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HomeMy WebLinkAboutTC Agd Pkt 2023-11-15 TOWN OF TIBURON Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 Tiburon Town Council November 15, 2023 Regular Meeting 6:30 P.M. TIBURON TOWN COUNCIL AGENDA The meeting will be held in person and will be televised live on Zoom. Members of the public have the option of participating in-person or remotely via Zoom at: Webinar: https://us06web.zoom.us/j/89217087066 Webinar ID: 892 1708 7066 Call-in Number: 1 669 444 9171 Submit public comment by: 1. Email comments@townoftiburon.org prior to 12:00 p.m. the day of the meeting. Written comments received will be saved as part of the record of the meeting. 2. Attend the meeting in person at the Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California 94920 and provide public comment. 3. If on Zoom, during the public comment portion of the agenda item, select the “Raise Hand” option or *9 if using a phone. Please be advised that those participating in the meeting remotely via Zoom do so at their own risk. The Town Council meeting will not be cancelled if any technical problems arise during the meeting. REGULAR MEETING – 6:30 P.M. CALL TO ORDER AND ROLL CALL Councilmember Nikfar, Councilmember Thier, Councilmember Welner, Vice Mayor Fredericks, Mayor Ryan ORAL COMMUNICATIONS Persons wishing to address the Town Council on subjects not on the agenda may do so at this time. Please note however, that the Town Council is not able to undertake extended discussion or action on items not on the agenda. Matters requiring action will be referred to the appropriate Commission, Board, Committee or staff for consideration or placed on a future Town Council meeting agenda. Please limit your comments to three (3) minutes. CONSENT CALENDAR CC-1. Town Council Minutes – Adopt minutes for November 1, 2023 Town Council regular meeting (Office of the Town Clerk) PUBLIC HEARINGS PH-1. Municipal Code Amendments – Hold public hearing to consider amendments to Chapter 16 (Zoning) of the Tiburon Municipal Code to implement provisions of the 2023-2031 Housing Element, creating objective design and development standards for new multifamily development and to designate the property at 4576 Paradise Drive as R-3-10 – Introduction and first reading of ordinance (Community Development Department) PRESENTATIONS P-1. Parks & Recreation Master Plan – Receive presentation and provide feedback (Department of Public Works) TOWN COUNCIL REPORTS TOWN MANAGER REPORT ADJOURNMENT GENERAL PUBLIC INFORMATION ASSISTANCE FOR PEOPLE WITH DISABILITIES In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Town Clerk at (415) 435- 7377. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. AVAILABILITY OF INFORMATION Copies of all agenda reports and supporting data are available for viewing and inspection at Town Hall and at the Belvedere-Tiburon Library located adjacent to Town Hall. Agendas and minutes are posted on the Town’s website, www.townoftiburon.org. Upon request, the Town will provide written agenda materials in appropriate alternative formats, or disability-related modification or accommodation, including auxiliary aids or services, to enable individuals with disabilities to participate in public meetings. Please send a written request, including your name, mailing address, phone number and brief description of the requested materials and preferred alternative format or auxiliary aid or service at least 5 days before the meeting. Requests should be sent to the Office of the Town Clerk at the above address. PUBLIC HEARINGS Public Hearings provide the general public and interested parties an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. Tiburon Town Council November 15, 2023 Oral Communications Late Mail Requests for Copies: Lea Dilena, ldilena@townoftiburon.org From:Michele Conway To:Lea Dilena Subject:Crosswalk at Gilmartin Date:Tuesday, November 14, 2023 2:01:09 PM You don't often get email from micheleconway@gmail.com. Learn why this is important CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. We really need a crosswalk at Gilmartin. Most of the neighborhood agrees with this. As ourrepresentatives, please work with Caltrans to make it happen soon for the safety of our families andchildren!!! Thanks, Michele Conway From:Lucy Conway To:Lea Dilena; Lea Dilena; Jack Ryan; Alice Fredericks; Holli Thier; Jon Welner; Isaac Nikfar Subject:Gilmartin crosswalk Date:Tuesday, November 14, 2023 2:19:25 PM Some people who received this message don't often get email from lucyannconway@gmail.com. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hello, My name is Lucy Conway and I am 14 years old. There is a pedestrian crossing sign right in front of Gilmartin and so I cross there, BUT there have been many times that people don't stop for me and I get nervous. A crosswalk would really help this situation. I looked up a pedestrian crossing sign and this is what it said: The pedestrian crossing sign is a warning sign.Drivers encountering a pedestrian crossing sign should be alert for any people who might walk or run in front of their vehicle. Pedestrian crossing signs provide advance notice of areas of high pedestrian activity so drivers can prepare to slow down or stop on short notice. Drivers encountering pedestrian crossing signs should remain vigilant to prevent an accident from occurring. Drivers are supposed to stop with a pedestrian crossing sign, but they don’t. We need a crosswalk. Most of the neighborhood agrees with this. As our representatives, please work with Caltrans to make it happen soon for the safety of our families and children. Thank you for your time, Lucy Conway From:lida soofer To:Lea Dilena; Lea Dilena; Jack Ryan; Alice Fredericks; Holli Thier; Jon Welner; Isaac Nikfar Subject:CROSSWALK AT GILMARTIN Date:Tuesday, November 14, 2023 7:04:40 PM Some people who received this message don't often get email from lsoofer@gmail.com. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. To the Leaders of Our Town, Thank you for everything you do for our town and our community. I would be remiss if I didn’t reach out to you to please help expedite the plan for a crosswalk at Gilmartin Drive. I have proposed this many times…Istarted 19 years ago and to no avail. I worry all the time that it’s going to take something to happen to someone for a crosswalk to happen. I grew up here in Tiburon and it took a child to get hit and killed at Trestle Glen and Tiburon Boulevard for a crosswalk to be put in. Can you imagine not having a crosswalk there? My husband, myself and my four children often cross Tiburon Boulevard with major caution. We don’t have a choice but to cross that way. The other option of walking opposite traffic along Tiburon Boulevard toward San Rafael Avenue on an unmarked sidewalk seems far more unsafe and risky. I am writing to ask you to sincerely consider this and help us with CalTrans to push this forward. Especially, for the safety of our children who want to ride their bikes safely to school and alleviate traffic on Tiburon Boulevard. In my mind, it’s a WIN WIN for everyone!! Thank you for time, Lida + Kaveh Soofer 16 Gilmartin Drive From:Vanessa everard phillips To:Lea Dilena; Lea Dilena; Jack Ryan; Alice Fredericks; Holli Thier; Jon Welner; Isaac Nikfar Subject:Gilmartin crosswalk Date:Wednesday, November 15, 2023 2:45:17 AM Some people who received this message don't often get email from veverard@gmail.com. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Town Council and Representatives, My family and I live at 840 Stony Hill Rd in Tiburon. Our kids use the bike path to and fromschool and/or to sports and social activities. My husband and I use the bike path not just forwalks with our dog but also with our bikes in lieu of driving and further congesting TiburonBlvd.. We frequently experience the dangers of crossing Tiburon Blvd via foot and bike without acrosswalk. Most of our neighbors, as well, share the same feeling that for safety precautions,we need a crosswalk to be installed across Tiburon Blvd at Gilmartin. Residents and hikers who access Gilmartin from the bike path to hike on the Tiburon ridgetrail or open space are forced to run across tiburon Blvd., as cars rarely stop due to the speed atwhich they are traveling. A crosswalk with flashing lights (similar to the one installed atStewart) would alert traffic to slow down for pedestrians. I am often scared for my kids‘ liveswhen they cross for school or after school sports. As Cal Trans will be working with the town of Tiburon improving the roads, bike paths andcongestion, we ask that you encourage and represent us in installing a crosswalk at Gilmartinand Tiburon Blvd. I would be happy to help if you have further questions or requests. Thank you. Best regards,Vanessa and Shannon PhillipsAnd kids: Petra and Bryce Phillips Sent from my iPhone Begin forwarded message: Hello neighbors, this Wednesday the Tiburon Town Council has a traffic and safety item on the agenda and it might be the right time to get them moving on working with Caltrans on the Gilmartin Crosswalk. If you can send an email to the recipients below with something like, it might really help! We really need a crosswalk at Gilmartin. Most of the neighborhood agrees with this. As our representatives, please work with Caltrans to make it happen soon for the safety of our families and children. comments@townoftiburon.org lstefani@townoftiburon.org jryan@townoftiburon.org afredericks@townoftiburon.org hollithiertiburontowncouncil@gmail.com jwelner@townoftiburon.org inikfar@townoftiburon.org Thanks, Michele Conway 145 Gilmartin Drive From:Kate Healy To:Alice Fredericks; Lea Dilena; hollithiertiburontowncouncil@gmail.org; Isaac Nikfar; Jack Ryan;jstefani@townoftiburon.org; Jon Welner Subject:Gilmartin Crosswalk Date:Wednesday, November 15, 2023 8:20:43 AM Some people who received this message don't often get email from katelhealy@gmail.com. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hello- We desperately need a crosswalk at Gilmartin. My children and are constantly honked at andin fear of being hit by a car when trying to get to the bike path. As our representatives, we ask that you please work with Caltrans to make it happen soon for the safety of our families. Thank you, Kate Healy820 Stony Hill Road DRAFTPage 1 of 3 Tiburon Town Council Minutes #18-2023 November 1, 2023 TOWN COUNCIL REGULAR MEETING DRAFT MINUTES Mayor Ryan called the regular meeting of the Tiburon Town Council to order at 6:30 p.m. on Wednesday, November 1, 2023, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. ROLL CALL PRESENT: COUNCILMEMBERS: Fredericks, Nikfar, Ryan ABSENT: COUNCILMEMBERS: Thier, Welner PRESENT: EX OFFICIO: Town Manager Chanis, Town Attorney Stock, Town Clerk Dilena ORAL COMMUNICATIONS None. INTERVIEWS FOR VACANCIES ON TOWN BOARDS & COMMISSIONS •Robert Wong – Parks, Open Space & Trails Commission •Gautam Malhotra – Parks, Open Space & Trails Commission •Tucker MacLean – Parks, Open Space & Trails Commission •Kathleen Aguilera – Parks, Open Space & Trails Commission •Lina Godfrey – Parks, Open Space & Trails Commission •Emily Chiswick-Patterson – Parks, Open Space & Trails Commission •Michael Shepard – Parks, Open Space & Trails Commission •Michael Moon – Parks, Open Space & Trails Commission •Mike Ghaffary – Parks, Open Space & Trails Commission CONSENT CALENDAR CC-1. Town Council Minutes – Adopt minutes for October 4, 2023 Town Council regularmeeting (Office of the Town Clerk) CC-2.Tiburon Peninsula Chamber of Commerce Business of the Year – Adopt resolution in recognition of the Chamber’s Business of the Year (Office of the Town Clerk) CC-3. United Against Hate Week – Adopt resolution declaring November 12-18, 2023 UnitedAgainst Hate Week in Tiburon (Office of the Town Clerk) MOTION: To adopt Consent Calendar Items No. 1-3, as written. Moved: Fredericks, seconded by Nikfar VOTE: AYES: Fredericks, Nikfar, Ryan ABSENT: Thier, Welner CC-1 DRAFTPage 2 of 3 Tiburon Town Council Minutes #18-2023 November 1, 2023 ACTION ITEMS AI-1. Appointments to Town Boards & Commissions – Consider making one appointment to the Parks, Open Space & Trails Commission (Office of the Town Clerk) MOTION: To appoint Michael Moon to the Parks, Open Space and Trails Commission. Moved: Nikfar, seconded by Fredericks VOTE: AYES: Fredericks, Nikfar, Ryan ABSENT: Thier, Welner AI-2. Employee Incentive Pay – Consider adoption of a resolution that would authorize a one-time, non-pensionable retention incentive for all Town employees and authorize a budget amendment to fund the incentive (Office of the Town Manager) MOTION: To adopt the resolution. Moved: Nikfar, seconded by Fredericks VOTE: AYES: Fredericks, Nikfar, Ryan ABSENT: Thier, Welner AI-3. Parks & Recreation Master Plan Ad Hoc Subcommittee – Review and consider updating membership of ad hoc subcommittee (Office of the Town Clerk) MOTION: To replace Holli Thier with Isaac Nikfar on the Parks & Recreation Master Plan Ad Hoc Subcommittee. Moved: Fredericks, seconded by Ryan VOTE: AYES: Fredericks, Nikfar, Ryan ABSENT: Thier, Welner TOWN COUNCIL REPORTS Councilmember Fredericks spoke about a new BayWAVE GIS tool that is mapping roads and transit stops that could be useful for the first/last mile issue for public transit users. Mayor Ryan said Caltrans hosted a community meeting about their large road project on Tiburon Boulevard. TOWN MANAGER REPORT None. ADJOURNMENT There being no further business before the Town Council of the Town of Tiburon, Mayor Ryan adjourned the meeting at 8:07 p.m. DRAFTPage 3 of 3 Tiburon Town Council Minutes #18-2023 November 1, 2023 JACK RYAN, MAYOR TOWN OF TIBURON ATTEST: LEA DILENA, TOWN CLERK TOWN OF TIBURON PAGE 1 OF 2 STAFF REPORT To: Mayor and Members of the Town Council From: Office of the Town Clerk Subject: Tiburon Parks & Recreation Master Plan Update Reviewed By: _________ Greg Chanis, Town Manager ________ Benjamin Stock, Town Attorney SUMMARY WRT will provide an update to the Town Council on work completed to date. RECOMMENDED ACTION(S) 1. The Town Council to hear presentation and provide feedback to consultant and Town staff. BACKGROUND A Parks and Recreation Master Plan is needed to address challenges presented by changing demographics, evolving needs of the community, the true cost associated with providing park facilities including maintenance, upkeep, and staff time. The planning process must result in a shared, clearly defined vision for the Town’s Parks and Recreation Master Plan driven by input from residents. Public involvement is extremely important to the Town. ANALYSIS WRT will present an update on what they’ve learned through the discovery phase of the Parks and Recreation Master Plan process. They’ll look at the park system geographically, through maps, as well as report on their assessments of each individual park site. They will touch on recreational programming, and how it relates to our community. The results of the comprehensive survey will be presented, as well as themes from what they’ve heard from the community at pop- up events, workshops and walking tours. FINANCIAL IMPACT Staff anticipates no direct fiscal impact to the Town. CLIMATE IMPACT TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Town Council Meeting November 15, 2023 Agenda Item: P-1 Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 2 OF 2 Staff has determined this action will have no significant impact on the Town’s contribution to global climate change. ENVIRONMENTAL REVIEW Staff has preliminarily determined that adoption of this item is statutorily exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15378 of the CEQA Guidelines in that it does not constitute a project under CEQA, and if it were found to constitute a project, it would be exempt pursuant to the general rule set forth in CEQA Guidelines Section 15061 (b)(3). RECOMMENDATION Staff recommends that the Town Council hear the presentation and provide feedback to consultant and Town staff. Prepared By: David O. Eshoo, Engineering Manager EXHIBIT 1 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • PARKS OPEN SPACES ACCESS + CONNECTIVITY Edge permeability X Signage, maps, and City branding X X ADA Accessibility X Presence of crosswalks and crossing signals X Sidewalks & surrounding circulation X Path connectivity within park X Parking X X Nearby bike lanes and adequate bike parking X X Connectivity to Adjacent Trails or Trailheads X X Public Transportation nearby X CONDITION Paving condition X Vegetation condition X Tree canopy coverage & condition X Playground condition X Rec Amenities condition X Buildings / restroom Facilities condition (if applicable)X Trash receptacle condition X Seating /benches condition X FUNCTIONALITY Relevance and variety of uses X Appropriate amenity adjacencies X Distribution of shady and sunny areas X Variety of shrubs and trees X Absence of visible drainage issues or erosion X Presence of amenities (bathrooms, seating, trash receptacles, water fountains, etc.)X Compatibility with neighbors X Level of activation during site visit X SAFETY + COMFORT Adjacent derelict features X Graffiti, vandalism, broken furniture X Evidence of illicit or unauthorized use X Road /traffic calming measures around park X Measures Designed to Ensure Pedestrian and Cyclist Safety X Line of sight/Openness X “Eyes on the street”X Security Presence (camera/personnel onsite etc.)X Ease of Navigation X Nighttime Safety (lighting) X Mitigation of views /noise from surrounding land uses X • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Tiburon Town Council November 15, 2023 P-1: Parks & Recreation Master Plan Late Mail Requests for Copies: Lea Dilena, ldilena@townoftiburon.org From:Tracey Van Hooser To:Lea Dilena; Jack Ryan; Alice Fredericks; Holli Thier; Jon Welner; Isaac Nikfar Subject:Parks and Recreation feedback Date:Tuesday, November 14, 2023 4:17:39 PM Some people who received this message don't often get email from traceyvanhooser@gmail.com. Learn why thisis important CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. I reviewed the Master Plan report and wanted to give the following feedback. 1) I am surprised that the recreation trends analysis does not include pickleball. It is the fastest growing sport in thenation and participation rates rank higher than all other organized sports (lower only than biking and running). https://www.pickleheads.com/blog/pickleball-statistics 2) Many of the survey results include demands for programs for adults and seniors. Pickleball meets this need. But it is also a sport that can be enjoyed by the entire family, especially because Del Mar includes pickleball as part oftheir PE program. 3) Tiburon's population skews older and this is forecasted to increase. Many current tennis players transition topickleball as they age. And pickleball generally has been a sport embraced by older people, although the average ageof players decreases every year as the sport continues to increase in popularity. 4) Currently, access to pickleball courts in Tiburon is limited to those who purchase a key to the tennis courts nearReed School and reserve an hour of time. This means finding 3 other people (nearly all pickleballers play doubles)in advance and coordinating. The best thing about pickleball is the pick-up play (e.g. at Hill courts in Novato). It'sincredibly social and builds community. It's free and open to all. You don't have to plan ahead - just pop in. Manyprivate clubs also offer this type of access but obviously only to their members. It would be great to have this kindof drop-in pickleball accessible to all in Tiburon. 5) The noise of pickleball is a significant consideration. Courts should be situated as far from residences as possible.This is why it is so critical for Tiburon to include pickleball when re-imagining the space around Blackies Pasture. Itis one of the few flat, open areas where noise would not be an issue. Thank you,Tracey From:Dr Kahn To:Lea Dilena Subject:Parks and Recreation Plan comments Date:Tuesday, November 14, 2023 9:26:15 PM You don't often get email from jonathanmkahn@gmail.com. Learn why this is important CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Council members, Thank you for providing the Parks survey and including public comments. I have been around Tiburon since the 1960’s, and am so old that I remember the railroadtrestle and Blackie the horse. I am still involved in the local community, and am currently the President of the HillhavenNeighborhood Association. Blackies pasture and it’s contiguous areas, the Green and the Knoll are a jewel, howeverthey have room for improvement. We should consider volleyball courts , mountain bike track, skate park, kayak launch site (seasonal), hedge maze, a pond for model boats ( similar to Luxembourg gardens in Paris), labyrinths for walking and meditating, climbing wall, mini golf course, bocce ball court,outdoor exercise equipment, maybe even a public pool? I love eucalyptus trees …, in Australia. They should all be removed and replaced by smallerscale shade trees . There are a number of wealthy residents in Tiburon. Fund raising should involve givingnaming rights to people for the new park features. Thank you for your consideration, Jonathan Kahn MD -- Dr K From:DeAnn Biss To:Lea Dilena Subject:Parks & Recreation Plan - Chamber Comments Date:Wednesday, November 15, 2023 5:38:35 PM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Thank you to the Tiburon Park & Recreation Master Plan team. I appreciate the effort and detail put into this process. On behalf of the Tiburon Chamber of Commerce, I would like to encourage the inclusion of Fountain Plaza in this discussion. This public space is the true gateway to our downtown business district and it provides an excellent opportunity for improved wayfinding signage/directories as well as a central gathering place to meet the needs ofcommunity activities & events. The plaza in particular is a place for pop up community engagement - such as a giant chess board installation similar to those seen in other communities. This is a great way to bring visitors and residents together while enjoying the amenities of our downtown businesses. The report section on "downtown enhancements" particularly speaks to the needs of (1) better connecting downtown through wayfinding signs and other visual markers to our parks and community spaces/trails (2) immediate needs for better publicrestrooms downtown to serve both shoreline park and the downtown business area (3) expansion of use of "painted bins" trash receptacles beyond main street into our public parks. As a chamber, we recognize the positive impact our parks and open spaces have on bringing visitors into our town. We want to be part of communicating these public spaces at key geographical touch points to our residents and visitors arriving by ferry, bicycle and cars. Thank you. Sincerely, DeAnn TOWN OF TIBURON PAGE 1 OF 10 4868-4236-9637 v1 STAFF REPORT To: Mayor and Members of the Town Council From: Community Development Department Subject: Public hearing to consider a recommendation from the Planning Commission to amend Chapter 16 (Zoning) of Title IV of the Tiburon Municipal Code to implement provisions of the 2023-2031 Housing Element, including amendments to Divisions 16-14 (Zoning Map), 16-21 (Residential Zones), and 16-100 (Definitions) and amending the Zoning Map to designate property at 4576 Paradise Drive as R-3-10 (Multifamily Residential). Reviewed By: _________ Greg Chanis, Town Manager ________ Benjamin Stock, Town Attorney SUMMARY To adopt revisions to the Zoning Code and Zoning Map to implement provisions of the 2023-2031 Housing Element to create objective design and development (ODDS) standards for new multifamily development and to designate property at 4576 Paradise Drive as R-3-10 (Multifamily Residential). RECOMMENDED ACTIONS 1. Move to read by title only and introduce the ordinance waiving further reading. 