it that we have been fighting and that the county has rejected since 2009 repeatedly. So it’s surprising that the county is caving and surrendering to all the things that SPAWN asked for,” she said.
Supervisors will consider the S.C.A. ordinance on June 19, a week after the Planning Commission discusses it on June 13. The settlement could be delayed if a third party were to file a legal challenge within 91 days.
The litigation between SPAWN and Marin began in 2010, when SPAWN asserted the 2007 Countywide Plan inadequately addressed the potential cumulative impacts of development on coho salmon in the San Geronimo Valley watershed. The suit spurred the county to develop a supplemental environmental impact report, with a five-year timeline for developing measures to mitigate harmful impacts.
SPAWN then joined with the Center for Biological Diversity to bring a suit alleging the S.E.I.R. was inadequate and five years too generous a window. Last year, a Marin judge agreed with SPAWN that the timeline was too long. The judge didn’t address claims that the S.E.I.R. was insufficient, except to say that the ordinance should include performance standards, or ways to measure the success of mitigation measures.
The county appealed, and although that appeal is still active, planners had already started work on an ordinance. A November Planning Commission workshop on a draft drew complaints from homeowners that the regulations would be too onerous. Site assessments, required for any work in the S.C.A., could cost over $3,000. SPAWN, on the other hand, worried the draft was vague and lacked clear enforcement protocols.
The settlement terms require some significant changes to the draft. A previous allowance for up to 500 square feet of development within the 100-foot S.C.A. must shrink to 300 square feet. A 20-foot sub-buffer that serves as a no-build zone must expand to 35 feet—and include ephemeral streams, or those that appear only after rains—though homeowners would be able to maintain and repair existing structures in the zone. “A 35-foot buffer would add significant protection to San Geronimo Creek and tributaries,” said Preston Brown, the director of watershed conservation for SPAWN.
SPAWN also took issue with what it called vague language in the draft around exceptions that can be made if building entirely outside the S.C.A. is found to be infeasible. Under the settlement terms, the ordinance must be more specific about “what’s determined to be infeasible or not,” Mr. Brown said.
In addition to adopting the ordinance, the settlement would require Marin to pay SPAWN and the Center for Biological Diversity $240,000 in legal fees. The county would have to develop a system to accept anonymous complaints, beef up its enforcement of ordinance violations and launch a voluntary pilot program for inspections during home sales to determine any violations of the stream ordinance.
Mr. Lai said that increased enforcement could translate into quicker turnaround times for responding to complaints, with enforcement staff available on evenings and weekends. Responses outside business hours would prioritize alleged violations that couldn’t be reversed, like cutting vegetation in the conservation area.
As far as anonymous complaints go, Mr. Brown said requiring names is tricky because “people don’t want to complain out of fear of retaliation.” Mr. Lai said his agency already keeps the names of complainants confidential, but court cases can force it to reveal identities. Accepting anonymous complaints could ease worries about eventual discovery, though it would also leave the agency unable to follow up with questions if a complaint isn’t clear. Mr. Lai said the county has leeway to deprioritize such complaints.
The settlement would also require any project undergoing a site assessment to be inspected for violations of the S.C.A., a move Ms. Sheneman says will discourage homeowners from applying for assessments. Violations would be deemed a “public nuisance,” which amounts to “deputizing SPAWN and other people to sue their neighbors,” she said.
In exchange for complying with the settlement terms, SPAWN would relinquish the right to sue Marin over violations of state environmental law with regard to the Countywide Plan or the stream ordinance.