Transparency advocates scored a victory last week when the Marin County Board of Supervisors agreed to hand over some, but not all, of a series of documents related to a short-lived, streamside ordinance passed in 2013.
The agreement ended a lawsuit filed in 2014 by retired environmental attorney David Schnapf and the First Amendment Coalition, which sought the disclosure of 69 documents that include drafts of the ordinance and notes written by Supervisors Katie Rice and Steve Kinsey, neither of whom were allowed to participate in the decision-making process due to conflicts-of-interest. Marin Superior Court Judge Paul Haakenson issued a tentative ruling last month that required the county to offer further proof of the county’s right to withhold the documents, and supervisors responded by agreeing to release 10 of them.
The settlement agreement between Mr. Schnapf and the county follows on the heels of last month’s failed attempt by SPAWN to block approval of a residential development located in the San Geronimo Valley’s Lagunitas Creek watershed, home to one of the state’s last remaining coho salmon populations. SPAWN also opposed the 2013 ordinance, calling it too weak on fish protection.
“I think the importance of the case is that the county was basically taking the position that anything that was a draft or notes taken by a member of the board of supervisors was categorically off-limits from disclosure,” said Karl Olson, Mr. Schnapf’s lawyer. “The presumption is in favor of disclosure, and that there is a strong interest in the public seeing these documents.”
Passed in 2013, the county’s Stream Conservation Area Ordinance was an amendment to the 2007 Marin Countywide Plan that intended to set stricter limits on where new development projects could be located in the creek’s watershed. But critics argued that supervisors watered-down the ordinance during a series of closed-door subcommittee meetings, the records of which the county withheld from the public.
“As an environmentalist, I was deeply concerned by the weakening of the ordinance,” said Mr. Schnapf, of Greenbrae. “I wanted to know how that came about and to find out how that process went.”
Of particular interest to Mr. Schnapf was a “poison pill” provision, which said that any lawsuit brought against the ordinance would nullify it. Indeed, a few months after supervisors approved the ordinance in 2013, SPAWN sued the county. Its third lawsuit since 2006, the environmental group argued that the ordinance would not compel county planners to evaluate the cumulative impacts to the watershed for all past, present and future developments; instead it only required the analysis of individual impacts on a case-by-case basis.
During SPAWN’s recent appeal last month of a permit authorizing parcel owner Israel Saban to build a 1,400-square-foot home in the valley, the county ruled that evaluating the past, present and future cumulative impacts of projects would be impractical, and supervisors unanimously approved the permit after lashing out against SPAWN for bringing the appeal. It remains to be seen how SPAWN will respond, given that one of the lawsuits brought by the group succeeded in bringing a two-year moratorium on building in the valley from 2012 to 2014.
“We’re still considering what our next steps are,” said Todd Steiner, SPAWN’s executive director. “We haven’t made a decision yet. It’s unfortunate that the county is continuing to issue permits without doing the proper environmental review.”
Though Mr. Steiner said he was pleased with the county’s decision to reach a settlement agreement, he criticized the county for its alleged attempts to skirt public-disclosure law. “We would like the county to understand the law and follow it,” he said.
Months prior to the ordinance’s passage, the county received a letter from the state’s Fair Political Practices Commission informing Mr. Kinsey and Ms. Rice that they could not participate in drafting the ordinance because they owned property within 500 feet from certain set-back boundaries defined in the ordinance. Mr. Schnapf’s concern was that these supervisors may have continued to participate in subcommittee meetings where the ordinance was revised even after the commission’s letter was sent, in violation of the state’s conflict-of-interest rules.
In his tentative ruling, Judge Haakenson stated that the county had provided several handwritten and typed notes composed by Ms. Rice and Mr. Kinsey, none of which were dated or given proper context for why they were composed. The judge went on to require dates and context be supplied to show that the supervisors did not participate in subcommittee meetings after receiving the commission’s letter.
Mr. Schnapf said that he has not yet received any documents from the county. He also stressed that both Ms. Rice and Mr. Kinsey submitted court declarations that stated they had destroyed their notes.
“So in the end there may not be much left,” Mr. Schnapf wrote in an email. “The county’s destruction of documents is a sore point with me because I had asked them to ensure that documents were preserved, and [county counsel] wrote me saying that the county was not destroying any documents.”
Since the settlement agreement, the county has remained steadfast in its view that there was no wrongdoing on the part of either Mr. Kinsey, who represents West Marin, or Ms. Rice. (Mr. Kinsey referred the Light’s questions about the case to the county’s counsel.) Nor has the county admitted that its decision not to disclose certain documents was improper.
“We don’t agree that anything was improperly withheld,” said Steve Perl, a county counsel. “Whether there were further meetings of the subcommittee after we received the letter, I can’t say.”
In its defense before Judge Haakenson, the county cited government code that allows for public agencies to withhold documents from the public on the basis of attorney-client privilege. The county also argued that disclosing documents would impede officials from engaging in “candid discussion” of issues and that it would be in the public’s best interest to withhold, rather than disclose documents. But Judge Haakenson, in his tentative ruling, found that the county had not offered sufficient proof of the public’s interest in non-disclosure, and ordered the county to provide clarification.
Meanwhile, SPAWN is still waiting for the county to draft a supplemental environmental impact report that would effectively replace the annulled ordinance. In 2014, a California appeals court lifted the valley’s two-year building moratorium, but did so pending that the county would pledge to draft the impact report. The deputy director of the community development agency, Tom Lai, said that the county is reviewing a proposal from a consultant to conduct the supplement, but the contract is not yet finalized.
“The [court] basically handed the county their heads on a platter,” Mr. Steiner said. “They continue to believe they didn’t do anything wrong, even after a judge told them they’ve done something wrong.”