2. Hold a roll call vote on the ordinance introduction. BACKGROUND Changes in State housing laws over the past few years have sought to increase housing production by limiting the review authority and processing timeframe for approval of new housing development applications. Determinations regarding the completeness of an application submittal and decisions related to project approval or conditions of approval are required to be based on objective design and development standards (ODDS) identified by the jurisdiction. SB35 which was recently extended by SB 423 to 2036 requires a ministerial approval process based only on compliance with the statutory criteria and adopted ODDS for projects adding two or more new housing units and which provide at least 10% low-income units and pay prevailing construction labor wages. The Housing Accountability Act (HAA) also applies to projects adding two or more housing units and precludes a jurisdiction from denying or reducing density for projects which comply with all adopted ODDS except in very limited circumstances. Design review is still allowed for HAA-qualifying projects, but conditions cannot result in the project being infeasible or increasing the cost of the affordable units. TOWN OF TIBURON 1505 Tiburon Boulevard Tiburon, CA 94920 Town Council Meeting November 15, 2023 Agenda Item: PH-1 Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 2 OF 10 4868-4236-9637 v1 Housing Element 2023-2031 and Environmental Impact Report for the General Plan 2040 Every eight years, the Town of Tiburon, like all local government in California, must update the Housing Element to accommodate housing needs and address barriers to housing production. For the current Housing Element planning cycle of 2023-2031, the Town is required to update its zoning regulations, as necessary, to accommodate the state-mandated Regional Housing Needs Allocation (RHNA) of 639 new housing units. The Town conducted an extensive community engagement program, including numerous public meetings, study sessions, and workshops during 2022 and 2023 to identify housing opportunity sites and to draft the Housing Element 2023-2031 as part of the preparation of Tiburon General Plan 2040. On July 5, 2022, the Town released the initial draft Housing Element for feedback from the community, external agencies, the Town’s board/commissions, and the Town Council. The draft Housing Element was revised numerous times in response to public and agency comments. On May 10, 2023, the Planning Commission reviewed the General Plan 2040, including the 2023-2031 Housing Element, along with the Final Environmental Impact Report for General Plan 2040 (EIR). Following deliberations, the Planning Commission recommended (3-0-2) that the Town Council certify the Final EIR but consider adopting Alternative 3 as the preferred alternative. In addition, the Planning Commission recommended that the Town Council repeal the Town’s 2015-2023 Housing Element and adopt the 2040 General Plan, including the 2023-2031 Housing Element, but consider replacing Site H from the Housing Element’s site inventory with the sites identified in Alterative 3 in the Final EIR. On May 22, 2023, the Town Council conducted a public hearing and adopted resolutions certifying the Final EIR and adopting General Plan 2040, including the 2023-2031 Housing Element. The adopted General Plan 2040 includes the Land Use Map which redesignated the property at 4576 Paradise Drive to Very High Density Residential. Subsequent comments on the adopted Housing Element from the State Department of Community Development (HCD) resulted in additional revisions to the Housing Element. On August 23, 2023, the Planning Commission held a public hearing on the revised Housing Element and recommended adoption to the Town Council with additional edits, again recommending that alternatives to Site H be considered. On September 20, 2023, the Town Council conducted a public hearing and adopted a revised Housing Element including revisions to Program H- ll at the direction of HCD related to Site H as follows: H-ll Rezone 4576 Paradise Drive. Rezone 4576 Paradise Drive to R-3-10 and require a minimum density of 10 units per acre. Develop and adopt objective development and design standards that will permit development of projects on hillside sites including Site H at the capacities assumed in the Housing Sites Inventory (Table 11). On October 18, 2023, the Town was notified by HCD that the revised Housing Element had been determined to be in compliance with State requirements. Objective Design and Development Standards (ODDS) Objective design and development standards are defined by the State Law as, “those that involve no personal or subjective judgment by a public official and being uniformly verifiable by Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 3 OF 10 4868-4236-9637 v1 reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” California Government Code Section 65913.4. Some of the Town’s existing zoning and subdivision codes are objective, such as those that define required building setbacks, height limits, floor area limits, and parking requirements. However, many standards, particularly those that define allowable design attributes of new construction, are subjective and rely on the discretion and interpretations of decision-makers in the design review process. The State legislature has taken steps recently to reduce the amount of subjective discretion jurisdictions have to deny or reduce the density of residential and residential mixed-use projects. Instead, in certain contexts, jurisdictions must rely on objective design and development standards. As a result, the Town initiated the development of ODDS for all new residential and residential mixed-use development in the Downtown Zones (Mixed Use, Main Street and Village Commercial zone) and for residential projects qualifying for streamlined (ministerial) review processing under current and future State housing law in the Neighborhood Commercial zone. Amendments to the Zoning Code and Zoning Map to implement ODDS for commercially zoned properties which constitute the majority of housing opportunity sites identified in the Housing Element were considered by the Planning Commission at a public hearing on May 24, 2023, and recommended to the Town Council for adoption. The Planning Commission recommended that, pending state certification of the adopted Housing Element and since implementation of zoning amendments called for in the adopted Housing Element is not required under state law until January 31, 2024, that proposed rezoning of the property at 4576 Paradise Drive (referred to as Site H in the Housing Element) be eliminated from the proposed code and map amendments. On June 21, 2023, the Town Council adopted Ordinance No . 605 amending Chapter 16 (Zoning) of Title IV of the Tiburon Municipal Code to implement provisions of the 2023-2031 Housing Element and 2040 General Plan Land Use and Downtown Elements, including amendments to Divisions 16-14 (Zoning Map), 16-20 (Requirements for Approval of Development and New Land Uses), 16-21 (Residential Zones), 16-23 (Downtown Zones), 16-32 (Parking and Loading Standards), 16-50 (Application Filing and Processing), 16-52 (Permit Review and Decisions), 16- 70 (Inclusionary Housing and Density Bonuses) and 16-100 (Definitions),adding a new Division 16-20 (Overlay Zones), and amending the Town of Tiburon Zoning Map and thereby adopted the proposed ODDS and Zoning Map amendments for commercially zoned sites but eliminated references to rezoning of 4576 Paradise Drive. ANALYSIS To prepare ODDS that would be applicable to new or remodeled multifamily development in the R-3, R-3-10 and R-4 zones, staff met with the Design Review Board (DRB) on August 10 and September 21, 2023. Staff noted the challenge of creating multifamily ODDS for sloped sites that would achieve the densities called for in the Housing Element. Staff also noted that the starting point for creating objective standards would be the Tiburon Hillside Design Guidelines which were adopted in 1981. While the Guidelines are generally applicable to the construction of new or modified single-family homes, many of the design concepts are also applicable to multifamily development on sloped sites. While most of the guidelines are subjective, many of the concepts and directives could be quantified and thereby made objective. The Guidelines can Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 4 OF 10 4868-4236-9637 v1 be found online at: https://www.townoftiburon.org/DocumentCenter/View/1044/Hillside-Design-Guidelines-and-General-Guidelines-for-New-Construction. The DRB provided guidance and input on drafting the ODDS that included the following: To reduce building bulk, the DRB members discussed: • terracing buildings with the slope, with height limits that parallel the grade, • running principal roof forms perpendicular to the slope, • limiting the height of downslope gables, • incorporating height stepbacks on upper stories near the property perimeters to transition to adjacent development, • limiting projecting decks, and • avoiding large expanse of any material on a single plane. The Board discussed breaking up building massing by clustering a small number of units and separating them with “green seams” – vegetated pedestrian ways and stairs that would form a circulation network. The Board also discussed implications that new development might have on neighbors’ views and grappled with how to address this concern using objective standards developed with no specific project site in mind. To minimize the appearance of parking, the Board encouraged: • locating parking below units, cut into hillsides and largely below finished grade, • limiting the size of parking areas, • limiting the extent of garage doors along street frontages, • limiting the width of driveways and private streets, and • incorporating landscape screening. To blend new buildings with their setting, the Board suggested: • limiting colors ranging from medium to darker tones to be less visible against the dark colors of surrounding vegetation, • defining prohibited materials, • limiting glazing, and • requiring vegetation downslope of new buildings and along street frontages. The recommendations made by the DRB were incorporated into the proposed ODDS, which are described below. Proposed Amendments to the Zoning Regulations The following is a summary of the proposed amendments to the Zoning Code which can be found in Exhibit 1: Amending division 16-14 (Zoning Map) (Section 1 in draft ordinance) Table 1-1 would be amended to add a new R-3-10 Zone which would have the same development regulations as the existing R-3 Zone but would require a minimum density of 10 units per acre in compliance with requirements of the newly adopted Housing Element. Amending division 16-21 (Residential Zones) (Section 2 in draft ordinance) Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 5 OF 10 4868-4236-9637 v1 The new R-3-10 Zone would be added to the purpose statements and to the Land Use and Development Standards tables. In addition, the following changes are proposed for the multifamily zoning districts based on detailed analysis of potential building volumes and achievable densities to conform with the new Housing Element: Front setback: add a minimum 20’ setback for a garage (existing building setback is 15’ minimum) Street side setback: increase from a minimum of 8’ to 15’ (with the minimum 20’ garage setback) Rear setback: increase from a minimum of 8’ to 20.’ Site coverage: increase in the R-4 Zone from 40% to 50% Height: increase from a maximum of 30 feet to 35 feet and 3 stories Although not part of the ODDS, it should be noted that building placement is restricted by General Plan Policy C-9 that requires that development be setback from the top of a perennial, intermittent, and ephemeral stream banks a minimum of 50 feet for projects on sites up to 5 acres in size and setback at least 100 feet on larger sites. Open space standards are revised to allow a combination of both private and community open spaces to count towards the minimum square footage requirements, as was done for multifamily developments in the Downtown ODDS. Detailed ODDS are proposed to be added which are applicable to the R-3, R-3-10 and R-4 Zones and include the following: Building Massing and Stepbacks (16-21.040.D in the draft ordinance) The proposed amendments include several allowable building projections into setbacks to allow design elements to break up the building façade. To break up building massing, the maximum width of any building is limited to 180 feet. Buildings within 10’ of setbacks must incorporate recesses at least every 60 feet (termed “massing increments) to give the appearance of multiple smaller buildings. Finally, corner height stepbacks are required at the corners of buildings within 10’ of street setbacks or adjacent to a paseo (a type of community open space) to better allow views between buildings and further reduce apparent building mass. Residential Frontages (16-21.040.E in the draft ordinance) Street frontages are required to be composed of residential buildings or paseos (a type of community open space) for at least 75% of the available frontage, limiting the amount of parking area which can be adjacent to the street. There is an exception to allow one story structures on steep sites within the required residential frontage area if located behind a minimum 30’ landscaped setback. This section also includes standards for building entrances, proportion of windows and doors on principal facades, requires specific building entry types (porch, stoop and vestibule), limits the width and proportion of garage doors and contains regulations for service areas and utilities/mechanical equipment. Building Design (16-21.040.F in the draft ordinance) Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 6 OF 10 4868-4236-9637 v1 Regulations on exterior building materials include requiring darker shades to blend with darker foliage in open space areas, limiting the use of a single material to a maximum of 40% of the principal façade area to create variation and standards for wood, stucco, concrete, metal, brick and stone finishes. Window types and materials are regulated as well as standards to assure privacy between windows on opposing building walls. Roof requirements include maximum projections, rooflines that are parallel to slope contours and limiting the height of gable ends to reduce the scale of structures from downslope vantage points. Open Space Design (16-21.040.G in the draft ordinance) The proposed amendments define standards for various types of Community Open Space including: • Paseos (landscaped pedestrian passageways which may include associated recreational spaces), • Outdoor Recreation Space (play areas, pools, and other recreational facilities), • Shared Courts (shared space for vehicles, bicyclists and pedestrians such as a parking court), • Roof Terraces, • Community Rooms, and • Community Gardens. Sidewalks are required to be provided along street frontages, provided a sidewalk exists on at least one side of the site. Bicycle improvements which are shown in the General Plan Mobility Element are required to be installed. Landscape Design (16-21.040.H in the draft ordinance) Proposed ODDS include requiring at least 90% of setback areas be landscaped, providing minimum plant size standards, and regulations for fences and walls and for site lighting. Vehicular Access and Parking (16-21.040.I in the draft ordinance) The minimum and maximum width and design of private streets and alleys are defined. Standards are also established for line-of-sight from driveways at street frontages. Parking ratios are deferred to the existing Zoning Code standards, however, bicycle parking is increased to require covered and secure parking based upon the number of bedrooms per unit, as well as some communal/guest bicycle racks. Standards are provided for parking lot design, screening and landscaping. As with the Downtown ODDS, allowances are included for mechanical lifts and tandem parking. Site Preparation and Engineering (16-21.040.J in the draft ordinance) The regulations include prohibiting development on slopes exceeding 30%, although so as to not apply this restriction to small pockets of slope over 30% there is an exclusion of area within 25’ of the perimeter the 30%+ slope area. There is also a prohibition of development on portions of sites over 10% slope that are within a mapped earthquake fault zone, a high Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 7 OF 10 4868-4236-9637 v1 landslide susceptibility zone or a documented prior landslide, slump or natural spring. In addition, sites with these characteristics must have a geotechnical report prepared by a licensed engineer with recommendations for construction which must be incorporated into the project. There are regulations for retaining walls allowing maximum height of 3.5’ for freestanding walls in setback areas and 6’ elsewhere and up to 18’ for walls under buildings to allow for garages cut into slope hillsides. For projects that are subject to ministerial approval under State law, which preclude CEQA review, the ODDS propose standards for assessment of biological and cultural resources, requiring submittal of a report by a qualified biologist or archaeologist with recommendations for construction which must be incorporated into the project. Since current tree alteration and removal standards in Chapter 15A require discretionary tree permits, for projects that qualify for ministerial review the ODDS include requirements to preserve all existing heritage trees (defined in Chapter 15A as trees with circumference over 60” diameter) and to replace other trees with circumference of 20” or more or height over 15’ at a 2:1 ratio with minimum 15-gallon trees. • Amending division 16-100 (Definitions) (Sections 2 and 3 in the draft ordinance) The ODDS adds several new definitions of terms used in the text, and several amendments to existing defined terms. Proposed Amendments to the Zoning Map An amendment to the Zoning Map (Exhibit A found in Exhibit 1) is proposed to comply with the adopted General Plan Land Use Map which designates the property at 4576 Paradise Drive as Vey High Density Residential and with Program H-ll of the adopted Housing Element by rezoning 4576 Paradise Drive from RPD (Residential Planned Development) to R-3-10 (Multifamily Residential). Planning Commission Recommendation The Planning Commission held a public hearing on the proposed Zoning Code and Zoning Map amendments to implement the adopted Housing Element on October 25, 2023. The Commission had extensive discussion about the proposed rezoning of Site H (4576 Paradise Drive). The Commissioners reiterated their past recommendation that alternative housing opportunity sites be identified to reduce the density of development of Site H. However, a majority of the three Commissioners present (Williams and Tsai in favor, Woodward opposed) concluded that, given the inclusion of Site H in the adopted 2023-2031 Housing Element and the prior designation of Site H on the 2040 General Plan Land Use Map as Very High Density Residential, they would recommend adoption of the draft Ordinance and Zoning Map amendment. The Planning Commission Resolution is attached as Exhibit 2. Findings The Town Council may approve the proposed amendments to the zoning regulations and map if the following findings can be made: 1. The change of zone, change of zone boundaries, or other proposed amendment, is consistent with the requirements herein. Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 8 OF 10 4868-4236-9637 v1 The proposed amendments to the zoning regulations are town-initiated in order to provide residential capacity at the densities as specified in the 2023-2031 Housing Element. These amendments include the proposed changes to the zoning of 4576 Paradise Drive to R-3-10 so that the Town may meet the Town’s RHNA, as well as policies and programs that will guide successful implementation of the housing requirements as set forth within the Housing Element and State housing laws. Furthermore, the amendments to the zoning regulations include the ODDS as it relates to site planning and building design on multifamily zoned sites as required under Housing Element Program H-ll. The zoning amendments will provide the Town with objective design and development standards applicable to new or remodeled multifamily development in the R-3, R-3-10 and R-4 zones in compliance with State law and in furtherance of the objectives of the Town’s Zoning regulations set forth in Chapter 16 of the Municipal Code, including without limitation, Section 16-10.020. 2. The change of zone, change of zone boundaries, or other proposed amendment, is consistent with the general plan and any other applicable plans of the town. The proposed amendments to the zoning code and map are consistent with the Tiburon General Plan 2040 and 2023-2031 Housing Element, including but not limited to the following goals, policies and programs: Housing Element Policies H-D1 (Variety of Housing Choices), H-D2 (New Affordable Housing), H-D3 (Key Housing Opportunity Sites), H-D7 (Retention and Expansion of Multifamily Sites at Medium and Higher Density), and Programs H-ff (Design of Multifamily Housing), H-ii (Rezone Housing Opportunity Sites), and H-ll (Rezone 4576 Paradise Drive) in that the multifamily objective development and design standards increase provisions for higher density development with increased building height limits and lot coverage which accommodate a wider range of housing types and level of affordability, and the proposed revision to the Zoning Map rezones 4576 Paradise Drive for higher density multifamily development identified in the Housing Element to provide capacity to meet the Town’s RHNA. 3. The change of zone, change of zone boundaries, or other proposed amendment, will not be detrimental to the public health, safety, or welfare of the town. The proposed zoning amendments are prepared in accordance with the California Environmental Quality Act (CEQA), applicable guidelines, and State law requirements. To ensure public health, safety or welfare of the town, the Town has prepared an Environmental Impact Report which was circulated for public comment from March 16, 2023, through May 1, 2023. The EIR considers the proposed amendments to the Zoning Ordinance and Zoning Map of the Town of Tiburon and discloses all potential environmental impacts including those impacts that may be mitigated to a level of less-than-significant. On May 22, 2023, the Town Council held a duly noticed public meeting and certified the Final EIR including the response to public comments, the adoption of a Statement of Overriding Considerations and a mitigation and monitoring program. A memorandum has been prepared finding the proposed zoning code and map amendments to be consistent with the Environmental Impact Report (EIR) prepared for the General Plan 2040 (Exhibit 3). FINANCIAL IMPACT Staff anticipates that there will be no fiscal impact resulting from adoption of the Ordinance. Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 9 OF 10 4868-4236-9637 v1 CLIMATE IMPACT Climate impacts of implementation of the Housing Element programs related to adoption of ODDS for multifamily development and the rezoning of Site H were addressed in the General Plan 2040 Final EIR which was certified by the Town Council on May 22, 2023, and were found to not be significant. ENVIRONMENTAL REVIEW The proposed zoning amendments are prepared in accordance with the California Environmental Quality Act (CEQA) and applicable guidelines. As noted above, the Town prepared an Environmental Impact Report which was circulated for public comment from March 16, 2023, through May 1, 2023. On May 22, 2023, the Town Council held a duly noticed public meeting and certified the Final EIR and a Statement of Overriding Considerations and a mitigation and monitoring program. Environmental impacts of implementation of the Housing Element programs related to adoption of ODDS for multifamily development and rezoning of Site H (4576 Paradise Drive) were addressed in the General Plan 2040 Final EIR. A memorandum has been prepared finding the proposed zoning code and map amendments to be consistent with the Environmental Impact Report (EIR) prepared for the General Plan 2040 (Exhibit 3) and that, therefore, no supplemental or subsequent EIR is required because none of the circumstances requiring a supplemental or subsequent EIR exist (CEQA Guidelines Section 15162): (a) No substantial changes are proposed in the project which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The Zoning Ordinance and Zoning Map amendments do not create any additional environmental impacts. (b) No substantial changes have occurred with respect to the circumstances under which the project is undertaken. The EIR was certified in May 2023, and no substantial evidence has been submitted showing any change in the circumstances applicable to the project. (c) No new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete, has been submitted to the Town. RECOMMENDATION Staff recommends that the Town Council: 1. Hold a public hearing and consider testimony; 2. Waive first reading of the Ordinance and Read by Title only and introduce the Ordinance as is or make edits. EXHIBITS 1. Draft Ordinance amending the Zoning Code and Zoning Map (redline) 2. Draft Ordinance amending the Zoning Code and Zoning Map (Blackline) 3. Planning Commission resolution recommending the proposed Ordinance Town Council Meeting November 15, 2023 TOWN OF TIBURON PAGE 10 OF 10 4868-4236-9637 v1 4. Memorandum finding consistency with the General Plan 2040 EIR Prepared By: Bob Brown, Consultant, Sustainable Community Planning Dina Tasini, Director of Community Development EXHIBIT 1 EXHIBIT A ORDINANCE NO. XXX N.S. (DRAFT) AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON AMENDING PROVISIONS OF TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE BY AMENDING DIVISIONS 16-14 (ZONING MAP); 16-21 (RESIDENTIAL ZONES); AND 16-100 (DEFINITIONS) AND AMENDING THE TOWN OF TIBURON ZONING MAP WHEREAS, the 2023-2031 Tiburon Housing Element was adopted by the Town Council on May 23, 2023, amended on September 20, 2023, and found to be in substantial compliance with Housing Element law by the State Department of Housing and Community Development (HCD) on October 18, 2023 (“Housing Element”); and WHEREAS, the Housing Element includes an inventory of housing opportunity sites that designates specific densities and zoning classifications for certain parcels as needed to meet the Town’s Regional Housing Needs Allocation (RHNA) and further establishes policies and programs necessary to implement requirements of State housing law; and WHEREAS, amendments to the Zoning Ordinance and Zoning Map are necessary to permit housing at the densities specified within the Housing Element, including changes to the base zoning of parcels; and WHEREAS, the Town has conducted numerous public meetings, study sessions, workshops, and hearings during 2022 and 2023 to identify housing opportunity sites, prepare objective development and design standards to accommodate higher density development which retains the predominant design character of the community, and set the parameters of associated zoning amendments to facilitate higher density development; and WHEREAS, the Zoning Ordinance and Zoning Map amendments were prepared in accordance with applicable statutory requirements taking into account public comment and consistency with the Tiburon General Plan 2040 and related Town policies; and WHEREAS, objective development and design standards and associated rezonings for commercial mixed-use development in the Downtown area were previously introduced by the Town Council on June 7, 2023 following a duly noticed public hearing and adopted on June 21, 2023 as Ordinance No. 605; and WHEREAS, the Design Review Board discussed and provided feedback on multifamily objective development and design standards at duly noticed regular meetings on August 10, 2023 and September 21, 2023; and WHEREAS, the Planning Commission conducted a duly noticed public hearing at a regular meeting on October 25, 2023 and adopted Resolution No. 2023-XX recommending to the Town Council that various text amendments be made to Title IV, Chapter 16 (Zoning) of the Tiburon Municipal Code and a revision to the Zoning Map to further implement programs on the Tiburon Housing Element; and WHEREAS, on XXXXX, 2023, the Town Council held a duly noticed public hearing and has heard and considered all public testimony on the proposed Ordinance; and WHEREAS, the Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed; and Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 2 of 39 WHEREAS, the Town Council finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare; and WHEREAS, the Town Council has found that the amendments made by this Ordinance are consistent with the goals and polices of the Tiburon General Plan 2040 and other adopted ordinances and regulations of the Town of Tiburon, and further the intent and purposes of General Plan goals and policies; and WHEREAS, in accordance with the California Environmental Quality Act (CEQA), the Town of Tiburon prepared an Environmental Impact Report (SCH Number 2022100473) which was circulated for public comment from March 16, 2023 through May 1, 2023 and certified by the Tiburon Town Council on May 22, 2023, which analyzed the policies and implementing programs of the Tiburon Geneal Plan 2040, including the 2023-2031 Housing Element; and WHEREAS, the certified EIR considered the proposed amendments to the Zoning Ordinance and Zoning Map of the Town of Tiburon and disclosed all potential environmental impacts including those impacts that may be mitigated to a level of less-than-significant; and WHEREAS, the Town Council of the Town of Tiburon considered the Final EIR including the response to public comments, adopted a Statement of Overriding Considerations, and certified the EIR on May 22, 2023 following a duly noticed public hearing; and WHEREAS, the Town Council of the Town of Tiburon conducted a duly and properly noticed public hearing to take public testimony and consider this Ordinance. NOW, THEREFORE BE IT RESOLVED by the Town Council of the Town of Tiburon that the amendments to the Tiburon Municipal Code and Tiburon Zoning Map are consistent with the Tiburon General Plan 2040 including the following goals, policies and programs: 1. The foregoing recitals are true and correct and are incorporated herein by reference. 