Marin judge forces reexamination of Mt. Tam project
By RICHARD HALSTEAD | email@example.com | Marin Independent Journal
PUBLISHED: January 20, 2022 at 4:21 p.m. | UPDATED: January 20, 2022 at 4:59 p.m.A judge has blocked the Marin County’s approval of a subdivision on Mount Tamalpais, forcing a new vote by the Board of Supervisors.
The dispute involves the property at 455 Panoramic Highway in the Muir Woods Park neighborhood. The resident wants to split the 8.29-acre parcel into three legal lots and build two new houses.
The plan, known as the Dipsea Ranch project, prompted a lawsuit by the Watershed Alliance of Marin and Friends of Muir Woods Park Court. The plaintiffs argued that the environmental review process the county used for the project failed to meet some informational requirements mandated by the California Environmental Quality Act.
In a ruling on Jan. 10, Marin County Superior Court Judge Andrew Sweet agreed with the plaintiffs and partially granted a writ of mandate halting the project. However, Sweet did not order the county to prepare a full environmental impact report, as the plaintiffs were seeking.
“Petitioners have not identified substantial evidence supporting a fair argument that the project may have a significant effect on the environment based on the administrative record lodged and certified in this matter,” he wrote.
Marin County Counsel Brian Washington said, “While the ruling does set the approval aside, Judge Sweet rejected the majority of the petitioners’ claims.”
Tom Lai, director of the Marin County Community Development Agency, said, “The court asked that we clarify some points around technical issues or descriptions, to support full and complete understanding on the part of decision makers, staff, and the public around what would be entitled and what could occur in future development of the parcels.”
Lai said the next step would be for the county to draft an amendment to its initial study of the environmental impacts and have the Board of Supervisors review the new version for approval.
The owner and prospective developer, Dan Weissman, said, “We look forward to working with the county to address the three issues identified in the court’s order.”
Edward Yates, the attorney representing the plaintiffs, had a different view of Sweet’s ruling.
“This victory vindicates Marin’s citizen activists’ efforts to protect fish and wildlife and hold the county accountable,” Yates said.
Sweet said there are three important pieces of information missing from the county’s initial study.
First, he said, it failed to state what will be done with 140 cubic yards of excess fill from the project, whether the fill will be stockpiled onsite or hauled away.
The environmental organizations said this is important because the site drains to streams that flow to Redwood Creek, which in its lower reaches supports coho salmon, an endangered species, and steelhead trout, a threatened species.
Sweet also said the initial study omitted information on the condition of soil stability around a fire road at the site.
Sweet said the study also failed to identify: the location of drainages on the property in relation to stream or wetland conservation areas; any mechanisms to be employed to divert water from these areas; and associated environmental impacts, if any, from the drainage and diversion of water from those areas.
The plaintiffs said one reason the county’s environmental analysis was incomplete is that it failed to assess the potential impact of Weissman using the approval to build more than two homes at the site.
The plaintiffs pointed out that Weissman could ultimately use the approval to build as many as 17 new residences without any environmental review because of new state laws that exempt lot splits and accessory apartments from California Environmental Quality Act impact analysis.
Weissman scaled back his initial building plans after significant pushback from neighbors. He originally submitted a master plan to build eight 6,000-square-foot homes, four 2,300-square-foot homes and nine 750-square-foot apartments.
But Sweet, in his ruling, wrote: “In addressing reasonably foreseeable conduct, an environmental review need not discuss future action ‘that is merely contemplated or a gleam in a planner’s eye.'”
“Mere awareness of proposed expansion plans or other proposed development does not necessarily require the inclusion of those proposed projects in the EIR,” the judge wrote, quoting a 1988 ruling in Laurel Heights Improvement Association of San Francisco Inc. vs. Regents of the University of California. “Rather, these proposed projects must become ‘probable future projects.'”
Marin supervisors initially approved the project on a 4-1 vote in October 2020. The dissenter, Kate Sears, asked Weissman if he would agree to a deed restriction prohibiting him from further subdivision of his lots. Weissman declined.
Ed is a land use and property lawyer in San Francisco California. Ed previously served as a Peace Corps Volunteer, Deputy County Counsel in Santa Barbara and Adjunct Professor of Land Use Law at Golden Gate University.