By Amy Kalish
A recent Marin County Planning Commission agenda item to finalize the Corcoran v. County of Marin lawsuit, which the county lost, morphed into a much larger exposure of dysfunction between county interests and staff.
On Sept. 23, the commission voted 5-2 to simply follow a court order to remove unlawful language clauses from county documents that had been inserted by staff – over commissioners’ objections – in 2022.
In a perfect world, the Marin County Board of Supervisors would follow suit, and our ”fixed” Housing Element would be sent off to the California Department of Housing and Community Development. The matter would be concluded.
The entire issue revolves around unlawful wording, called “precedence clauses,” that elevates one part of a plan over another – when they are actually both parts of a single plan that work together. Previously, when there was a conflict between the countywide plan and community plans, the more specific plan prevailed. This specificity had been helpful in Marin’s complicated landscape when general guidelines were not enough.
Staff used precedence clauses to undermine community plans from the beginning of the Housing Element process. The Planning Commission repeatedly told staff to remove the clauses, as they “eviscerated” community plans. Staff continued to insert and defend the clauses, even after learning they were unlawful. As a result, the commission rejected the Housing Element.
Staff then presented the Housing Element with the clauses to the supervisors, who approved it under time pressure. This exposed the county to a lawsuit, which it predictably lost, leading to the very court order we are now dealing with.
At the recent Planning Commission meeting, instead of simply presenting documents that removed the clauses, staff presented a larger document with a clever workaround that bypassed community plans and directly made staff the arbiters: when conflicts between plans arose, staff would “harmonize” the differences. Their language went so far as to include “submitting to the authority of any state agency.”
But then came the kicker: Staff had already run the whole thing through the Department of Housing and Community Development, before the commissioners had reviewed it. The HCD decides if the county is in compliance with myriad housing laws, and were only previously aware that court-ordered changes to our Housing Element were coming.
The commission and public were blindsided by this revelation. There were several objections. Commissioner Christina Desser was blunt, saying “That’s backwards.”
Staff had indirect explanations, citing concerns that the community plans were limiting, and the new language must now be retained because the HCD expected it – or the Housing Element would be in jeopardy.
Commissioner Margaret Curran commented, “I feel like now we’re in this box where HCD is expecting a broader scope.”
After watching this process unfold over almost two years, I appreciated Desser’s reproach to staff: “The way that you are handling the process deprives people of their voices and deprives us of any real role in decision making. Obviously I feel very strongly about this – manipulated, like, ‘get rid of us.’ I guess state law requires that we exist, but why are we wasting our time?”
Desser tapped into long-standing concerns voiced by the public and the commissioners that county staff have been crafting our Housing Element and countywide plan documents to their own extreme preferences when interpreting state policy. Their guidance often goes beyond what Sacramento requires, though they are employed to serve the interests of Marin County.
Regarding the threat of Housing Element decertification, even Marin County legal counsel was uncertain that the omission of the proposed additional new language could be harmful.
In the end, the Planning Commission voted to simply follow the court order and eliminate the precedence clauses. They rejected the new language as “unnecessary,” “vague” and “complicating.”
The court order is clear: “the county shall remove the void precedence clauses which direct subordination of the community plans to the (countywide plan).”
On Oct. 15, I hope the supervisors follow the commission’s lead and strictly comply with the court order. Deferring to staff would again subordinate community plans and create potential for other conflicts and confusion.
Amy Kalish, of Mill Valley, is director of CitizenMarin.org.