2. The project is consistent with Housing Element Policies H-D1 (Variety of Housing Choices), H-D3 (Key Housing Opportunity Sites), H-D7 (Retention and Expansion of Multifamily Sites at Medium and Higher Density), and Programs H-ff (Design of Multifamily Housing), H-ii (Rezone Housing Opportunity Sites), H-ll (Rezone 4576 Paradise Drive), in that the project rezones the property at 4576 Paradise Drive to a new zoning district of R-3-10 requiring a minimum density of 10 dwelling units per acre and a maximum of 12.4 units per as required by Housing Element Program H-ll and adopts objective development and design standards for new multifamily housing developments, including those on hillside sites, as required under State housing laws and Housing Element Programs H-ii and H-ll. The proposed objective development and design standards for multifamily housing development allow for multifamily units to be constructed at densities called for in the 2023-2031 Housing Element which will result in new unit types and sizes to diversify the housing opportunities in the community, providing units which will be more affordable by design. They also serve to streamline the development approval process by providing objective, quantified and known requirements for new multifamily development proposals. H-D1 Variety of Housing Choices. In response to the broad range of housing Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 3 of 39 needs in Tiburon, the Town will strive to achieve a mix of housing types, densities, affordability levels and designs. This will include an adequate supply and variety of housing opportunities to meet the needs of Tiburon’s workforce and their families, striving to match housing types and affordability with household income. The Town will work with developers of non-traditional and innovative housing approaches in financing, design, construction, and types of housing that meet local housing needs. Housing opportunities for families with children should not be limited because necessary facilities are not provided on site. H-D2 New Affordable Housing. Facilitate the design, approval, and construction of affordable housing projects using a variety of mechanisms, including mixed- use development incentives, inclusionary zoning, density bonus programs, affordable housing overlay zones, and create of accessory dwelling units. H-D3 Key Housing Opportunity Sites. Given the diminishing availability of developable land, the Town will identify housing opportunity areas and sites where a special effort will be made to provide workforce and special needs affordable housing. The Town will take specific actions to promote the development of affordable housing units on these sites (identified in the Implementing Programs). H-D7 Retention and Expansion of Multifamily Sites at Medium and Higher Density. The Town will strive to protect and expand the supply and availability of multifamily and mixed use infill housing sites for housing. The Town will not re-designate or rezone residential land for other uses or to lower densities without re-designating equivalent land for higher density multifamily development. H-ff Design of Multifamily Housing. Conduct design review to assure excellence of design in new multifamily housing development and utilize objective design and development standards for applicable projects. H-ii Rezone Housing Opportunity Sites. Establish new Mixed Use, Main Street, and R-4 zoning districts and objective design and development standards for those districts that facilitate development at the realistic unit capacities and densities established in Table 11 for each site. Rezone Sites 1-7, 9, and A-F to Mixed use, Site 8 to R-4, and Site G to Main Street. As reflected in Table 11, Sites 1-9 are identified to accommodate a portion of the lower-income RHNA. These will be rezoned to: 1. require the minimum density identified in Table 11; 2. permit owner-occupied and rental multifamily uses by right pursuant to Government Code section 65583.2(i) for development in which 20 percent or more of the units are affordable to lower income households; 3. allow 100 percent residential use; and 4. require residential use occupy at least 50 percent of the total floor area of a mixed use project. H-ll Rezone 4576 Paradise Drive. Rezone 4576 Paradise Drive to R-3-10 and require a minimum density of 10 units per acre. Develop and adopt objective Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 4 of 39 development and design standards that will permit development of projects on hillside sites including Site H at the capacities assumed in the Housing Sites Inventory (Table 11). 3. The Town Council hereby finds that the action to adopt this Ordinance and the amendments to the Zoning Code and Zoning Map have been considered and analyzed in the certified Final EIR for General Plan 2040. No supplemental or subsequent EIR is required because none of the circumstances requiring a supplemental or subsequent EIR exist (CEQA Guidelines Section 15162): (a) No substantial changes are proposed in the project which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The Zoning Ordinance and Zoning Map amendments do not create any additional environmental impacts. (b) No substantial changes have occurred with respect to the circumstances under which the project is undertaken. The EIR was certified in May 2023, and no substantial evidence has been submitted showing any change in the circumstances applicable to the project. (c) No new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete, has been submitted to the Town. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. AMENDMENTS TO CHAPTER 16, DIVISION 14 Tiburon Municipal Code Title IV, Chapter 16, Division 14 (Zoning Map) is hereby amended to read as follows (additions in underline, deletions in strikethrough text): 16-14 Zoning Map 16-14.010 - Purpose. The purpose of division 16-14 is to establish the zones applied to property within the town and adopt the town's zoning map and planned development map. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010) 16-14.020 - Zoning map and zones. The council hereby adopts the Town of Tiburon Zoning Map (hereafter referred to as the "zoning map") and "planned development map", which are on file with the department. The zoning map and planned development map are hereby incorporated into this zoning ordinance by reference as though they were fully included here. The zones referred to herein and the boundaries of such zones shall be shown upon the zoning map. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 5 of 39 A. Zones established. The town shall be divided into zones that implement the general plan. The zones shown in table 1-1 are hereby established, and shall be shown on the zoning map. TABLE 1-1 ZONES Zone Symbol Name of Zone General Plan Land Use Designation Conforming with Zone R-1 Single-family residential zone Medium High Density (MH) R-1-B-A Bel Aire single-family residential zone Medium High Density (MH) R-1-B-2 Modified single-family residential zone Medium High Density (MH) RO Residential open zone Medium Density (M) and Medium Low Density(ML) R-2 Two-family residential zone High Density (H) R-3 Multifamily residential zone Very High Density (VH) R-3-10 Multifamily residential zone Very High Density (VH) R-4 Multifamily residential zone Very High Density – 25 (VH-25) RPD Residential planned development zone Low Density (L) and PD-R Planned Development Residential (PD-R) RMP Residential multiple planned zone Very High Density (VH) and Very High Density/Affordable Housing Overlay (VH/AHO) M Marine zone Marine (Marine) O Office zone Office (O) NC Neighborhood commercial zone Neighborhood Commercial (NC) NC/AHO Neighborhood commercial/affordable housing overlay zone NC/AHO Neighborhood Commercial/Affordable Housing Overlay VC Village commercial zone Village Commercial (VC) MS Main Street zone Main Street (MS) MU Mixed use zone Mixed Use (MU) P Public/quasi-public zone Public/Quasi-Public (P) OS Open space zone Open Space (OS) F Flood hazard overlay zone All HPO Historic protection overlay zone All P&R Parks and recreation zone Parks and Recreation (Park) B. Zoning map and planned development map changes. If, in compliance with the provisions herein, changes are made in zone boundaries or other matter portrayed on the zoning map or planned development map, such changes shall be made on the map or maps promptly after the amendment has been approved by the council, together with an entry on the map or maps indicating the authority for such change and the date when such change became effective. C. Interpretation of Zone Boundaries. 1. At all points on the zoning map where a zone is defined as being bounded by or running to a public street (other than a state highway), it shall be construed as being bounded by and running to the center of such street. In like manner, the zoning map shall in all cases be construed as bounding each zone by the centerline Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 6 of 39 of each street (other than a state highway) upon which it shall abut, notwithstanding the fact that the demarcation of such zone shall be shown on the map as the sideline of such street. It is declared to be the intent and purpose of this division to bound all zones by the centerline of the streets upon which they abut, whether or not conveyances of abutting lands shall have gone to the centerlines of such streets as provided in Civil Code section 1112. However, in instances where an abutting parcel or area not located within the town is located on the opposite side of any street located in the town, the town zoning shall extend the entire width of the street and not terminate at the centerline of the street. For any state highway or state highway segment located in the town, the entire right-of-way of said highway or highway segment in the town shall be conclusively construed as being zoned Public/Quasi-Public (P), regardless of abutting zoning or jurisdictional lines. 2. If uncertainty exists in any boundary indicated on the zoning map or the planned development map, the director shall determine the location of such boundary pursuant to provisions of subsection 16-12.020 (Authority for Interpretation). 3. Zone boundaries shall extend vertically upward and downward from the ground surface. 4. If there is uncertainty about the location of any zone boundary shown on the official zoning map, the following rules are to be used in resolving the uncertainty: a. Where zone boundaries approximately follow lot, alley, or street lines, the lot lines and street and alley centerlines shall be construed as the zone boundaries; b. If a zone boundary divides a lot and the boundary line location is not specified by distances printed on the zoning map, the location of the boundary will be determined by using the scale appearing on the zoning map; c. Where a public street or alley, excluding a state highway, is officially vacated or abandoned, the property that was formerly in the street or alley will be included within the zone of the adjoining property on either side of the centerline of the vacated or abandoned street or alley; and d. Any property not clearly designated on the zoning map in any of the zones established by article II (Zones and Allowable Land Uses) shall hereby be designated as being in the RPD (residential planned development) zone (subsection 16-21.020.F.1 [RPD (residential planned development) zone]). (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 561 N.S. , § 2(A), 9-2-2015) Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 7 of 39 SECTION 2. AMENDMENTS TO CHAPTER 16, DIVISION 21. Tiburon Municipal Code Title IV, Chapter 16, Division 21 (Residential Zones) is hereby amended to read as follows (additions in underline, deletions in strikethrough text): 16-21 Residential Zones 16-21.010 - Purpose. The purpose of division 16-21 is to establish the land uses that may be allowed within the residential zones established by section 16-14.020 (zoning map and zones), determine the types of zoning permit (if any) required for each use, and provide standards for site layout and building size. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010) 16-21.020 - Purposes of the residential zones. The purpose of each residential zone is as follows. A. R-1 (single-family residential) zone. The R-1 zone is intended to promote and encourage the maintenance of a suitable environment for suburban family living on smaller single-family residential lots in older developed areas of the town. The R-1 zone conforms with general plan land use designation medium high density (MH). B. R-1-B zones. The R-1-B zones are comprised of properties formerly located in unincorporated Marin County that were annexed to the town after incorporation in 1964. These properties were generally developed under County of Marin zoning districts with setbacks that do not correspond to other single-family residential zones in the town. The R- 1-B zones conform with general plan land use designation medium high density (MH). R-1- B zones have modified setbacks in order to reduce the creation of nonconforming structures that would otherwise result from annexation of properties that were generally developed with different setback requirements. 1. R-1-B-A (Bel Aire single-family residential) zone. The R-1-B-A zone serves the same purpose as the R-1 zone but is intended to reflect the different front and side setbacks historically found in the Bel Aire Estates neighborhood. The principal uses, conditional uses, and development standards for the R-1-B-A zone shall be the same as the R-1 zone with the exception of the front and side setbacks established in section 16-21.040 (residential zones development standards). 2. R-1-B-2 (modified single-family residential) zone. The R-1-B-2 zone serves the same purpose as the R-1 zone but is intended to reflect the different front and side setbacks with which the properties were developed. The principal uses, conditional uses, and the development standards for the R-1-B-2 zone shall be the same as the R-1 zone with the exception of the front and side setbacks established in section 16-21.040 (residential zones development standards). C. RO (residential open) zone. The RO zone is intended to promote and encourage the maintenance of a suitable environment for low-density, single-family development on lots larger than those typically found in the R-1 zone. There are two RO zones, RO-1 and RO-2, each having its own Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 8 of 39 development standards. The permitted and conditional uses are the same for both zones. The RO- 1 zone conforms with general plan land use designation medium low density (ML). The RO-2 zone conforms with general plan land use designation medium density (M). D. R-2 (two-family residential) zone. The R-2 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for suburban family living in areas appropriate by location and character for single-family and two-family dwellings. The R-2 zone conforms with general plan land use designation high density (H). E. R-3 (multifamily residential) zone. The R-3 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for residence in areas appropriate by location and character for multifamily dwellings. The R-3 zone conforms with general plan land use designation very high density (VH). F. R-3-10 (multifamily residential) zone. The R-3-10 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for higher density residences in areas appropriate by location and character for multifamily dwellings. The R- 3-10 zone conforms with the general plan land use designation very high density (VH) and requires a minimum residential density of 10 dwelling units per acre. G. R-4 (multifamily residential) zone. The R-4 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for higher density residences in areas appropriate by location and character for multifamily dwellings. The R-4 zone conforms with general plan land use designation very high density (VH-25) and requires a minimum residential density of 20 dwelling units per acre. H. Planned residential development zones. There are numerous planned developments where applicable zoning regulations have been previously established by adoption of master plans, precise plans, precise development plans, conditional use permits, or similar zoning permits. These planned developments are depicted on the map entitled "Planned Development Map," incorporated as section 16-14.020 (zoning map and zones). A current list of the applicable ordinances and/or resolutions governing the planned developments is on file at the community development department. 1. RPD (residential planned development) zone. The RPD zone is intended to protect and preserve open space land as a limited and valuable resource without depriving owners of a reasonable use of their property for residential purposes. The regulations of the zone are designed to insure, to the extent feasible, the conservation of natural resources and the retention of land in its natural or near natural state in order to, among other things, assist in the containment of urban sprawl and protect the community from the hazards of fire, flood, seismic and other catastrophic activity, and to otherwise implement the goals and policies of the general plan. The RPD zone conforms with general plan land use designation low density (L) and PD-R planned development residential (PD-R). 2. RMP (residential multiple planned) zone. The RMP zone has the same purposes and shall be governed by the same regulations as the RPD zone (Subsection 1. above) except as otherwise provided herein. The RMP zone conforms with general plan land use designation very high density (VH). (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 564 N.S. , §§ (B), (C), 4-6-2016) Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 9 of 39 16-21.030 - Residential zones allowable land uses and permit requirements. A. General permit requirements. Table 2-1 identifies the uses allowed by this zoning ordinance in each residential zone, and the zoning permit required to establish each use, in compliance with section 16-20.030 (allowable land uses and zoning permit requirements). Permitted uses are shown as "P" uses in table 2-1. B. Permit requirements for certain specific land uses. Where the last column in table 2-1 ("Specific Use Regulations") includes a section number, the referenced section determines whether the use requires a conditional use permit. The referenced section may also refer to other requirements and standards applicable to the use. C. Additional uses. Additional specific uses which are, in the determination of the director, similar or accessory to those uses listed in table 2-1 shall be permitted only when a conditional use permit is granted therefore as provided in section 16-52.040 (conditional use permit) and shown as "U" uses in table 2-1. D. Improvement requirements. 1. R-2 zone. Conversion of existing two-family or multifamily dwellings in the R-2 zone into single-family dwellings or buildings containing fewer dwelling units shall be subject to approval of a conditional use permit the review authority as provided in section 16-52.040 020 (conditional use permitsite plan and architectural review) except for projects which under State law qualify for ministerial review. 2. R-3, R-3-10, R-4 zones. All improvements proposed for the R-3, R-3-10, and R-4 zone other than alterations, additions or other changes to existing structures are subject to approval of a conditional use permitthe review authority as provided in section 16- 52.040020 (conditional use permitsite plan and architectural review) except for projects which under State law qualify for ministerial review. 3. RPD and RMP zones. Approval of a precise development plan in compliance with the provisions of section 16-52.060 (precise development plan) is required prior to subdivision, grading, or improvements of any kind in the RPD and RMP zones. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 10 of 39 TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specific Use Regulations LAND USE (1) R-1 R- 1- B R O R-2 R-3 and R- 3-10 R-4 RP D RM P AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6) U U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities — — — — — — U U Open space use — — — — — — P P Wildlife sanctuaries — — — — — — U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2) U U U — — — U U Title VI, 20- 5.1 Golf course/country club U U U — — — U U Library, museum U U U U U U — — Parochial or other nonprofit school - elementary, secondary, or college U U U U U U U U Philanthropic or charitable facility U U U U U U U U Private residential recreation facilities U U U U U U U U Public park P P P P P P P P Playground U U U U U U U U Publicly owned building or facility U U U U U U U U Religious places of worship U U U U U U U U RESIDENTIAL USES Home occupation P P P P P P P P 16-52.110 Intermediate or community care facility (3) P P P P P P P P Multifamily dwelling — — — — P P — P Accessory dwelling unit /Junior accessory dwelling unit (5) MP M P M P MP MP MP MP MP 16-52.100/ 16-52.105 Single-family dwelling P P P P P — P P Single-family dwelling providing room/board for 1 paying guest for a minimum of 31 consecutive days; vacation rentals are not permitted P P P P — — P P Two-family dwelling, attached — — — P — — — P Two-family dwelling, detached — — — P(4 ) — — — — 16-40.020 Transitional, supportive housing P P P P P P P P Key to Zoning District Symbols R-1 Single-Family Residential R-3 Multifamily Residential R-1- B Modified Single-Family Residential R-3- 10 Multifamily Residential RO Residential Open R-4 Multifamily Residential R-2 Two-Family Residential RPD Residential Planned Development RMP Residential Multiple Planned Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 11 of 39 Notes: (1) See article X (definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two- family dwelling exception, as set forth in section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003, are deemed legal nonconforming structures subject to provisions of division 16-62. (5) Also subject to the standards adopted by separate resolution of the town council. (6) Except for chicken keeping and beekeeping as set forth in section 16-40.070. TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed LAND USE (1) PERMIT REQUIRED BY DISTRICT Specific Use Regulations R-1 R-1- B RO R-2 R-3 and R-3- 10 R-4 RPD RMP SERVICES - GENERAL Bed and breakfast facility (B&B) U U U — — — — — Child day-care facilities, small family day-care homes - up to 8 children (5) P P P P P P P P Health & Safety Code 1597.3 et seq. Child day-care facilities, large family day-care homes - 9 to 14 children (5) MP MP MP MP MP MP MP MP Health & Safety Code 1597.46— 1597.465 Child day-care center - 15 or more children U U U U U U U U Medical services - Hospital U U U U U U U U Real estate tract office U U U U U U U U TRANSPORTATION, COMMUNICATIONS & INFRASTRUCTURE Public utility and communication equipment building U U U U U U U U Wireless communication facility, amateur or professional U/MP U/MP U/MP U/MP U/MP U/MP U/MP U/MP Government Code 65850.6 Key to Zoning District Symbols R-1 Single-Family Residential R-3 Multifamily Residential R-1- B Modified Single-Family Residential R-3- 10 Multifamily Residential RO Residential Open R-4 Multifamily Residential R-2 Two-Family Residential RPD Residential Planned Development RMP Residential Multiple Planned Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 12 of 39 Notes: (1) See article X (definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two- family dwelling exception, as set forth in section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003, are deemed legal nonconforming structures subject to provisions of division 16-62. (5) When located in a single-family dwelling. (6) See Section 16-42.040 for specifics. Certain modifications, replacements and removals are subject to ministerial review and approval under federal law or are eligible for streamlined discretionary review. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 541 N.S. § 2(A), 8-15-2012; Ord. No. 542 N.S., §§ 2(C)(1), (2), 8-15-2012; Ord. No. 554 N.S. , § 2(A)(Exh. A), 2-18-2015; 555 N.S. , § 2(A)(Exh. A), 2-18-2015; Ord. No. 558 N.S. , § 2, 6-3-2015; Ord. No. 562 N.S ., § 2(A)(Exh. A), 11-18-2015; Ord. No. 568 N.S., § 2(A), 2-1-2017; Ord. No. 577 N.S. , § 2(A), 5-16-2018) 16-21.040 - Residential zones development standards. A. Development standards. Each subdivision shall comply with the minimum lot size requirements in table 2-2. Subdividers are advised that division 16.40 (standards for specific land uses) may require a specific land use to be on a lot larger than required by this section. Larger lots may be required based on slope restriction, refer to table 14-7.3 in Municipal Code chapter 14 (subdivision of land) for calculations of minimum lot size based on slope. Construction in flood hazard zones shall conform to the requirements in chapter 13D (flood damage prevention). Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 13 of 39 TABLE 2-2 RESIDENTIAL ZONES DEVELOPMENT STANDARDS Zone Minimum Lot Area Maximum Lot Coverage Req- uired Lot Width Minimum Setback Requirements (1) Height Limit Maximum FAR Maximum Density Front Sides Rear Primary Accessory R-1 10,000 square feet (s.f.) 1-story development: same as max. FAR; 2-story or multi-story development: 30% 40 ft. 15 ft. 8 ft. 20% of lot depth or 25 ft. (whichev er is less) 30 ft. 15 ft. See Section 16-52.020.I 4.4 du/acre R-1- B-A 20 ft. 6 ft. 4.4 du/acre R-1- B-2 25 ft. 10 ft. 4.4 du/acre RO-1 40,000 s.f. 15% 70 ft. 30 ft. 20 ft. 1.1 du/acre RO-2 20,000 s.f. 15% 50 ft. 30 ft. 15 ft. 3.0 du/acre R-2 7,500 s.f. (2) 35% 40 ft. 15 ft. 8 ft. 11.6 du/acre 3,750 s.f. per dwelling (2) R-3 10,000 s.f. 30% ― 15 ft. generally (5,6), except 20 ft. to garage(s) 8 feet street side same as front; interior side 20 ft. generally (5,6). 8 feet 20 ft. (5, 6) 30 ft. 35 ft. and 3 stories (6, 7) .60 12.4 du/acre 3,500 s.f. per dwelling R-3 -10 10,000 s.f. 10.0 du/acre minimum; 12.4 du/acre maximum 3,500 s.f. per dwelling R-4 10,000 s.f. 40% 50% ― 1.0 20 du/acre minimum; 25 du/acre maximum 1,750 s.f. per dwelling RPD Established by adopted master plan/precise plan or precise development plan for development 30 ft. (3) 15 ft. (3) See section 16-52.020.I See Table LU-3 of General Plan RMP Established by adopted master plan/precise plan or precise development plan for development .30 (4) 12.4 du/acre Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 14 of 39 Notes: (1) Some older planned development approvals do not specify setback requirements, in which case appropriate setbacks are determined by site plan and architectural review. (2) In the R-2 zone, where a lot is contiguous with a submerged or tide lot that lies entirely or partially in the M zone, and all of such property is under the same ownership, the total area of such contiguous lots may be used in determining whether the minimum lot area requirements have been met. Notwithstanding any other provision of this Section to the contrary, no building or accessory building or part thereof shall extend seaward of the zone boundary line between the R-2 zone and the M zone other than as may be permitted in compliance with the regulations of the M zone (division 16-25). (3) Unless otherwise specified in a precise development plan. (4) Unless otherwise specified in a Precise Development Plan. (5) Projections into setbacks shall be allowed consistent with subsection 16-21.040.D.1 (allowable projections). (6) Minimum street side and interior side setbacks shall be 5 feet for detached garage(s) with a height not less than 1 story and 15 feet. (7) Building stepback provisions apply, as described in subsection 16-21.040.D.4 (corner stepbacks). B. Open space standards. 1. R-2 zone usable open space. Minimum required usable open space per dwelling unit in the R-2 zone is three hundred seventy-five square feet with a minimum dimension of not less than twelve feet. 2. R-3, R-3-10, and R-4 zones amount of usable open space. Minimum required usable open space per dwelling unit in the R-3, R-3-10, and R-4 zones are as set forth below, consistent with subsection 16-21.040.B.3: a. Per efficiency or studio apartment: one hundred fifty square feet; b. Per one bedroom apartment: two hundred square feet; c. Per two-bedroom apartment: two hundred fifty square feet; d. Per three or more bedroom apartment: three hundred square feet. The amount of usable open space required may be met using a combination of private open space or community open space. At least 50 square feet of private open space shall be provided as defined in subsection 16-21.040.G.1 (private open space). The required amount of usable open space may also be comprised of community open space as defined in subsection 16-21.040.G.2 (community open space). Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 15 of 39 C. Density standards. 1. Undeveloped land. Maximum residential densities for undeveloped land in the RPD and RMP zones shall be as established on the land use diagram in the land use element of the general plan. 2. RPD zone developed land. Maximum residential densities for developed land in the RPD zone shall be as established by the adopted master/precise plan, precise development plan, or equivalent zoning permit for the development, as finalized by the recorded subdivision map(s) for the development. Planned developments with recorded subdivision maps are considered to be fully subdivided and are not subject to further subdivision and shall not exceed allowable general plan density limits. 3. RMP zone developed land. Maximum residential densities for developed land in the RMP zone shall be as established by the adopted master and/or precise plans, precise development plans, or condominium plan for the development, as finalized by the recorded subdivision map, or condominium plan, for the development. Planned developments with recorded subdivision maps and/or condominium plans are considered to be fully subdivided and are not subject to further subdivision, and shall not exceed allowable general plan density limits. D. Building massing and stepbacks in R-3, R-3-10, and R-4 Zones. 1. Allowable Projections. Specified building elements may project into required setbacks and the required minimum width for paseos, in accordance with Table 2.2A Allowable Projections into Setbacks. These requirements shall supersede subsection 16-30.30.F (allowed projections into setbacks). Table 2-2A Allowable Projections into Setbacks and Paseos Allowable Projection Maximum Projection Awnings and Rigid Canopies (1) 30 inches Balconies and Bay Windows (1,2) 36 inches, may not exceed a width of 12 feet Cornices and Eaves 12 inches Porches and Stoops 7 feet, excluding stairs Wall-Mounted Lighting and Planter Boxes 18 inches (1) Not allowed more than 25 feet above finished grade. (2) Balconies or bay windows shall be separated by at least 4 feet. 2. Building width and separations. A building shall not be more than 180 feet in width or depth, as illustrated in Figure 1-1: Building Width and Massing Increment. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 16 of 39 3. Massing increment. Building massing shall not be more than 60 feet in width where it is within 10 feet of minimum required property-line setback from a property line, unless it is separated by a building recess into multiple massing increments, each with a massing increment of not more than 60 feet in width, as illustrated in Figure 1-1: Building Width and Massing Increment. A building recess that is used to separate adjacent massing increments shall have a depth of at least 6 feet from the principal façade planes that it abuts, and a minimum width of 8 feet. Figure 1-1: Building Width and Massing Increment 4. Corner stepbacks. Building mass at building corners shall be stepped back, where it is within 10 feet of a minimum property-line setback. Additionally, building mass at building corners shall be stepped back where a minimum required property-line setback and minimum required paseo width as described in subsection 16-21.040.G.2a (paseos) intersect. Where a building corner stepback is required, then the building area that is above the ground floor shall be stepped back not less than 6 feet beyond the minimum required property-line setback and/or minimum required paseo width, and for a width of not less than 10 feet in either direction from where such setbacks intersect, as illustrated in Figure 1-2: Corner Stepbacks. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 17 of 39 Figure 1-2: Corner Stepbacks E. Residential Frontages in R-3, R-3-10, and R-4 Zones. 1. Residential street frontages. Not less than 75 percent of the available street frontage(s) adjacent to a public right-of-way shall be occupied by residential frontage, paseo, or some combination of the two, as illustrated in Figure 1-3: Street Frontage Continuity and described in subsection 16-21.040.E.3 (residential frontage design) and section 16-21.040.G (open space design), except that where project site has less than 100 linear feet of property line along a street, then the minimum residential street frontage can be reduced to allow vehicular access consistent with subsection 16-21.040.I.1 (vehicular access). 2. Residential frontages along community open space. Where buildings abut a community open space, not less than 75 percent of the building edge shall be a residential frontage, as described in subsection 16-21.040.E.3 (residential frontage design). Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 18 of 39 Figure 1-3: Street Frontage Continuity 3. Residential frontage design. Residential street frontages and residential frontages shall conform to the following standards. a. The residential ground floor shall not be more than 4 feet above finished grade, except within 20 feet of a vehicle entrance to a below-grade garage used by multiple households. b. Window and/or door openings shall comprise at least 25 percent of the surface area of the principal façade plane of each massing increment, as illustrated in Figure 1.4: Residential Window Area. c. Principal building entrances shall be accompanied by a porch, stoop, or vestibule with forecourt, are illustrated in Figure 1-5: Residential Entrance Types. Figure 1-4: Residential Window and Door Area Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 19 of 39 Figure 1-5: Residential Entrance Types Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 20 of 39 4. Building entry and pedestrian access. Sidewalks that lead to principal building entrances shall connect directly to a public street as described in subsection 16- 21.040.G.3 (sidewalks and bicycle facilities along public streets), or connect indirectly to a public street along a paseo as described in subsection 16- 21.040.G.2.a (paseos), a shared court as described in subsection 16-21.040.G.2.c (shared courts), or along a sidewalk along a private street as described in 16-21.040.I.2 (private streets). 5. Garage doors and openings. Garage doors and garage openings shall not comprise more than 50% of the width of each massing increment, as illustrated in Figure 1-6: Garage Doors & Openings. Garage openings that are used for up to 2 vehicles (or up to 4 vehicles if using tandem parking or mechanical lifts) shall be accompanied by garage doors that are not more than 18 feet in width. Adjacent garage doors shall be separated by a column or vertical panel not less than 12 inches in width. Figure 1.6: Garage Doors & Openings Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 21 of 39 6. Service area location and screening. Service areas shall be located: a. at least 30 feet from street rights-of-way; b. enclosed within a building envelope; or c. screened from view of public sidewalk(s) with a solid wall or fence at least 42 inches in height. 7. Ground-level utility boxes and equipment. Ground-level utility boxes and equipment, including but not limited to back-flow preventers, air conditioner units, transformer boxes, gas and electric meters, generators and other utilities, shall not be located within a front or street side setback. If this is determined to be technically infeasible by a licensed engineer, ground-level utility boxes and equipment may be located in the front setback but shall be screened from all direct sight lines from public sidewalks by shrubs that can be expected to grow to the same height as the box or equipment. F. Building Design in R-3, R-3-10, and R-4 Zones. 1. Exterior materials. a. Greyscale. Exterior finishes, garage doors, and roofs shall have a grey scale (color value) that is at least 30 percent and not more than 70 percent. The color of front doors, window frames, and mullions are exempt from this requirement. b. Prohibited finishes. Prohibited exterior finishes include: unfinished cinder block; unfinished cement block; mirrored glass; and vinyl and aluminum products, including those intended to simulate wood. c. Extent of single finish. No single finish material shall comprise more than 40 percent of the surface area of each principal façade plane, inclusive of doors and windows, as illustrated in Figure 1-7: Extent of Single Material. The exterior finish material must vary in two or more of the following ways: - vary among wood, stucco, metal, and cementitious materials; - vary among shingles, board-and-batten, shiplap, panels, and uninterrupted planes; - vary the color hue of the exterior finishes by at least 30 degrees within a 360-degree color wheel and/or vary the color grey value by at least 20 percent. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 22 of 39 Figure 1.7: Extent of Single Material d. Wood. Exterior application of wood shall be comprised of one of the following: wood modules comprised of lap siding, vertical plank siding with or without batten, horizontal plank siding, or shingles, or exterior plywood with battens to cover joints and horizontally spaced not less than 2 feet on center. e. Stucco and concrete. For exterior application of stucco and concrete, a horizontal expansion joint or control joint shall be placed within one foot of each floor level, and a vertical expansion joint shall occur at least every fifteen feet. For stucco, expansion and control joints shall be reinforced with metal. f. Metal. Metal pieces, panels, fasteners, and detailing affixed to the exterior surface of a building or accessory structure shall be resistant to corrosion. g. Brick and stone. If brick or stone are used adjacent to a building opening, a soldier course or solid lintel shall be incorporated, which is above the opening and at least 8 inches in height. 2. Windows. a. Window type. Operable windows shall be limited to double-hung, awning, or casement type windows. Horizontal sliding and hopper windows are prohibited. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 23 of 39 b. Window materials. Solid wood or steel sash windows are required. Hollow window sections are not allowed. c. Mullions. Mullions may not be behind the surface of window glass, when viewed from outside. d. Clear glass. Except for bathroom windows, exterior glass shall be clear in appearance having at least 90 percent light transmission within the visible spectrum, and shall not be mirrored, frosted, or opaque. e. Recessed glass. Window glass shall be recessed at least 2 inches from the front face of adjacent trim or, if no trim is used, from the face of the adjacent exterior building wall. f. Privacy. Within the same development project, facing windows between buildings shall include at least one of the following: - building faces separated horizontally by at least 15 feet, - offset horizontally on the opposing building walls so facing window areas do not overlap, - having an interior sill height that is at least 48 inches above floor level; and/or - use of obscured glass in one or more windows if used with a bathroom or storage room. 3. Roofs. a. Projections. - Horizontal projections shall be limited consistent with Table 2-2A Allowable Projections into Setbacks and Paseos. - Parapet walls shall not extend vertically more than three feet above roof. - Roof-mounted mechanical equipment shall be entirely recessed within a sloped roof, or surrounded on all sides by a parapet wall with a top edge as high as the topmost point of the equipment. - The following are exempt from the limitations of this subsection: solar panels, wireless communications equipment, window cleaning systems, equipment required by fire departments and other public agencies, and associated appurtenances. b. Roofs on sloped sites. On sites with an average slope that is greater than 15 percent: - roofs shall be either flat or sloped in the same direction as the finished slope below the building, within 30 degrees of a line parallel with the slope; and - gabled roof ends shall not be oriented in the same direction as the finished slope below the building, within 30 degrees of a line parallel with the slope. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 24 of 39 G. Open Space Design in R-3, R-3-10, and R-4 Zones. 1. Private open space. Required private open space shall be comprised of a balcony, deck, covered porch, or yard dedicated to a specific dwelling unit, which have a minimum depth and width of at least 6 feet inclusive of posts and railings. 2. Community open space. Community open spaces are for shared use by residents and may be used to provide pedestrian access to a public street as described in subsection 16-21.040.E.4 (building entry and pedestrian access). Community open spaces consistent with the open space types described below can be used to meet part of usable open space requirements in subsection 16-21.040.B.2 (open space standards), exclusive of areas comprised of sidewalks, building projections, and landscaped areas within 5 feet of a building. a. Paseos. Paseos may be directly accessible by members of the public or may be secured from direct public access behind a gate and fence/wall. Paseos shall conform to all of the following design requirements: - a paseo’s width shall be at least 25 feet between confronting façade planes, excluding allowable projections; - within 40 feet of property lines, paseo width shall be at least 40 feet (not including allowable projections); - along paseos, residential frontage shall conform to subsection 16- 21.040.E.2 (residential frontages along community open space); - at least one shared sidewalk not less than 6 feet in width shall run the length of the paseo; and - not less than 1 square-foot of lawn, seating, and/or play area(s) shall be provided for every 5 linear feet of paseo. b. Outdoor Recreation Space. Outdoor recreation space includes play areas, pools, ball courts, lawns, and similar recreational amenities. Outdoor recreation space may or may not be directly accessible by members of the public. Outdoor recreational space that conform to the following requirements may be counted towards usable open space: - a width and depth of not less than 40 feet; - not less than 20 linear feet of fixed seating; - landscaped areas between adjacent residential frontage and the outdoor recreational space, with a depth of not less than 8 feet not including allowable projections and shared seating; and - not less than one tree planted for every 50 feet of adjacent residential frontage. c. Shared Courts. A shared court is a community space shared by pedestrians, bicyclists, and motor vehicles, and designed for very low vehicle speeds and traffic volumes. Shared courts may or may not be directly accessible by members of the public. Shared courts that conform to the following Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 25 of 39 requirements may be counted towards usable open space, up to a maximum of 50 square feet per dwelling unit: - no through traffic, except to provide access to garage(s) for eighteen (16) or fewer vehicles; - speed attenuation across the vehicular entrance to the share courts, such as a speed hump and/or rumble strip; - vehicle maneuvering dimensions consistent with subsection 16- 21.040.I.3 (alleys) with a curb or fixed bollards at the edges of areas that allow motor vehicles to protect the residential frontage and associated landscape; - landscaped areas between residential frontage and the shared court, with a depth of not less than 8 feet (not including allowable projections and shared seating), with not less than one tree planted for every 50 feet of residential frontage and not less than 20 linear feet of fixed seating; and - surface material composed of permeable pavers made of brick, concrete, stone, and/or simulated stone, with a vertical depth of not less than 3 inches and horizontal diagonal dimension of not less than 13 inches, except to allow a concrete band up to 12 inches in width along the shared court’s perimeter. d. Roof terraces. Roof terraces provide shared amenities for all residents on the top of roofs accessible by all project residents but not directly accessible by members of the public. A roof terrace can be used to meet usable open space requirements if it conforms to the following: - a width and depth of not less than 25 feet; - universal access by all residents, including elevator access for persons with limited mobility; - not less than 25 percent of a roof terrace shall be comprised of lawn, seating, food preparation, and/or barbeque area(s); - not less than 10 percent of a roof terrace shall be landscaped; and - at least one ADA-accessible unisex toilet provided. e. Community rooms. Community rooms include classrooms, day care centers, recreation centers, and reading rooms. A community room may be used to meet usable open space requirements if it contains uses that serve residents or is available for use by residents, and if it conforms to all of the following requirements: - a width and depth of not less than 25 feet; - a ground-floor location providing universal access by all residents; - a direct access from a public street or community open space; Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 26 of 39 - windows comprising not less than 50 percent of a community room’s exterior wall(s) where the wall(s) face(s) a public street or community open space; and - at least one ADA-accessible unisex toilet and at least one ADA- accessible kitchen that is not less than 50 square feet.. f. Community gardens. A community garden may be counted towards usable open space, up to a maximum of 50 square feet per unit, if it conforms to the following: - direct pedestrian access via sidewalk(s) connected to a public street or network of on-site sidewalks; - slopes of less than 15 percent; - planter boxes that comprise not less than 50 percent of the community garden area and have a minimum depth and width of not less than 3 feet and a soil depth above finished grade of not less than 10 inches; - horizontal separation of at least 3 feet between planter boxes for pedestrian circulation; and - at least two ADA accessible planter boxes. 3. Sidewalks and bicycle facilities along public streets. a. Public Sidewalks. Where no sidewalk pre-exists along public street(s) adjacent to the project site, a new publicly-accessible sidewalk shall be provided. Where there is no existing public sidewalk in both directions within 200 feet from the project site boundaries, no new sidewalk is required. New sidewalks shall be located outside of vehicular travel lanes and required bikeway improvements, as described below: - new sidewalks along public streets shall be not less than 6 feet in width; - new sidewalks may be located within a street right-of-way, if an encroachment permit is obtained and there is 6 feet or more of unobstructed space between the street’s existing curb and the project site’s property line. Sidewalks of required width shall otherwise be located partly or entirely on the project site within newly dedicated public right-of-way; and -. where the distance between the street’s existing curb and edge of right-of-way exceeds 12 feet, then a landscape strip shall be provided between the new sidewalk and curb. The landscape strip shall not be less than 6 feet in width and include street trees planted not less than 35 feet on-center as measured parallel to the curb, not less than 24 inches from face of curb, and consistent with a street tree list and specifications provided by the Town. b. Bikeways. Where the project is adjacent to a roadway with bikeway facility locations designated in Tiburon General Plan Figure M-4 “Bikeway Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 27 of 39 Network,” bikeway improvements shall be made according to each bikeway classification and as further defined below: - Class I Multi-Use Path – a bikeway not less than 10 feet, which is separated from vehicle travel lane of not less than 11 feet wide by a landscape strip not less than 6 feet wide; - Class II Bike Lanes – not less than 11 feet for vehicle travel lane and 5 feet for adjacent bicycle lane, for a combined width of 16 feet; and - Class III Bike Route – not less than 13 feet for one lane shared by bicyclists and motorists; - Class IV Separated Bikeway – according to design specifications provided by the Town; and - for all classifications, pre-existing parallel parking lanes shall be maintained and have a minimum width of 8 feet. c. Dedication of Land. The developer shall be responsible for making sidewalk, bikeway, and associated landscape strip improvements, and shall dedicate land with these improvements to the public right-of-way. d. Conformance with Standards. Street improvements shall conform to and in no event conflict with the Federal Highway Administration Manual on Uniform Traffic Control Devices or Caltrans design manuals, whichever is more restrictive at the time of project application, or Marin County standards if FHA or Caltrans standards are not in effect. H. Landscape Design in R-3, R-3-10, and R-4 Zones. 1. Landscaped setbacks. Not less than 90 percent of setback areas shall be landscaped, except for areas occupied by building projections, pedestrian access, vehicular access, utilities, retaining walls, and community open space areas. Landscape materials shall be comprised of trees, shrubs, and groundcover consistent with . 2. Trees and Plant Materials. Required landscaped areas shall be composed of trees, shrubs, and groundcover in compliance with the following: - trees shall be planted at 15-gallon size or larger; - shrubs shall be planted at one-gallon size or larger; - ground cover shall be planted at spacing not more than 12 inches on center; and - up to 10 percent of required landscape areas may be comprised of inorganic materials including, but not limited to, sand, stone, decomposed granite, or gravel. 3. Vegetation Management Plan. A vegetation management plan shall be prepared in compliance with fire district regulations. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 28 of 39 4. Fences and walls. Fences and walls shall conform to the following standards, except for retaining walls which shall meet requirements in section 16-21.040.J (site preparation and engineering): a. within front and street side setback areas, no fence or wall shall exceed a height of forty-two (42) inches above finished grade; b. in all other locations, no fence or wall shall exceed a height of seventy-two (72) inches above finished grade; and c. fence and wall materials. The following fence materials are allowed in combination with posts: - wood board or picket; - wood or metal frame with metal wire; - metal bar; - stone or brick; - cast in place concrete; or - concrete block or cinder block where faced with stucco, tile, or cementitious panels. Fence materials that are not allowed include: - barb wire; - razor wire; - chain link; - corrugated metal; - plastic and other synthetic materials; and - unfaced concrete block or cinder block. 5. Site lighting. Lighting for parking and open space areas shall conform with the following standards: a. pole-mounted lighting fixtures shall not exceed a height of 12 feet from finished grade; b. within two feet of a building entryway at least one wall-mounted exterior light fixture shall be provided; and c. all proposed exterior lighting shall include shielded downlighting and shall not cast direct light beyond interior side and rear property lines, based on fixture specifications, location, and height. I. Vehicular Access and Parking in R-3, R-3-10, and R-4 Zones. 1. Vehicular access. a. Regulatory Consistency. Street improvements shall conform to and in no event conflict with the Federal Highway Administration Manual on Uniform Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 29 of 39 Traffic Control Devices or Caltrans design manuals, whichever is more restrictive at the time of project application, or Marin County standards if FHA or Caltrans standards are not in effect. b. Width of travel lanes. On-site vehicle travel lanes along private streets, shared driveways, and/or alleys shall have a paved width of 20 to 24 feet, exclusive of parking lanes, breakdown lanes (shoulders), or other obstructions. c. Slope of travel lanes. On-site vehicle travel lanes along private streets, shared driveways, and/or alleys shall comply with the standards of the applicable fire protection district. d. Vehicle egress. An uninterrupted line of sight shall be provided to the street and sidewalk from a driver’s vantage point located not less than 5 feet from the street right-of-way, and within a cone of vision not less than 45-degrees angle in both directions from the direction of travel. A stop sign shall be located not more than 2 feet to the right of the uninterrupted line of sight. Driveways that cross public sidewalks shall be at the same level as the sidewalk. e. Fire access. Fire apparatus access to sides of structures and vehicular access routes shall comply with the standards of the applicable fire protection district. 2. Private Streets. Private streets that provide access to both vehicles and pedestrians within a project site, in addition to consistency with section 16- 21.040.I (vehicular access and parking), shall meet all of the following design requirements: a. vehicle and pedestrian routes shall connect to a public street; b. vehicle travel lanes may be flanked by parallel parking on one or both sides; c. diagonal and perpendicular parking shall be limited to one side of travel lanes; d. where parking abuts travel lane(s), parking and aisle dimensions shall conform to section 16-32.080 (parking design and development standards), except that aisle dimensions shall be interpreted to allow the front or rear of a vehicle to overhang a curb and/or landscaped area up to 2 feet from edge of pavement; e. planting strips shall include street trees planted not less than 35 feet on- center as measured parallel to the curb, not less than 24 inches from face of curb, and consistent with subsection 16-21.040.H.2 (trees and plant materials). 3. Alleys. Alleys may be used to provide vehicular access on-site without pedestrian circulation. Alleys shall meet all of the following design requirements: a. travel lanes shall conform to subsection 16-21.040.I.1.b (width of travel lanes); Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 30 of 39 b. subsection where garage doors and/or surface parking are present along an alley, parking and aisle dimensions shall conform to section 16-32.080 (parking design and development standards), except that vehicle maneuvering shall assume aisle dimensions shall assume that vehicles can overhang the edge of alleys by 2 feet; and c. alley pavement shall be comprised of asphalt, concrete, and/or permeable pavers. 4. Parking. a. Parking ratios. On-site motor vehicle parking for vehicles shall conform with section 16-32.040 (number of parking spaces required). On-site bicycle parking shall be provided as follows: - secure covered bicycle room(s), lockers, or enclosed shed(s) accommodating one bike space per studio or one-bedroom unit and two bike spaces for larger units; and - bike racks accommodating one bike space per 10 units, but not less than 2 racks. b. Parking design. On-site parking for vehicles shall conform with section 16- 32.080 (parking design and development standards), except that: - parking garages shall be located in conformance with section 16- 21.040.E.2 (street and community open space frontages); - a wall or fence having a height of between 36 and 42 inches above finished grade shall screen surface parking lots where they would otherwise be in direct view of a public sidewalk; - within surface parking lots, at least 1 tree for every 6 parking stalls shall be planted in a tree well with a width that is not less than 4 feet in all directions, and consistent with subsection 16-21.040.H.2 (trees and plant materials); - parking lots shall be separated from property lines by a landscape strip that is not less than 6 feet wide; - mechanical parking lifts shall be allowed within an enclosed garage when designated for use by residents, except for parking designated for use by persons with disabilities; - mechanical lifts shall be accompanied by an on-site battery or electrical generator to provide sufficient power to clear the lift of all vehicles, or shall be capable of manually clearing the lift without power; and - a pair of tandem parking spaces shall be allowed when designated for use by members of the same household/dwelling unit. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 31 of 39 J. Site Preparation and Engineering in R-3, R-3-10, and R-4 Zones. 1. Grading. Projects shall conform to the following. a. Development shall not occur on slopes that exceed 30% using a map with contour intervals of not more (not less detailed) than 2-feet, except to: - allow grading, site improvements including retaining walls, and buildings, to occur within 25 feet of the perimeter of slopes that are less than 30% and have a contiguous area at least 5,000 square feet, and/or - allow roadways, driveways, sidewalks, and/or trails across such slopes. b. Free-standing retaining walls shall not exceed 3.5 feet in height within setback areas, and not more than 6 feet in height in other areas. c. Retaining walls that are below buildings or part of structured parking garages shall not exceed 18 feet in height. Parts of parking garages that are below buildings shall be designed such that the residential ground floor that is above conforms with subsection 16-21.040.E.3 (residential frontage design). d. The top and the toe of each engineered slope shall transition to adjacent slopes so that there is not more than a 2% change in slope within one horizontal foot. e. Residential structures shall not be placed on areas with slopes over 10 percent that are within: - an Earthquake Fault Zone as defined by the California Geologic Survey, - an area mapped as landslide susceptibility class VIII, IX, or X by the California Department of Conservation, or - a landslide, slump, or natural spring area as determined and mapped by a qualified civic or geotechnical engineer. f. Projects that are located on or within 500 feet of any area identified in subsection (e) above shall submit a geotechnical report prepared by the licensed geotechnical engineer of record that conforms to the California Building Standards Code requirements, notwithstanding any exclusions in the California Building Standards Code for building size or type of construction. The report shall address site preparation, foundation, grading and drainage recommendations, and proposed modification to the existing lagoon bulkhead if applicable, and expected ground water elevation at this site in relation to the proposed drainage improvements (including proposed subsurface drainage). The project shall incorporate all recommended measures identified by the geotechnical report into the project plans. Measures to be implemented during construction and operation of the project shall be listed on the improvement plans. The project applicant shall certify compliance with the measures. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 32 of 39 g. Slopes that have been graded, but that are free from buildings and other site improvements, shall be planted with trees, shrubs, and groundcover consistent with subsection 16-21.040.H.2 (trees and plant materials). 2. Protected Trees. Protected trees shall be subject to permitting and other provisions described in chapter 15A (trees), except for housing development projects which qualify for streamlined ministerial review as required under California law for which the following shall apply: - the project shall preserve and protect all heritage trees as defined in section 15A-2, and - for any tree as defined in section 15A-2 which is removed, two replacement trees at least 15-gallon in size shall be planted within the project site. 3. Biological Resources. Projects shall avoid construction or grading on portions of a site providing habitat for special-status species, wetlands, riparian areas, oak woodlands and habitats of significant value. Projects which qualify for streamlined ministerial review as provided under California law and containing area identified as a land use type other than urban in Figure C-1 of the Tiburon General Plan shall conform with the following: a. Projects shall submit a biological resources assessment prepared by a qualified professional that identifies special-status species, including endangered, threatened, sensitive, rare, and protected species, and their critical habitats, wildlife migration corridors, riparian habitat, and other sensitive natural communities (collectively "biological resources"). The biological resources assessment shall identify measures to protect biological resources based on local or regional plans, policies, regulations by the California Department of Fish and Game, US Fish and Wildlife Service, Bay Conservation and Development Commission, National Marine Fisheries Service, US Army Corps of Engineers, or other state or federal agency with jurisdiction over the biological resource, or best practices for resources conservation as established by resource protection or conservation plans. b. The project shall incorporate all biological resource measures identified by the biological resources report into the project plans. Measures to be implemented during construction and operation of the project shall be listed on the improvement plans. The project applicant shall certify compliance with the measures. c. The project shall provide a minimum of a 100-foot buffer from habitat for special-status species, wetlands, oak woodlands, and habitat of significant value as identified in the biological resources assessment which are present on the project site, unless a reduced buffer that is not less than 25 feet is determined to be adequate to protect such resources by the qualified biologist. No ground disturbance shall occur within the buffer area and the area within the buffer shall be permanent open space. d. If special-habitat species occur on the site or have the potential to occur on the site, as determined by the biological resources assessment, the qualified biologist shall identify adequate measures consistent with mitigation Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 33 of 39 recommended by resource agencies (i.e., U.S. Fish and Wildlife Service, California Department of Fish and Wildlife) to avoid impacts to special- status species during any ground-disturbing and construction activities and the project shall implement such measures and include documentation demonstrating adherence to all measures. Certificates of occupancy shall not be approved without demonstration of adherence to all measures. 4. Cultural Resources. Projects shall avoid construction or grading on portions of a site containing significant cultural resources. Projects which qualify for streamlined ministerial review as provided under California law and containing area identified as a land use type other than urban in Figure C-1 of the Tiburon General Plan shall conform with the following: a. A cultural resources assessment, including site survey, shall be conducted by a qualified archaeologist and shall identify the potential for cultural resources on the project site. b. If significant cultural resources, or the potential for significant cultural resources, are identified by the cultural resources assessment, the project shall avoid such cultural resources and shall provide a minimum of a 100- foot buffer from significant cultural resources, unless a reduced buffer that is not less than 25 feet is determined to be adequate to protect such resources by the qualified archaeologist or measures, such as capping the resource or relocation of the resources to permanent open space, are identified as adequate to preserve the significance of significant cultural resources. No ground disturbance shall occur within the buffer area and the area within the buffer shall be permanent open space. The project shall implement all recommended measures and include documentation demonstrating adherence to all measures. Certificates of occupancy shall not be approved without demonstration of adherence to all measures. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 34 of 39 SECTION 3. AMENDMENTS TO CHAPTER 16, DIVISION 100. The following are added in alphabetical order to Tiburon Municipal Code Title IV, Section 16- 100.020 (Definitions of Specialized Terms and Phrases): “Appurtenance”. Structural and utility apparatus(es) associated with a principal feature or function. “Building entrance, principal”. See “Entrance, principal building”. “Building footprint”. See “Footprint, building”. “Canopy, Rigid”. A rigid projection used to protect a window or other opening from rain and/or sun. “Cinder block”. A type of concrete block made with cinder aggregate. “Grayscale”. Grayscale is the collection or the range of monochromic (gray) shades, ranging from pure white (100%) on the lightest end to pure black (0%) on the opposite end. Grayscale only contains luminance (brightness) information and no hue (color spectrum) information. “Eave”. The lower edge of a roof that overhangs beyond the wall and building below. “Footprint, building”. The dimensions of a building at grade level. “Frontage, available street”. The length of a street-adjacent property line that is available for development, and therefore exclusive of required property line setbacks, stream setbacks, and natural areas, like woodlands and rock outcroppings, where they are retained. In the calculation of available street frontage, intersecting street-adjacent property line segments that intersect at an obtuse shall constitute a single frontage, whereas property line segments that intersect at less than 45 degrees from perpendicular shall be considered as separate. “Garage door”. A movable door, gate, or system of panels, which cover a garage opening when closed. “Garage opening”. An exterior building opening without walls that provides access to motorized vehicles. “Grade, natural”. The elevation of improved or unimproved surface of the ground that exists on date of project application and as is determined by a reliable site survey showing not less than 2- foot contour intervals. “Streets, private”. Private streets serve both vehicle traffic, pedestrian, and bicycle circulation on site. Private streets feature sidewalks for pedestrians, whereas alleys do not. “Lanes, travel”. Traffic lanes for the uninterrupted movement of motor vehicles, including through lanes, turn lanes, acceleration lanes, and deceleration lanes, but not parking lanes, bicycle lanes, sidewalks, or planted areas. “Property-Line Setback, Minimum”. A line that describes nearest that a building may be setback from a property line, excluding allowable projections. “Shared Court”. A shared open space designed for pedestrian use and for relatively few motorists accessing parking, and where pedestrian safety is addressed by slowing vehicles and communicating its shared character through use of signage, decorative pavers, speed attenuation Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 35 of 39 devices, rumble strips, decorative pavers, and signage. Shared courts are known as “woonerfs” among design professionals, which means “residential yard” in Dutch. “Street frontage”. See “Frontage, street”. “Street frontage, available”. See “Frontage, available street”. SECTION 4. AMENDMENTS TO CHAPTER 16, DIVISION 100. The following definitions of the Tiburon Municipal Code Title IV, Section 16-100.020 (Definitions of Specialized Terms and Phrases) are hereby amended to read as follows with additions underlined and deletions struck through: "Building". Any structure used or intended for supporting or sheltering any use or occupancy. When any portion thereof is completely separated from every other portion thereof by an approved fire wall assembly or separation as defined by the California Building Code, without any window, door, or other opening therein, which fire wall extends from the ground to the upper surfaces of the roof at every point, then such portion shall be deemed to be a separate building. In consideration of Block Width and Massing Increment standards, however, a building’s width shall consider the massing of multiple adjacent buildings to be integrated and buildings divided by a fire wall assembly or separation shall not be considered as separate. “Façade plane”. Within the limits of a horizontal Façade Increment, the Façade Plane is the largest wall surface within the same contiguous two-dimensional surface without projections or recesses from that surface. Facade Planes of interest face public streets and common open space with pedestrian activity, rather than parking lots or rear yards. "Frontage, street". A street frontage describes development characteristics with twenty ten (10) feet of a street-facing property line required minimum setback and at ground-floor level, including a building's ground-floor facade, landscape and built features within setbacks and projections, and associated sidewalk improvements. Pedestrian's experience along street sidewalks are determined in part by street frontage characteristics. "Floor area, gross". "Gross floor area" means the sum of all enclosed or covered areas of each floor of the building, measured to the exterior faces of the enclosing walls, columns, or posts. NOTE: The term "capable of being used or finished for habitable space" is used below. A space shall be considered "capable of being used or finished for habitable space" if it meets California Building Code occupiable ceiling height requirements and is all of the following: 1.Covered by a solid, weatherproof roof or floor; and 2.At least fifty percent of the vertical area around the space is closed. Gross floor area shall not include the following six areas: 1.For single-family and two-family residential uses, the first four hundred fifty square feet of garage or carport space on properties less than seven thousand five hundred square feet in area; or the first six hundred square feet of garage or carport space on properties equal to and between seven thousand five hundred square feet to sixty thousand square feet in area; or the first seven hundred fifty square feet of garage or carport space on properties greater than sixty thousand square feet in area; or the first two hundred fifty Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 36 of 39 square feet of garage or carport space for each parking space required in compliance with parking requirements from section 16-32.040 (number of parking spaces required); 2.Areas permanently open to the sky; 3.Exterior areas under roof eaves or other cantilevered overhangs; 4.Attic spaces and underfloor spaces that are not capable of being used or finished for habitable space; 5.Basements, as defined in this zoning ordinance; and 6.Floor areas of roofed or covered open spaces (such as breezeways, balconies, porches and similar spaces), which are not capable of being used or finished for habitable space, if at least fifty percent of the vertical area around the space is fully open. 7.For multi-family uses, commercial uses, or mixed use development, gross floor area shall not include the entire floor area of parking garages and carports accommodating required parking. Gross floor area shall include the following: 1.Unfinished loft spaces and other areas capable of being used or finished for habitable space; 2.Other roofed or covered spaces (such as breezeways, balconies, porches, or similar spaces) that are capable of being used or finished for habitable space, if less than fifty percent of the vertical area around the space is fully open; 3.Roof penthouses; mezzanine floor areas; and accessory buildings; 4.All crawl space area with a minimum height of seven feet when measured from finished or natural grade (whichever is lower) to the bottom of the floor above. This definition shall only apply to crawl space created after March 31, 2006; and 5.All space with a minimum height of seven feet beneath a cantilevered portion of other floor area of a dwelling unit. This definition shall only apply to such space created after March 31, 2006. Unless otherwise stipulated, the term “floor area” shall mean gross floor area. “Frontage, street”. A street frontage describes development characteristics with within twenty (20) ten (10) feet of a street-facing property linerequired minimum setback and at ground-floor level, including a building’s ground-floor façade, landscape and built features within setbacks and projections, and associated sidewalk improvements. Pedestrian’s experience along street sidewalks are determined in part by street frontage characteristics. “Frontage type”. Characteristically different frontage types, such as commercial versus residential, but also inclusive of service areas and community open space. "Grade". The natural surface of the ground, or the finished ground surface, whichever is lower, but in no case lower than the minimum flood grade elevations adopted by the town (See "Height"), except that for projects on slopes that average greater than 10 percent, building height shall be measured from natural grade alone. The director or board may determine the grade in the case of unusual project conditions. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 37 of 39 “Ground floor”. The floor of a building located nearest to the finished grade around the building, exclusive of parking garages. “Massing increment”. The horizontal module comprised of a contiguous building volume that has a Facade Plane as its front face and is located within 10 feet of a minimum front property line setback line. “Paseo”. A pedestrian passage flanked by landscaping that provides an internal walking connection to building entrances, adjacent parcels or sidewalks or other paseos. Paseos include amenities, such as seating and play areas. Paseos are not accompanied by space for motor vehicles. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 38 of 39 SECTION 5. AMENDMENTS TO TOWN OF TIBURON ZONING MAP. The Town of Tiburon Zoning Map shall be amended to modify the zoning of the property at 4576 Paradise Drive (APN # 038-142-02) from RPD (Residential Planned Development) to R-3- 10 (Multifamily Residential) as depicted in Exhibit A. SECTION 6. SEVERABILITY. If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases may be declared invalid or unconstitutional. SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect 30 days after its passage and adoption pursuant to California Government Code Section 36937. Before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This ordinance was introduced at a regular meeting of the Town Council of the Town of Tiburon on November 15, 2023, and was adopted at a regular meeting of the Town Council of the Town of Tiburon on _______________ by the following vote: AYES: COUNCILMEMBERS: NAYS: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: _______________________________ JACK RYAN, MAYOR TOWN OF TIBURON ATTEST: ______________________________ LEA DILENA, TOWN CLERK Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 39 of 39 EXHIBIT A EXHIBIT 2 EXHIBIT 2 ORDINANCE NO. XXX N.S. (DRAFT) AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON AMENDING PROVISIONS OF TITLE IV, CHAPTER 16 (ZONING) OF THE TIBURON MUNICIPAL CODE BY AMENDING DIVISIONS 16-14 (ZONING MAP); 16-21 (RESIDENTIAL ZONES); AND 16-100 (DEFINITIONS) AND AMENDING THE TOWN OF TIBURON ZONING MAP WHEREAS, the 2023-2031 Tiburon Housing Element was adopted by the Town Council on May 23, 2023, amended on September 20, 2023, and found to be in substantial compliance with Housing Element law by the State Department of Housing and Community Development (HCD) on October 18, 2023 (“Housing Element”); and WHEREAS, the Housing Element includes an inventory of housing opportunity sites that designates specific densities and zoning classifications for certain parcels as needed to meet the Town’s Regional Housing Needs Allocation (RHNA) and further establishes policies and programs necessary to implement requirements of State housing law; and WHEREAS, amendments to the Zoning Ordinance and Zoning Map are necessary to permit housing at the densities specified within the Housing Element, including changes to the base zoning of parcels; and WHEREAS, the Town has conducted numerous public meetings, study sessions, workshops, and hearings during 2022 and 2023 to identify housing opportunity sites, prepare objective development and design standards to accommodate higher density development which retains the predominant design character of the community, and set the parameters of associated zoning amendments to facilitate higher density development; and WHEREAS, the Zoning Ordinance and Zoning Map amendments were prepared in accordance with applicable statutory requirements taking into account public comment and consistency with the Tiburon General Plan 2040 and related Town policies; and WHEREAS, objective development and design standards and associated rezonings for commercial mixed-use development in the Downtown area were previously introduced by the Town Council on June 7, 2023 following a duly noticed public hearing and adopted on June 21, 2023 as Ordinance No. 605; and WHEREAS, the Design Review Board discussed and provided feedback on multifamily objective development and design standards at duly noticed regular meetings on August 10, 2023 and September 21, 2023; and WHEREAS, the Planning Commission conducted a duly noticed public hearing at a regular meeting on October 25, 2023 and adopted Resolution No. 2023-XX recommending to the Town Council that various text amendments be made to Title IV, Chapter 16 (Zoning) of the Tiburon Municipal Code and a revision to the Zoning Map to further implement programs on the Tiburon Housing Element; and WHEREAS, on XXXXX, 2023, the Town Council held a duly noticed public hearing and has heard and considered all public testimony on the proposed Ordinance; and WHEREAS, the Town Council finds that all notices and procedures required by law attendant to the adoption of this Ordinance have been followed; and Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 2 of 39 WHEREAS, the Town Council finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare; and WHEREAS, the Town Council has found that the amendments made by this Ordinance are consistent with the goals and polices of the Tiburon General Plan 2040 and other adopted ordinances and regulations of the Town of Tiburon, and further the intent and purposes of General Plan goals and policies; and WHEREAS, in accordance with the California Environmental Quality Act (CEQA), the Town of Tiburon prepared an Environmental Impact Report (SCH Number 2022100473) which was circulated for public comment from March 16, 2023 through May 1, 2023 and certified by the Tiburon Town Council on May 22, 2023, which analyzed the policies and implementing programs of the Tiburon Geneal Plan 2040, including the 2023-2031 Housing Element; and WHEREAS, the certified EIR considered the proposed amendments to the Zoning Ordinance and Zoning Map of the Town of Tiburon and disclosed all potential environmental impacts including those impacts that may be mitigated to a level of less-than-significant; and WHEREAS, the Town Council of the Town of Tiburon considered the Final EIR including the response to public comments, adopted a Statement of Overriding Considerations, and certified the EIR on May 22, 2023 following a duly noticed public hearing; and WHEREAS, the Town Council of the Town of Tiburon conducted a duly and properly noticed public hearing to take public testimony and consider this Ordinance. NOW, THEREFORE BE IT RESOLVED by the Town Council of the Town of Tiburon that the amendments to the Tiburon Municipal Code and Tiburon Zoning Map are consistent with the Tiburon General Plan 2040 including the following goals, policies and programs: 1. The foregoing recitals are true and correct and are incorporated herein by reference. 2. The project is consistent with Housing Element Policies H-D1 (Variety of Housing Choices), H-D3 (Key Housing Opportunity Sites), H-D7 (Retention and Expansion of Multifamily Sites at Medium and Higher Density), and Programs H-ff (Design of Multifamily Housing), H-ii (Rezone Housing Opportunity Sites), H-ll (Rezone 4576 Paradise Drive), in that the project rezones the property at 4576 Paradise Drive to a new zoning district of R-3-10 requiring a minimum density of 10 dwelling units per acre and a maximum of 12.4 units per as required by Housing Element Program H-ll and adopts objective development and design standards for new multifamily housing developments, including those on hillside sites, as required under State housing laws and Housing Element Programs H-ii and H-ll. The proposed objective development and design standards for multifamily housing development allow for multifamily units to be constructed at densities called for in the 2023-2031 Housing Element which will result in new unit types and sizes to diversify the housing opportunities in the community, providing units which will be more affordable by design. They also serve to streamline the development approval process by providing objective, quantified and known requirements for new multifamily development proposals. H-D1 Variety of Housing Choices. In response to the broad range of housing Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 3 of 39 needs in Tiburon, the Town will strive to achieve a mix of housing types, densities, affordability levels and designs. This will include an adequate supply and variety of housing opportunities to meet the needs of Tiburon’s workforce and their families, striving to match housing types and affordability with household income. The Town will work with developers of non-traditional and innovative housing approaches in financing, design, construction, and types of housing that meet local housing needs. Housing opportunities for families with children should not be limited because necessary facilities are not provided on site. H-D2 New Affordable Housing. Facilitate the design, approval, and construction of affordable housing projects using a variety of mechanisms, including mixed-use development incentives, inclusionary zoning, density bonus programs, affordable housing overlay zones, and create of accessory dwelling units. H-D3 Key Housing Opportunity Sites. Given the diminishing availability of developable land, the Town will identify housing opportunity areas and sites where a special effort will be made to provide workforce and special needs affordable housing. The Town will take specific actions to promote the development of affordable housing units on these sites (identified in the Implementing Programs). H-D7 Retention and Expansion of Multifamily Sites at Medium and Higher Density. The Town will strive to protect and expand the supply and availability of multifamily and mixed use infill housing sites for housing. The Town will not re-designate or rezone residential land for other uses or to lower densities without re-designating equivalent land for higher density multifamily development. H-ff Design of Multifamily Housing. Conduct design review to assure excellence of design in new multifamily housing development and utilize objective design and development standards for applicable projects. H-ii Rezone Housing Opportunity Sites. Establish new Mixed Use, Main Street, and R-4 zoning districts and objective design and development standards for those districts that facilitate development at the realistic unit capacities and densities established in Table 11 for each site. Rezone Sites 1-7, 9, and A-F to Mixed use, Site 8 to R-4, and Site G to Main Street. As reflected in Table 11, Sites 1-9 are identified to accommodate a portion of the lower-income RHNA. These will be rezoned to: 1. require the minimum density identified in Table 11; 2. permit owner-occupied and rental multifamily uses by right pursuant to Government Code section 65583.2(i) for development in which 20 percent or more of the units are affordable to lower income households; 3. allow 100 percent residential use; and 4. require residential use occupy at least 50 percent of the total floor area of a mixed use project. H-ll Rezone 4576 Paradise Drive. Rezone 4576 Paradise Drive to R-3-10 and require a minimum density of 10 units per acre. Develop and adopt objective Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 4 of 39 development and design standards that will permit development of projects on hillside sites including Site H at the capacities assumed in the Housing Sites Inventory (Table 11). 3. The Town Council hereby finds that the action to adopt this Ordinance and the amendments to the Zoning Code and Zoning Map have been considered and analyzed in the certified Final EIR for General Plan 2040. No supplemental or subsequent EIR is required because none of the circumstances requiring a supplemental or subsequent EIR exist (CEQA Guidelines Section 15162): (a) No substantial changes are proposed in the project which will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The Zoning Ordinance and Zoning Map amendments do not create any additional environmental impacts. (b) No substantial changes have occurred with respect to the circumstances under which the project is undertaken. The EIR was certified in May 2023, and no substantial evidence has been submitted showing any change in the circumstances applicable to the project. (c) No new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete, has been submitted to the Town. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. AMENDMENTS TO CHAPTER 16, DIVISION 14 Tiburon Municipal Code Title IV, Chapter 16, Division 14 (Zoning Map) is hereby amended to read as follows (additions in underline, deletions in strikethrough text): 16-14 Zoning Map 16-14.010 - Purpose. The purpose of division 16-14 is to establish the zones applied to property within the town and adopt the town's zoning map and planned development map. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010) 16-14.020 - Zoning map and zones. The council hereby adopts the Town of Tiburon Zoning Map (hereafter referred to as the "zoning map") and "planned development map", which are on file with the department. The zoning map and planned development map are hereby incorporated into this zoning ordinance by reference as though they were fully included here. The zones referred to herein and the boundaries of such zones shall be shown upon the zoning map. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 5 of 39 A. Zones established. The town shall be divided into zones that implement the general plan. The zones shown in table 1-1 are hereby established, and shall be shown on the zoning map. TABLE 1-1 ZONES Zone Symbol Name of Zone General Plan Land Use Designation Conforming with Zone R-1 Single-family residential zone Medium High Density (MH) R-1-B-A Bel Aire single-family residential zone Medium High Density (MH) R-1-B-2 Modified single-family residential zone Medium High Density (MH) RO Residential open zone Medium Density (M) and Medium Low Density(ML) R-2 Two-family residential zone High Density (H) R-3 Multifamily residential zone Very High Density (VH) R-3-10 Multifamily residential zone Very High Density (VH) R-4 Multifamily residential zone Very High Density – 25 (VH-25) RPD Residential planned development zone Low Density (L) and PD-R Planned Development Residential (PD-R) RMP Residential multiple planned zone Very High Density (VH) and Very High Density/Affordable Housing Overlay (VH/AHO) M Marine zone Marine (Marine) O Office zone Office (O) NC Neighborhood commercial zone Neighborhood Commercial (NC) NC/AHO Neighborhood commercial/affordable housing overlay zone NC/AHO Neighborhood Commercial/Affordable Housing Overlay VC Village commercial zone Village Commercial (VC) MS Main Street zone Main Street (MS) MU Mixed use zone Mixed Use (MU) P Public/quasi-public zone Public/Quasi-Public (P) OS Open space zone Open Space (OS) F Flood hazard overlay zone All HPO Historic protection overlay zone All P&R Parks and recreation zone Parks and Recreation (Park) B. Zoning map and planned development map changes. If, in compliance with the provisions herein, changes are made in zone boundaries or other matter portrayed on the zoning map or planned development map, such changes shall be made on the map or maps promptly after the amendment has been approved by the council, together with an entry on the map or maps indicating the authority for such change and the date when such change became effective. C. Interpretation of Zone Boundaries. 1. At all points on the zoning map where a zone is defined as being bounded by or running to a public street (other than a state highway), it shall be construed as being bounded by and running to the center of such street. In like manner, the zoning map shall in all cases be construed as bounding each zone by the centerline Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 6 of 39 of each street (other than a state highway) upon which it shall abut, notwithstanding the fact that the demarcation of such zone shall be shown on the map as the sideline of such street. It is declared to be the intent and purpose of this division to bound all zones by the centerline of the streets upon which they abut, whether or not conveyances of abutting lands shall have gone to the centerlines of such streets as provided in Civil Code section 1112. However, in instances where an abutting parcel or area not located within the town is located on the opposite side of any street located in the town, the town zoning shall extend the entire width of the street and not terminate at the centerline of the street. For any state highway or state highway segment located in the town, the entire right-of-way of said highway or highway segment in the town shall be conclusively construed as being zoned Public/Quasi-Public (P), regardless of abutting zoning or jurisdictional lines. 2. If uncertainty exists in any boundary indicated on the zoning map or the planned development map, the director shall determine the location of such boundary pursuant to provisions of subsection 16-12.020 (Authority for Interpretation). 3. Zone boundaries shall extend vertically upward and downward from the ground surface. 4. If there is uncertainty about the location of any zone boundary shown on the official zoning map, the following rules are to be used in resolving the uncertainty: a. Where zone boundaries approximately follow lot, alley, or street lines, the lot lines and street and alley centerlines shall be construed as the zone boundaries; b. If a zone boundary divides a lot and the boundary line location is not specified by distances printed on the zoning map, the location of the boundary will be determined by using the scale appearing on the zoning map; c. Where a public street or alley, excluding a state highway, is officially vacated or abandoned, the property that was formerly in the street or alley will be included within the zone of the adjoining property on either side of the centerline of the vacated or abandoned street or alley; and d. Any property not clearly designated on the zoning map in any of the zones established by article II (Zones and Allowable Land Uses) shall hereby be designated as being in the RPD (residential planned development) zone (subsection 16-21.020.F.1 [RPD (residential planned development) zone]). (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 561 N.S. , § 2(A), 9-2-2015) Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 7 of 39 SECTION 2. AMENDMENTS TO CHAPTER 16, DIVISION 21. Tiburon Municipal Code Title IV, Chapter 16, Division 21 (Residential Zones) is hereby amended to read as follows (additions in underline, deletions in strikethrough text): 16-21 Residential Zones 16-21.010 - Purpose. The purpose of division 16-21 is to establish the land uses that may be allowed within the residential zones established by section 16-14.020 (zoning map and zones), determine the types of zoning permit (if any) required for each use, and provide standards for site layout and building size. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010) 16-21.020 - Purposes of the residential zones. The purpose of each residential zone is as follows. A. R-1 (single-family residential) zone. The R-1 zone is intended to promote and encourage the maintenance of a suitable environment for suburban family living on smaller single-family residential lots in older developed areas of the town. The R-1 zone conforms with general plan land use designation medium high density (MH). B. R-1-B zones. The R-1-B zones are comprised of properties formerly located in unincorporated Marin County that were annexed to the town after incorporation in 1964. These properties were generally developed under County of Marin zoning districts with setbacks that do not correspond to other single-family residential zones in the town. The R-1-B zones conform with general plan land use designation medium high density (MH). R-1-B zones have modified setbacks in order to reduce the creation of nonconforming structures that would otherwise result from annexation of properties that were generally developed with different setback requirements. 1. R-1-B-A (Bel Aire single-family residential) zone. The R-1-B-A zone serves the same purpose as the R-1 zone but is intended to reflect the different front and side setbacks historically found in the Bel Aire Estates neighborhood. The principal uses, conditional uses, and development standards for the R-1-B-A zone shall be the same as the R-1 zone with the exception of the front and side setbacks established in section 16-21.040 (residential zones development standards). 2. R-1-B-2 (modified single-family residential) zone. The R-1-B-2 zone serves the same purpose as the R-1 zone but is intended to reflect the different front and side setbacks with which the properties were developed. The principal uses, conditional uses, and the development standards for the R-1-B-2 zone shall be the same as the R-1 zone with the exception of the front and side setbacks established in section 16-21.040 (residential zones development standards). C. RO (residential open) zone. The RO zone is intended to promote and encourage the maintenance of a suitable environment for low-density, single-family development on lots larger than those typically found in the R-1 zone. There are two RO zones, RO-1 and RO-2, each having its own Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 8 of 39 development standards. The permitted and conditional uses are the same for both zones. The RO-1 zone conforms with general plan land use designation medium low density (ML). The RO-2 zone conforms with general plan land use designation medium density (M). D. R-2 (two-family residential) zone. The R-2 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for suburban family living in areas appropriate by location and character for single-family and two-family dwellings. The R-2 zone conforms with general plan land use designation high density (H). E. R-3 (multifamily residential) zone. The R-3 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for residence in areas appropriate by location and character for multifamily dwellings. The R-3 zone conforms with general plan land use designation very high density (VH). F. R-3-10 (multifamily residential) zone. The R-3-10 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for higher density residences in areas appropriate by location and character for multifamily dwellings. The R-3-10 zone conforms with the general plan land use designation very high density (VH) and requires a minimum residential density of 10 dwelling units per acre. G. R-4 (multifamily residential) zone. The R-4 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for higher density residences in areas appropriate by location and character for multifamily dwellings. The R-4 zone conforms with general plan land use designation very high density (VH-25) and requires a minimum residential density of 20 dwelling units per acre. H. Planned residential development zones. There are numerous planned developments where applicable zoning regulations have been previously established by adoption of master plans, precise plans, precise development plans, conditional use permits, or similar zoning permits. These planned developments are depicted on the map entitled "Planned Development Map," incorporated as section 16-14.020 (zoning map and zones). A current list of the applicable ordinances and/or resolutions governing the planned developments is on file at the community development department. 1. RPD (residential planned development) zone. The RPD zone is intended to protect and preserve open space land as a limited and valuable resource without depriving owners of a reasonable use of their property for residential purposes. The regulations of the zone are designed to insure, to the extent feasible, the conservation of natural resources and the retention of land in its natural or near natural state in order to, among other things, assist in the containment of urban sprawl and protect the community from the hazards of fire, flood, seismic and other catastrophic activity, and to otherwise implement the goals and policies of the general plan. The RPD zone conforms with general plan land use designation low density (L) and PD-R planned development residential (PD-R). 2. RMP (residential multiple planned) zone. The RMP zone has the same purposes and shall be governed by the same regulations as the RPD zone (Subsection 1. above) except as otherwise provided herein. The RMP zone conforms with general plan land use designation very high density (VH). (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 564 N.S. , §§ (B), (C), 4-6-2016) Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 9 of 39 16-21.030 - Residential zones allowable land uses and permit requirements. A. General permit requirements. Table 2-1 identifies the uses allowed by this zoning ordinance in each residential zone, and the zoning permit required to establish each use, in compliance with section 16-20.030 (allowable land uses and zoning permit requirements). Permitted uses are shown as "P" uses in table 2-1. B. Permit requirements for certain specific land uses. Where the last column in table 2-1 ("Specific Use Regulations") includes a section number, the referenced section determines whether the use requires a conditional use permit. The referenced section may also refer to other requirements and standards applicable to the use. C. Additional uses. Additional specific uses which are, in the determination of the director, similar or accessory to those uses listed in table 2-1 shall be permitted only when a conditional use permit is granted therefore as provided in section 16-52.040 (conditional use permit) and shown as "U" uses in table 2-1. D. Improvement requirements. 1. R-2 zone. Conversion of existing two-family or multifamily dwellings in the R-2 zone into single-family dwellings or buildings containing fewer dwelling units shall be subject to approval of a conditional use permit the review authority as provided in section 16-52.040 020 (conditional use permitsite plan and architectural review) except for projects which under State law qualify for ministerial review. 2. R-3, R-3-10, R-4 zones. All improvements proposed for the R-3, R-3-10, and R-4 zone other than alterations, additions or other changes to existing structures are subject to approval of a conditional use permitthe review authority as provided in section 16-52.040020 (conditional use permitsite plan and architectural review) except for projects which under State law qualify for ministerial review. 3. RPD and RMP zones. Approval of a precise development plan in compliance with the provisions of section 16-52.060 (precise development plan) is required prior to subdivision, grading, or improvements of any kind in the RPD and RMP zones. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 10 of 39 TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specific Use Regulations LAND USE (1) R-1 R-1-B RO R-2 R-3 and R-3-10 R-4 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6) U U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities — — — — — — U U Open space use — — — — — — P P Wildlife sanctuaries — — — — — — U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2) U U U — — — U U Title VI, 20-5.1 Golf course/country club U U U — — — U U Library, museum U U U U U U — — Parochial or other nonprofit school - elementary, secondary, or college U U U U U U U U Philanthropic or charitable facility U U U U U U U U Private residential recreation facilities U U U U U U U U Public park P P P P P P P P Playground U U U U U U U U Publicly owned building or facility U U U U U U U U Religious places of worship U U U U U U U U RESIDENTIAL USES Home occupation P P P P P P P P 16-52.110 Intermediate or community care facility (3) P P P P P P P P Multifamily dwelling — — — — P P — P Accessory dwelling unit /Junior accessory dwelling unit (5) MP MP MP MP MP MP MP MP 16-52.100/ 16-52.105 Single-family dwelling P P P P P — P P Single-family dwelling providing room/board for 1 paying guest for a minimum of 31 consecutive days; vacation rentals are not permitted P P P P — — P P Two-family dwelling, attached — — — P — — — P Two-family dwelling, detached — — — P(4) — — — — 16-40.020 Transitional, supportive housing P P P P P P P P Key to Zoning District Symbols R-1 Single-Family Residential R-3 Multifamily Residential R-1-B Modified Single-Family Residential R-3-10 Multifamily Residential RO Residential Open R-4 Multifamily Residential R-2 Two-Family Residential RPD Residential Planned Development RMP Residential Multiple Planned Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 11 of 39 Notes: (1) See article X (definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003, are deemed legal nonconforming structures subject to provisions of division 16-62. (5) Also subject to the standards adopted by separate resolution of the town council. (6) Except for chicken keeping and beekeeping as set forth in section 16-40.070. TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed LAND USE (1) PERMIT REQUIRED BY DISTRICT Specific Use Regulations R-1 R-1-B RO R-2 R-3 and R-3- 10 R-4 RPD RMP SERVICES - GENERAL Bed and breakfast facility (B&B) U U U — — — — — Child day-care facilities, small family day-care homes - up to 8 children (5) P P P P P P P P Health & Safety Code 1597.3 et seq. Child day-care facilities, large family day-care homes - 9 to 14 children (5) MP MP MP MP MP MP MP MP Health & Safety Code 1597.46—1597.465 Child day-care center - 15 or more children U U U U U U U U Medical services - Hospital U U U U U U U U Real estate tract office U U U U U U U U TRANSPORTATION, COMMUNICATIONS & INFRASTRUCTURE Public utility and communication equipment building U U U U U U U U Wireless communication facility, amateur or professional U/MP U/MP U/MP U/MP U/MP U/MP U/MP U/MP Government Code 65850.6 Key to Zoning District Symbols R-1 Single-Family Residential R-3 Multifamily Residential R-1-B Modified Single-Family Residential R-3-10 Multifamily Residential RO Residential Open R-4 Multifamily Residential R-2 Two-Family Residential RPD Residential Planned Development RMP Residential Multiple Planned Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 12 of 39 Notes: (1) See article X (definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003, are deemed legal nonconforming structures subject to provisions of division 16-62. (5) When located in a single-family dwelling. (6) See Section 16-42.040 for specifics. Certain modifications, replacements and removals are subject to ministerial review and approval under federal law or are eligible for streamlined discretionary review. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 541 N.S. § 2(A), 8-15-2012; Ord. No. 542 N.S., §§ 2(C)(1), (2), 8-15-2012; Ord. No. 554 N.S. , § 2(A)(Exh. A), 2-18-2015; 555 N.S. , § 2(A)(Exh. A), 2-18-2015; Ord. No. 558 N.S. , § 2, 6-3-2015; Ord. No. 562 N.S ., § 2(A)(Exh. A), 11-18-2015; Ord. No. 568 N.S., § 2(A), 2-1-2017; Ord. No. 577 N.S. , § 2(A), 5-16-2018) 16-21.040 - Residential zones development standards. A. Development standards. Each subdivision shall comply with the minimum lot size requirements in table 2-2. Subdividers are advised that division 16.40 (standards for specific land uses) may require a specific land use to be on a lot larger than required by this section. Larger lots may be required based on slope restriction, refer to table 14-7.3 in Municipal Code chapter 14 (subdivision of land) for calculations of minimum lot size based on slope. Construction in flood hazard zones shall conform to the requirements in chapter 13D (flood damage prevention). Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 13 of 39 TABLE 2-2 RESIDENTIAL ZONES DEVELOPMENT STANDARDS Zone Minimum Lot Area Maximum Lot Coverage Req- uired Lot Width Minimum Setback Requirements (1) Height Limit Maximum FAR Maximum Density Front Sides Rear Primary Accessory R-1 10,000 square feet (s.f.) 1-story development: same as max. FAR; 2-story or multi-story development: 30% 40 ft. 15 ft. 8 ft. 20% of lot depth or 25 ft. (whichever is less) 30 ft. 15 ft. See Section 16-52.020.I 4.4 du/acre R-1-B-A 20 ft. 6 ft. 4.4 du/acre R-1- B-2 25 ft. 10 ft. 4.4 du/acre RO-1 40,000 s.f. 15% 70 ft. 30 ft. 20 ft. 1.1 du/acre RO-2 20,000 s.f. 15% 50 ft. 30 ft. 15 ft. 3.0 du/acre R-2 7,500 s.f. (2) 35% 40 ft. 15 ft. 8 ft. 11.6 du/acre 3,750 s.f. per dwelling (2) R-3 10,000 s.f. 30% ― 15 ft. generally (5,6), except 20 ft. to garage(s) 8 feet street side same as front; interior side 20 ft. generally (5,6). 8 feet 20 ft. (5, 6) 30 ft. 35 ft. and 3 stories (6, 7) .60 12.4 du/acre 3,500 s.f. per dwelling R-3 -10 10,000 s.f. 10.0 du/acre minimum; 12.4 du/acre maximum 3,500 s.f. per dwelling R-4 10,000 s.f. 40% 50% ― 1.0 20 du/acre minimum; 25 du/acre maximum 1,750 s.f. per dwelling RPD Established by adopted master plan/precise plan or precise development plan for development 30 ft. (3) 15 ft. (3) See section 16-52.020.I See Table LU-3 of General Plan RMP Established by adopted master plan/precise plan or precise development plan for development .30 (4) 12.4 du/acre Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 14 of 39 Notes: (1) Some older planned development approvals do not specify setback requirements, in which case appropriate setbacks are determined by site plan and architectural review. (2) In the R-2 zone, where a lot is contiguous with a submerged or tide lot that lies entirely or partially in the M zone, and all of such property is under the same ownership, the total area of such contiguous lots may be used in determining whether the minimum lot area requirements have been met. Notwithstanding any other provision of this Section to the contrary, no building or accessory building or part thereof shall extend seaward of the zone boundary line between the R-2 zone and the M zone other than as may be permitted in compliance with the regulations of the M zone (division 16-25). (3) Unless otherwise specified in a precise development plan. (4) Unless otherwise specified in a Precise Development Plan. (5) Projections into setbacks shall be allowed consistent with subsection 16-21.040.D.1 (allowable projections). (6) Minimum street side and interior side setbacks shall be 5 feet for detached garage(s) with a height not less than 1 story and 15 feet. (7) Building stepback provisions apply, as described in subsection 16-21.040.D.4 (corner stepbacks). B. Open space standards. 1. R-2 zone usable open space. Minimum required usable open space per dwelling unit in the R-2 zone is three hundred seventy-five square feet with a minimum dimension of not less than twelve feet. 2. R-3, R-3-10, and R-4 zones amount of usable open space. Minimum required usable open space per dwelling unit in the R-3, R-3-10, and R-4 zones are as set forth below, consistent with subsection 16-21.040.B.3: a. Per efficiency or studio apartment: one hundred fifty square feet; b. Per one bedroom apartment: two hundred square feet; c. Per two-bedroom apartment: two hundred fifty square feet; d. Per three or more bedroom apartment: three hundred square feet. The amount of usable open space required may be met using a combination of private open space or community open space. At least 50 square feet of private open space shall be provided as defined in subsection 16-21.040.G.1 (private open space). The required amount of usable open space may also be comprised of community open space as defined in subsection 16-21.040.G.2 (community open space). Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 15 of 39 C. Density standards. 1. Undeveloped land. Maximum residential densities for undeveloped land in the RPD and RMP zones shall be as established on the land use diagram in the land use element of the general plan. 2. RPD zone developed land. Maximum residential densities for developed land in the RPD zone shall be as established by the adopted master/precise plan, precise development plan, or equivalent zoning permit for the development, as finalized by the recorded subdivision map(s) for the development. Planned developments with recorded subdivision maps are considered to be fully subdivided and are not subject to further subdivision and shall not exceed allowable general plan density limits. 3. RMP zone developed land. Maximum residential densities for developed land in the RMP zone shall be as established by the adopted master and/or precise plans, precise development plans, or condominium plan for the development, as finalized by the recorded subdivision map, or condominium plan, for the development. Planned developments with recorded subdivision maps and/or condominium plans are considered to be fully subdivided and are not subject to further subdivision, and shall not exceed allowable general plan density limits. D. Building massing and stepbacks in R-3, R-3-10, and R-4 Zones. 1. Allowable Projections. Specified building elements may project into required setbacks and the required minimum width for paseos, in accordance with Table 2.2A Allowable Projections into Setbacks. These requirements shall supersede subsection 16-30.30.F (allowed projections into setbacks). Table 2-2A Allowable Projections into Setbacks and Paseos Allowable Projection Maximum Projection Awnings and Rigid Canopies (1) 30 inches Balconies and Bay Windows (1,2) 36 inches, may not exceed a width of 12 feet Cornices and Eaves 12 inches Porches and Stoops 7 feet, excluding stairs Wall-Mounted Lighting and Planter Boxes 18 inches (1) Not allowed more than 25 feet above finished grade. (2) Balconies or bay windows shall be separated by at least 4 feet. 2. Building width and separations. A building shall not be more than 180 feet in width or depth, as illustrated in Figure 1-1: Building Width and Massing Increment. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 16 of 39 3. Massing increment. Building massing shall not be more than 60 feet in width where it is within 10 feet of minimum required property-line setback from a property line, unless it is separated by a building recess into multiple massing increments, each with a massing increment of not more than 60 feet in width, as illustrated in Figure 1-1: Building Width and Massing Increment. A building recess that is used to separate adjacent massing increments shall have a depth of at least 6 feet from the principal façade planes that it abuts, and a minimum width of 8 feet. Figure 1-1: Building Width and Massing Increment 4. Corner stepbacks. Building mass at building corners shall be stepped back, where it is within 10 feet of a minimum property-line setback. Additionally, building mass at building corners shall be stepped back where a minimum required property-line setback and minimum required paseo width as described in subsection 16-21.040.G.2a (paseos) intersect. Where a building corner stepback is required, then the building area that is above the ground floor shall be stepped back not less than 6 feet beyond the minimum required property-line setback and/or minimum required paseo width, and for a width of not less than 10 feet in either direction from where such setbacks intersect, as illustrated in Figure 1-2: Corner Stepbacks. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 17 of 39 Figure 1-2: Corner Stepbacks E. Residential Frontages in R-3, R-3-10, and R-4 Zones. 1. Residential street frontages. Not less than 75 percent of the available street frontage(s) adjacent to a public right-of-way shall be occupied by residential frontage, paseo, or some combination of the two, as illustrated in Figure 1-3: Street Frontage Continuity and described in subsection 16-21.040.E.3 (residential frontage design) and section 16-21.040.G (open space design), except that where project site has less than 100 linear feet of property line along a street, then the minimum residential street frontage can be reduced to allow vehicular access consistent with subsection 16-21.040.I.1 (vehicular access). 2. Residential frontages along community open space. Where buildings abut a community open space, not less than 75 percent of the building edge shall be a residential frontage, as described in subsection 16-21.040.E.3 (residential frontage design). Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 18 of 39 Figure 1-3: Street Frontage Continuity 3. Residential frontage design. Residential street frontages and residential frontages shall conform to the following standards. a. The residential ground floor shall not be more than 4 feet above finished grade, except within 20 feet of a vehicle entrance to a below-grade garage used by multiple households. b. Window and/or door openings shall comprise at least 25 percent of the surface area of the principal façade plane of each massing increment, as illustrated in Figure 1.4: Residential Window Area. c. Principal building entrances shall be accompanied by a porch, stoop, or vestibule with forecourt, are illustrated in Figure 1-5: Residential Entrance Types. Figure 1-4: Residential Window and Door Area Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 19 of 39 Figure 1-5: Residential Entrance Types Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 20 of 39 4. Building entry and pedestrian access. Sidewalks that lead to principal building entrances shall connect directly to a public street as described in subsection 16- 21.040.G.3 (sidewalks and bicycle facilities along public streets), or connect indirectly to a public street along a paseo as described in subsection 16-21.040.G.2.a (paseos), a shared court as described in subsection 16-21.040.G.2.c (shared courts), or along a sidewalk along a private street as described in 16-21.040.I.2 (private streets). 5. Garage doors and openings. Garage doors and garage openings shall not comprise more than 50% of the width of each massing increment, as illustrated in Figure 1-6: Garage Doors & Openings. Garage openings that are used for up to 2 vehicles (or up to 4 vehicles if using tandem parking or mechanical lifts) shall be accompanied by garage doors that are not more than 18 feet in width. Adjacent garage doors shall be separated by a column or vertical panel not less than 12 inches in width. Figure 1.6: Garage Doors & Openings Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 21 of 39 6. Service area location and screening. Service areas shall be located: a. at least 30 feet from street rights-of-way; b. enclosed within a building envelope; or c. screened from view of public sidewalk(s) with a solid wall or fence at least 42 inches in height. 7. Ground-level utility boxes and equipment. Ground-level utility boxes and equipment, including but not limited to back-flow preventers, air conditioner units, transformer boxes, gas and electric meters, generators and other utilities, shall not be located within a front or street side setback. If this is determined to be technically infeasible by a licensed engineer, ground-level utility boxes and equipment may be located in the front setback but shall be screened from all direct sight lines from public sidewalks by shrubs that can be expected to grow to the same height as the box or equipment. F. Building Design in R-3, R-3-10, and R-4 Zones. 1. Exterior materials. a. Greyscale. Exterior finishes, garage doors, and roofs shall have a grey scale (color value) that is at least 30 percent and not more than 70 percent. The color of front doors, window frames, and mullions are exempt from this requirement. b. Prohibited finishes. Prohibited exterior finishes include: unfinished cinder block; unfinished cement block; mirrored glass; and vinyl and aluminum products, including those intended to simulate wood. c. Extent of single finish. No single finish material shall comprise more than 40 percent of the surface area of each principal façade plane, inclusive of doors and windows, as illustrated in Figure 1-7: Extent of Single Material. The exterior finish material must vary in two or more of the following ways: - vary among wood, stucco, metal, and cementitious materials; - vary among shingles, board-and-batten, shiplap, panels, and uninterrupted planes; - vary the color hue of the exterior finishes by at least 30 degrees within a 360-degree color wheel and/or vary the color grey value by at least 20 percent. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 22 of 39 Figure 1.7: Extent of Single Material d. Wood. Exterior application of wood shall be comprised of one of the following: wood modules comprised of lap siding, vertical plank siding with or without batten, horizontal plank siding, or shingles, or exterior plywood with battens to cover joints and horizontally spaced not less than 2 feet on center. e. Stucco and concrete. For exterior application of stucco and concrete, a horizontal expansion joint or control joint shall be placed within one foot of each floor level, and a vertical expansion joint shall occur at least every fifteen feet. For stucco, expansion and control joints shall be reinforced with metal. f. Metal. Metal pieces, panels, fasteners, and detailing affixed to the exterior surface of a building or accessory structure shall be resistant to corrosion. g. Brick and stone. If brick or stone are used adjacent to a building opening, a soldier course or solid lintel shall be incorporated, which is above the opening and at least 8 inches in height. 2. Windows. a. Window type. Operable windows shall be limited to double-hung, awning, or casement type windows. Horizontal sliding and hopper windows are prohibited. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 23 of 39 b. Window materials. Solid wood or steel sash windows are required. Hollow window sections are not allowed. c. Mullions. Mullions may not be behind the surface of window glass, when viewed from outside. d. Clear glass. Except for bathroom windows, exterior glass shall be clear in appearance having at least 90 percent light transmission within the visible spectrum, and shall not be mirrored, frosted, or opaque. e. Recessed glass. Window glass shall be recessed at least 2 inches from the front face of adjacent trim or, if no trim is used, from the face of the adjacent exterior building wall. f. Privacy. Within the same development project, facing windows between buildings shall include at least one of the following: - building faces separated horizontally by at least 15 feet, - offset horizontally on the opposing building walls so facing window areas do not overlap, - having an interior sill height that is at least 48 inches above floor level; and/or - use of obscured glass in one or more windows if used with a bathroom or storage room. 3. Roofs. a. Projections. - Horizontal projections shall be limited consistent with Table 2-2A Allowable Projections into Setbacks and Paseos. - Parapet walls shall not extend vertically more than three feet above roof. - Roof-mounted mechanical equipment shall be entirely recessed within a sloped roof, or surrounded on all sides by a parapet wall with a top edge as high as the topmost point of the equipment. - The following are exempt from the limitations of this subsection: solar panels, wireless communications equipment, window cleaning systems, equipment required by fire departments and other public agencies, and associated appurtenances. b. Roofs on sloped sites. On sites with an average slope that is greater than 15 percent: - roofs shall be either flat or sloped in the same direction as the finished slope below the building, within 30 degrees of a line parallel with the slope; and - gabled roof ends shall not be oriented in the same direction as the finished slope below the building, within 30 degrees of a line parallel with the slope. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 24 of 39 G. Open Space Design in R-3, R-3-10, and R-4 Zones. 1. Private open space. Required private open space shall be comprised of a balcony, deck, covered porch, or yard dedicated to a specific dwelling unit, which have a minimum depth and width of at least 6 feet inclusive of posts and railings. 2. Community open space. Community open spaces are for shared use by residents and may be used to provide pedestrian access to a public street as described in subsection 16-21.040.E.4 (building entry and pedestrian access). Community open spaces consistent with the open space types described below can be used to meet part of usable open space requirements in subsection 16-21.040.B.2 (open space standards), exclusive of areas comprised of sidewalks, building projections, and landscaped areas within 5 feet of a building. a. Paseos. Paseos may be directly accessible by members of the public or may be secured from direct public access behind a gate and fence/wall. Paseos shall conform to all of the following design requirements: - a paseo’s width shall be at least 25 feet between confronting façade planes, excluding allowable projections; - within 40 feet of property lines, paseo width shall be at least 40 feet (not including allowable projections); - along paseos, residential frontage shall conform to subsection 16-21.040.E.2 (residential frontages along community open space); - at least one shared sidewalk not less than 6 feet in width shall run the length of the paseo; and - not less than 1 square-foot of lawn, seating, and/or play area(s) shall be provided for every 5 linear feet of paseo. b. Outdoor Recreation Space. Outdoor recreation space includes play areas, pools, ball courts, lawns, and similar recreational amenities. Outdoor recreation space may or may not be directly accessible by members of the public. Outdoor recreational space that conform to the following requirements may be counted towards usable open space: - a width and depth of not less than 40 feet; - not less than 20 linear feet of fixed seating; - landscaped areas between adjacent residential frontage and the outdoor recreational space, with a depth of not less than 8 feet not including allowable projections and shared seating; and - not less than one tree planted for every 50 feet of adjacent residential frontage. c. Shared Courts. A shared court is a community space shared by pedestrians, bicyclists, and motor vehicles, and designed for very low vehicle speeds and traffic volumes. Shared courts may or may not be directly accessible by members of the public. Shared courts that conform to the following Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 25 of 39 requirements may be counted towards usable open space, up to a maximum of 50 square feet per dwelling unit: - no through traffic, except to provide access to garage(s) for eighteen (16) or fewer vehicles; - speed attenuation across the vehicular entrance to the share courts, such as a speed hump and/or rumble strip; - vehicle maneuvering dimensions consistent with subsection 16- 21.040.I.3 (alleys) with a curb or fixed bollards at the edges of areas that allow motor vehicles to protect the residential frontage and associated landscape; - landscaped areas between residential frontage and the shared court, with a depth of not less than 8 feet (not including allowable projections and shared seating), with not less than one tree planted for every 50 feet of residential frontage and not less than 20 linear feet of fixed seating; and - surface material composed of permeable pavers made of brick, concrete, stone, and/or simulated stone, with a vertical depth of not less than 3 inches and horizontal diagonal dimension of not less than 13 inches, except to allow a concrete band up to 12 inches in width along the shared court’s perimeter. d. Roof terraces. Roof terraces provide shared amenities for all residents on the top of roofs accessible by all project residents but not directly accessible by members of the public. A roof terrace can be used to meet usable open space requirements if it conforms to the following: - a width and depth of not less than 25 feet; - universal access by all residents, including elevator access for persons with limited mobility; - not less than 25 percent of a roof terrace shall be comprised of lawn, seating, food preparation, and/or barbeque area(s); - not less than 10 percent of a roof terrace shall be landscaped; and - at least one ADA-accessible unisex toilet provided. e. Community rooms. Community rooms include classrooms, day care centers, recreation centers, and reading rooms. A community room may be used to meet usable open space requirements if it contains uses that serve residents or is available for use by residents, and if it conforms to all of the following requirements: - a width and depth of not less than 25 feet; - a ground-floor location providing universal access by all residents; - a direct access from a public street or community open space; Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 26 of 39 - windows comprising not less than 50 percent of a community room’s exterior wall(s) where the wall(s) face(s) a public street or community open space; and - at least one ADA-accessible unisex toilet and at least one ADA-accessible kitchen that is not less than 50 square feet.. f. Community gardens. A community garden may be counted towards usable open space, up to a maximum of 50 square feet per unit, if it conforms to the following: - direct pedestrian access via sidewalk(s) connected to a public street or network of on-site sidewalks; - slopes of less than 15 percent; - planter boxes that comprise not less than 50 percent of the community garden area and have a minimum depth and width of not less than 3 feet and a soil depth above finished grade of not less than 10 inches; - horizontal separation of at least 3 feet between planter boxes for pedestrian circulation; and - at least two ADA accessible planter boxes. 3. Sidewalks and bicycle facilities along public streets. a. Public Sidewalks. Where no sidewalk pre-exists along public street(s) adjacent to the project site, a new publicly-accessible sidewalk shall be provided. Where there is no existing public sidewalk in both directions within 200 feet from the project site boundaries, no new sidewalk is required. New sidewalks shall be located outside of vehicular travel lanes and required bikeway improvements, as described below: - new sidewalks along public streets shall be not less than 6 feet in width; - new sidewalks may be located within a street right-of-way, if an encroachment permit is obtained and there is 6 feet or more of unobstructed space between the street’s existing curb and the project site’s property line. Sidewalks of required width shall otherwise be located partly or entirely on the project site within newly dedicated public right-of-way; and -. where the distance between the street’s existing curb and edge of right-of-way exceeds 12 feet, then a landscape strip shall be provided between the new sidewalk and curb. The landscape strip shall not be less than 6 feet in width and include street trees planted not less than 35 feet on-center as measured parallel to the curb, not less than 24 inches from face of curb, and consistent with a street tree list and specifications provided by the Town. b. Bikeways. Where the project is adjacent to a roadway with bikeway facility locations designated in Tiburon General Plan Figure M-4 “Bikeway Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 27 of 39 Network,” bikeway improvements shall be made according to each bikeway classification and as further defined below: - Class I Multi-Use Path – a bikeway not less than 10 feet, which is separated from vehicle travel lane of not less than 11 feet wide by a landscape strip not less than 6 feet wide; - Class II Bike Lanes – not less than 11 feet for vehicle travel lane and 5 feet for adjacent bicycle lane, for a combined width of 16 feet; and - Class III Bike Route – not less than 13 feet for one lane shared by bicyclists and motorists; - Class IV Separated Bikeway – according to design specifications provided by the Town; and - for all classifications, pre-existing parallel parking lanes shall be maintained and have a minimum width of 8 feet. c. Dedication of Land. The developer shall be responsible for making sidewalk, bikeway, and associated landscape strip improvements, and shall dedicate land with these improvements to the public right-of-way. d. Conformance with Standards. Street improvements shall conform to and in no event conflict with the Federal Highway Administration Manual on Uniform Traffic Control Devices or Caltrans design manuals, whichever is more restrictive at the time of project application, or Marin County standards if FHA or Caltrans standards are not in effect. H. Landscape Design in R-3, R-3-10, and R-4 Zones. 1. Landscaped setbacks. Not less than 90 percent of setback areas shall be landscaped, except for areas occupied by building projections, pedestrian access, vehicular access, utilities, retaining walls, and community open space areas. Landscape materials shall be comprised of trees, shrubs, and groundcover consistent with . 2. Trees and Plant Materials. Required landscaped areas shall be composed of trees, shrubs, and groundcover in compliance with the following: - trees shall be planted at 15-gallon size or larger; - shrubs shall be planted at one-gallon size or larger; - ground cover shall be planted at spacing not more than 12 inches on center; and - up to 10 percent of required landscape areas may be comprised of inorganic materials including, but not limited to, sand, stone, decomposed granite, or gravel. 3. Vegetation Management Plan. A vegetation management plan shall be prepared in compliance with fire district regulations. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 28 of 39 4. Fences and walls. Fences and walls shall conform to the following standards, except for retaining walls which shall meet requirements in section 16-21.040.J (site preparation and engineering): a. within front and street side setback areas, no fence or wall shall exceed a height of forty-two (42) inches above finished grade; b. in all other locations, no fence or wall shall exceed a height of seventy-two (72) inches above finished grade; and c. fence and wall materials. The following fence materials are allowed in combination with posts: - wood board or picket; - wood or metal frame with metal wire; - metal bar; - stone or brick; - cast in place concrete; or - concrete block or cinder block where faced with stucco, tile, or cementitious panels. Fence materials that are not allowed include: - barb wire; - razor wire; - chain link; - corrugated metal; - plastic and other synthetic materials; and - unfaced concrete block or cinder block. 5. Site lighting. Lighting for parking and open space areas shall conform with the following standards: a. pole-mounted lighting fixtures shall not exceed a height of 12 feet from finished grade; b. within two feet of a building entryway at least one wall-mounted exterior light fixture shall be provided; and c. all proposed exterior lighting shall include shielded downlighting and shall not cast direct light beyond interior side and rear property lines, based on fixture specifications, location, and height. I. Vehicular Access and Parking in R-3, R-3-10, and R-4 Zones. 1. Vehicular access. a. Regulatory Consistency. Street improvements shall conform to and in no event conflict with the Federal Highway Administration Manual on Uniform Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 29 of 39 Traffic Control Devices or Caltrans design manuals, whichever is more restrictive at the time of project application, or Marin County standards if FHA or Caltrans standards are not in effect. b. Width of travel lanes. On-site vehicle travel lanes along private streets, shared driveways, and/or alleys shall have a paved width of 20 to 24 feet, exclusive of parking lanes, breakdown lanes (shoulders), or other obstructions. c. Slope of travel lanes. On-site vehicle travel lanes along private streets, shared driveways, and/or alleys shall comply with the standards of the applicable fire protection district. d. Vehicle egress. An uninterrupted line of sight shall be provided to the street and sidewalk from a driver’s vantage point located not less than 5 feet from the street right-of-way, and within a cone of vision not less than 45-degrees angle in both directions from the direction of travel. A stop sign shall be located not more than 2 feet to the right of the uninterrupted line of sight. Driveways that cross public sidewalks shall be at the same level as the sidewalk. e. Fire access. Fire apparatus access to sides of structures and vehicular access routes shall comply with the standards of the applicable fire protection district. 2. Private Streets. Private streets that provide access to both vehicles and pedestrians within a project site, in addition to consistency with section 16- 21.040.I (vehicular access and parking), shall meet all of the following design requirements: a. vehicle and pedestrian routes shall connect to a public street; b. vehicle travel lanes may be flanked by parallel parking on one or both sides; c. diagonal and perpendicular parking shall be limited to one side of travel lanes; d. where parking abuts travel lane(s), parking and aisle dimensions shall conform to section 16-32.080 (parking design and development standards), except that aisle dimensions shall be interpreted to allow the front or rear of a vehicle to overhang a curb and/or landscaped area up to 2 feet from edge of pavement; e. planting strips shall include street trees planted not less than 35 feet on-center as measured parallel to the curb, not less than 24 inches from face of curb, and consistent with subsection 16-21.040.H.2 (trees and plant materials). 3. Alleys. Alleys may be used to provide vehicular access on-site without pedestrian circulation. Alleys shall meet all of the following design requirements: a. travel lanes shall conform to subsection 16-21.040.I.1.b (width of travel lanes); Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 30 of 39 b. subsection where garage doors and/or surface parking are present along an alley, parking and aisle dimensions shall conform to section 16-32.080 (parking design and development standards), except that vehicle maneuvering shall assume aisle dimensions shall assume that vehicles can overhang the edge of alleys by 2 feet; and c. alley pavement shall be comprised of asphalt, concrete, and/or permeable pavers. 4. Parking. a. Parking ratios. On-site motor vehicle parking for vehicles shall conform with section 16-32.040 (number of parking spaces required). On-site bicycle parking shall be provided as follows: - secure covered bicycle room(s), lockers, or enclosed shed(s) accommodating one bike space per studio or one-bedroom unit and two bike spaces for larger units; and - bike racks accommodating one bike space per 10 units, but not less than 2 racks. b. Parking design. On-site parking for vehicles shall conform with section 16- 32.080 (parking design and development standards), except that: - parking garages shall be located in conformance with section 16-21.040.E.2 (street and community open space frontages); - a wall or fence having a height of between 36 and 42 inches above finished grade shall screen surface parking lots where they would otherwise be in direct view of a public sidewalk; - within surface parking lots, at least 1 tree for every 6 parking stalls shall be planted in a tree well with a width that is not less than 4 feet in all directions, and consistent with subsection 16-21.040.H.2 (trees and plant materials); - parking lots shall be separated from property lines by a landscape strip that is not less than 6 feet wide; - mechanical parking lifts shall be allowed within an enclosed garage when designated for use by residents, except for parking designated for use by persons with disabilities; - mechanical lifts shall be accompanied by an on-site battery or electrical generator to provide sufficient power to clear the lift of all vehicles, or shall be capable of manually clearing the lift without power; and - a pair of tandem parking spaces shall be allowed when designated for use by members of the same household/dwelling unit. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 31 of 39 J. Site Preparation and Engineering in R-3, R-3-10, and R-4 Zones. 1. Grading. Projects shall conform to the following. a. Development shall not occur on slopes that exceed 30% using a map with contour intervals of not more (not less detailed) than 2-feet, except to: - allow grading, site improvements including retaining walls, and buildings, to occur within 25 feet of the perimeter of slopes that are less than 30% and have a contiguous area at least 5,000 square feet, and/or - allow roadways, driveways, sidewalks, and/or trails across such slopes. b. Free-standing retaining walls shall not exceed 3.5 feet in height within setback areas, and not more than 6 feet in height in other areas. c. Retaining walls that are below buildings or part of structured parking garages shall not exceed 18 feet in height. Parts of parking garages that are below buildings shall be designed such that the residential ground floor that is above conforms with subsection 16-21.040.E.3 (residential frontage design). d. The top and the toe of each engineered slope shall transition to adjacent slopes so that there is not more than a 2% change in slope within one horizontal foot. e. Residential structures shall not be placed on areas with slopes over 10 percent that are within: - an Earthquake Fault Zone as defined by the California Geologic Survey, - an area mapped as landslide susceptibility class VIII, IX, or X by the California Department of Conservation, or - a landslide, slump, or natural spring area as determined and mapped by a qualified civic or geotechnical engineer. f. Projects that are located on or within 500 feet of any area identified in subsection (e) above shall submit a geotechnical report prepared by the licensed geotechnical engineer of record that conforms to the California Building Standards Code requirements, notwithstanding any exclusions in the California Building Standards Code for building size or type of construction. The report shall address site preparation, foundation, grading and drainage recommendations, and proposed modification to the existing lagoon bulkhead if applicable, and expected ground water elevation at this site in relation to the proposed drainage improvements (including proposed subsurface drainage). The project shall incorporate all recommended measures identified by the geotechnical report into the project plans. Measures to be implemented during construction and operation of the project shall be listed on the improvement plans. The project applicant shall certify compliance with the measures. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 32 of 39 g. Slopes that have been graded, but that are free from buildings and other site improvements, shall be planted with trees, shrubs, and groundcover consistent with subsection 16-21.040.H.2 (trees and plant materials). 2. Protected Trees. Protected trees shall be subject to permitting and other provisions described in chapter 15A (trees), except for housing development projects which qualify for streamlined ministerial review as required under California law for which the following shall apply: - the project shall preserve and protect all heritage trees as defined in section 15A-2, and - for any tree as defined in section 15A-2 which is removed, two replacement trees at least 15-gallon in size shall be planted within the project site. 3. Biological Resources. Projects shall avoid construction or grading on portions of a site providing habitat for special-status species, wetlands, riparian areas, oak woodlands and habitats of significant value. Projects which qualify for streamlined ministerial review as provided under California law and containing area identified as a land use type other than urban in Figure C-1 of the Tiburon General Plan shall conform with the following: a. Projects shall submit a biological resources assessment prepared by a qualified professional that identifies special-status species, including endangered, threatened, sensitive, rare, and protected species, and their critical habitats, wildlife migration corridors, riparian habitat, and other sensitive natural communities (collectively "biological resources"). The biological resources assessment shall identify measures to protect biological resources based on local or regional plans, policies, regulations by the California Department of Fish and Game, US Fish and Wildlife Service, Bay Conservation and Development Commission, National Marine Fisheries Service, US Army Corps of Engineers, or other state or federal agency with jurisdiction over the biological resource, or best practices for resources conservation as established by resource protection or conservation plans. b. The project shall incorporate all biological resource measures identified by the biological resources report into the project plans. Measures to be implemented during construction and operation of the project shall be listed on the improvement plans. The project applicant shall certify compliance with the measures. c. The project shall provide a minimum of a 100-foot buffer from habitat for special-status species, wetlands, oak woodlands, and habitat of significant value as identified in the biological resources assessment which are present on the project site, unless a reduced buffer that is not less than 25 feet is determined to be adequate to protect such resources by the qualified biologist. No ground disturbance shall occur within the buffer area and the area within the buffer shall be permanent open space. d. If special-habitat species occur on the site or have the potential to occur on the site, as determined by the biological resources assessment, the qualified biologist shall identify adequate measures consistent with mitigation Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 33 of 39 recommended by resource agencies (i.e., U.S. Fish and Wildlife Service, California Department of Fish and Wildlife) to avoid impacts to special- status species during any ground-disturbing and construction activities and the project shall implement such measures and include documentation demonstrating adherence to all measures. Certificates of occupancy shall not be approved without demonstration of adherence to all measures. 4. Cultural Resources. Projects shall avoid construction or grading on portions of a site containing significant cultural resources. Projects which qualify for streamlined ministerial review as provided under California law and containing area identified as a land use type other than urban in Figure C-1 of the Tiburon General Plan shall conform with the following: a. A cultural resources assessment, including site survey, shall be conducted by a qualified archaeologist and shall identify the potential for cultural resources on the project site. b. If significant cultural resources, or the potential for significant cultural resources, are identified by the cultural resources assessment, the project shall avoid such cultural resources and shall provide a minimum of a 100- foot buffer from significant cultural resources, unless a reduced buffer that is not less than 25 feet is determined to be adequate to protect such resources by the qualified archaeologist or measures, such as capping the resource or relocation of the resources to permanent open space, are identified as adequate to preserve the significance of significant cultural resources. No ground disturbance shall occur within the buffer area and the area within the buffer shall be permanent open space. The project shall implement all recommended measures and include documentation demonstrating adherence to all measures. Certificates of occupancy shall not be approved without demonstration of adherence to all measures. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 34 of 39 SECTION 3. AMENDMENTS TO CHAPTER 16, DIVISION 100. The following are added in alphabetical order to Tiburon Municipal Code Title IV, Section 16- 100.020 (Definitions of Specialized Terms and Phrases): “Appurtenance”. Structural and utility apparatus(es) associated with a principal feature or function. “Building entrance, principal”. See “Entrance, principal building”. “Building footprint”. See “Footprint, building”. “Canopy, Rigid”. A rigid projection used to protect a window or other opening from rain and/or sun. “Cinder block”. A type of concrete block made with cinder aggregate. “Grayscale”. Grayscale is the collection or the range of monochromic (gray) shades, ranging from pure white (100%) on the lightest end to pure black (0%) on the opposite end. Grayscale only contains luminance (brightness) information and no hue (color spectrum) information. “Eave”. The lower edge of a roof that overhangs beyond the wall and building below. “Footprint, building”. The dimensions of a building at grade level. “Frontage, available street”. The length of a street-adjacent property line that is available for development, and therefore exclusive of required property line setbacks, stream setbacks, and natural areas, like woodlands and rock outcroppings, where they are retained. In the calculation of available street frontage, intersecting street-adjacent property line segments that intersect at an obtuse shall constitute a single frontage, whereas property line segments that intersect at less than 45 degrees from perpendicular shall be considered as separate. “Garage door”. A movable door, gate, or system of panels, which cover a garage opening when closed. “Garage opening”. An exterior building opening without walls that provides access to motorized vehicles. “Grade, natural”. The elevation of improved or unimproved surface of the ground that exists on date of project application and as is determined by a reliable site survey showing not less than 2- foot contour intervals. “Streets, private”. Private streets serve both vehicle traffic, pedestrian, and bicycle circulation on site. Private streets feature sidewalks for pedestrians, whereas alleys do not. “Lanes, travel”. Traffic lanes for the uninterrupted movement of motor vehicles, including through lanes, turn lanes, acceleration lanes, and deceleration lanes, but not parking lanes, bicycle lanes, sidewalks, or planted areas. “Property-Line Setback, Minimum”. A line that describes nearest that a building may be setback from a property line, excluding allowable projections. “Shared Court”. A shared open space designed for pedestrian use and for relatively few motorists accessing parking, and where pedestrian safety is addressed by slowing vehicles and communicating its shared character through use of signage, decorative pavers, speed attenuation Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 35 of 39 devices, rumble strips, decorative pavers, and signage. Shared courts are known as “woonerfs” among design professionals, which means “residential yard” in Dutch. “Street frontage”. See “Frontage, street”. “Street frontage, available”. See “Frontage, available street”. SECTION 4. AMENDMENTS TO CHAPTER 16, DIVISION 100. The following definitions of the Tiburon Municipal Code Title IV, Section 16-100.020 (Definitions of Specialized Terms and Phrases) are hereby amended to read as follows with additions underlined and deletions struck through: "Building". Any structure used or intended for supporting or sheltering any use or occupancy. When any portion thereof is completely separated from every other portion thereof by an approved fire wall assembly or separation as defined by the California Building Code, without any window, door, or other opening therein, which fire wall extends from the ground to the upper surfaces of the roof at every point, then such portion shall be deemed to be a separate building. In consideration of Block Width and Massing Increment standards, however, a building’s width shall consider the massing of multiple adjacent buildings to be integrated and buildings divided by a fire wall assembly or separation shall not be considered as separate. “Façade plane”. Within the limits of a horizontal Façade Increment, the Façade Plane is the largest wall surface within the same contiguous two-dimensional surface without projections or recesses from that surface. Facade Planes of interest face public streets and common open space with pedestrian activity, rather than parking lots or rear yards. "Frontage, street". A street frontage describes development characteristics with twenty ten (10) feet of a street-facing property line required minimum setback and at ground-floor level, including a building's ground-floor facade, landscape and built features within setbacks and projections, and associated sidewalk improvements. Pedestrian's experience along street sidewalks are determined in part by street frontage characteristics. "Floor area, gross". "Gross floor area" means the sum of all enclosed or covered areas of each floor of the building, measured to the exterior faces of the enclosing walls, columns, or posts. NOTE: The term "capable of being used or finished for habitable space" is used below. A space shall be considered "capable of being used or finished for habitable space" if it meets California Building Code occupiable ceiling height requirements and is all of the following: 1.Covered by a solid, weatherproof roof or floor; and 2.At least fifty percent of the vertical area around the space is closed. Gross floor area shall not include the following six areas: 1.For single-family and two-family residential uses, the first four hundred fifty square feet of garage or carport space on properties less than seven thousand five hundred square feet in area; or the first six hundred square feet of garage or carport space on properties equal to and between seven thousand five hundred square feet to sixty thousand square feet in area; or the first seven hundred fifty square feet of garage or carport space on properties greater than sixty thousand square feet in area; or the first two hundred fifty Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 36 of 39 square feet of garage or carport space for each parking space required in compliance with parking requirements from section 16-32.040 (number of parking spaces required); 2.Areas permanently open to the sky; 3.Exterior areas under roof eaves or other cantilevered overhangs; 4.Attic spaces and underfloor spaces that are not capable of being used or finished for habitable space; 5.Basements, as defined in this zoning ordinance; and 6.Floor areas of roofed or covered open spaces (such as breezeways, balconies, porches and similar spaces), which are not capable of being used or finished for habitable space, if at least fifty percent of the vertical area around the space is fully open. 7.For multi-family uses, commercial uses, or mixed use development, gross floor area shall not include the entire floor area of parking garages and carports accommodating required parking. Gross floor area shall include the following: 1.Unfinished loft spaces and other areas capable of being used or finished for habitable space; 2.Other roofed or covered spaces (such as breezeways, balconies, porches, or similar spaces) that are capable of being used or finished for habitable space, if less than fifty percent of the vertical area around the space is fully open; 3.Roof penthouses; mezzanine floor areas; and accessory buildings; 4.All crawl space area with a minimum height of seven feet when measured from finished or natural grade (whichever is lower) to the bottom of the floor above. This definition shall only apply to crawl space created after March 31, 2006; and 5.All space with a minimum height of seven feet beneath a cantilevered portion of other floor area of a dwelling unit. This definition shall only apply to such space created after March 31, 2006. Unless otherwise stipulated, the term “floor area” shall mean gross floor area. “Frontage, street”. A street frontage describes development characteristics with within twenty (20) ten (10) feet of a street-facing property linerequired minimum setback and at ground-floor level, including a building’s ground-floor façade, landscape and built features within setbacks and projections, and associated sidewalk improvements. Pedestrian’s experience along street sidewalks are determined in part by street frontage characteristics. “Frontage type”. Characteristically different frontage types, such as commercial versus residential, but also inclusive of service areas and community open space. "Grade". The natural surface of the ground, or the finished ground surface, whichever is lower, but in no case lower than the minimum flood grade elevations adopted by the town (See "Height"), except that for projects on slopes that average greater than 10 percent, building height shall be measured from natural grade alone. The director or board may determine the grade in the case of unusual project conditions. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 37 of 39 “Ground floor”. The floor of a building located nearest to the finished grade around the building, exclusive of parking garages. “Massing increment”. The horizontal module comprised of a contiguous building volume that has a Facade Plane as its front face and is located within 10 feet of a minimum front property line setback line. “Paseo”. A pedestrian passage flanked by landscaping that provides an internal walking connection to building entrances, adjacent parcels or sidewalks or other paseos. Paseos include amenities, such as seating and play areas. Paseos are not accompanied by space for motor vehicles. Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 38 of 39 SECTION 5. AMENDMENTS TO TOWN OF TIBURON ZONING MAP. The Town of Tiburon Zoning Map shall be amended to modify the zoning of the property at 4576 Paradise Drive (APN # 038-142-02) from RPD (Residential Planned Development) to R-3-10 (Multifamily Residential) as depicted in Exhibit A. SECTION 6. SEVERABILITY. If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The Town Council of the Town of Tiburon hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases may be declared invalid or unconstitutional. SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect 30 days after its passage and adoption pursuant to California Government Code Section 36937. Before the expiration of fifteen (15) days after passage by the Town Council, a copy of the ordinance shall be published with the names of the members voting for and against it at least once in a newspaper of general circulation in the Town of Tiburon. This ordinance was introduced at a regular meeting of the Town Council of the Town of Tiburon on November 15, 2023, and was adopted at a regular meeting of the Town Council of the Town of Tiburon on _______________ by the following vote: AYES: COUNCILMEMBERS: NAYS: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: _______________________________ JACK RYAN, MAYOR TOWN OF TIBURON ATTEST: ______________________________ LEA DILENA, TOWN CLERK Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 39 of 39 EXHIBIT A EXHIBIT 3 EXHIBIT 4 EXHIBIT 4 De Novo Planning Group A Land Use Planning, Design, and Environmental Firm DE NOVO PLANNING GROUP 1020 Suncast Lane, Suite 106 | El Dorado Hills, CA 95762 Page | 1 October 23, 2023 Dina Tasini, Director of Community Development Town of Tiburon 1505 Tiburon Blvd. Tiburon, CA 94920 SUBJECT: Environmental Analysis Concerning the Proposed Objective Design and Development Standards (ODDS), Zoning Code Amendments, and Zoning Map Revisions Project Dear Dina, This letter is intended to provide an analysis of the proposed Objective Design and Development Standards (ODDS), Zoning Code Amendments, and Zoning Map Revisions project (hereafter Proposed Project) and its consistency and compliance with the Town of Tiburon 2040 General Plan Environmental Impact Report (EIR) in order to establish whether supplemental or subsequent CEQA review is required. This letter concludes that none of the triggering events for further CEQA review are met and that the General Plan EIR as certified fully applies to the Proposed Project. 1.0 INTRODUCTION The Town of Tiburon adopted its General Plan 2040 and certified the EIR on May 22, 2023, and its revised Housing Element on September 20, 2023. The Housing Element provides clear guidance through goals, policies, and programs directing the Town how to implement the Town’s General Plan 2040. In response to State legislation, the Town’s Housing Element highlights the need to construct more housing, particularly more multifamily housing. As a result, the Town identified Housing Opportunity Sites that could be suitable for multifamily housing. The Town of Tiburon initiated a comprehensive development of objective design and development standards for the primary purpose of complying with SB 330 and SB 35, while also ensuring consistency with the General Plan 2040 and to implement Housing Element programs H-ff, H-ii and H-ll. The Proposed Project includes adoption of ODDS for the R-3, R-3-10, and R-4 zones; text amendments to Title 16, Zoning Ordinance; and updating the Zoning District Map to reflect a zoning change from R-3 to R-3-10 for the property at 4576 Paradise Drive. The Proposed Project is intended to implement the goals, policies, and programs identified in the General Plan. 2.0 PROPOSED PROJECT The Proposed Project would implement the General Plan 2040 by establishing objective design standards for mixed-use and multi-family residential projects. An objective design standard is one that involves no personal or subjective judgment by a public official and is uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant and the De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 2 public official prior to submittal. The establishment of objective design standards directly implements General Plan 2040 Program H-ff, which requires the Town to conduct design review to assure excellence of design in new multifamily housing development and utilize objective design and development standards for applicable projects. The Town’s Housing Element Program H-ii also directs the Town to establish new Mixed Use, Main Street, and R-4 zoning districts and objective design and development standards for those districts that facilitate development at the realistic unit capacities and densities established in Housing Element Table 11 for each Housing Opportunity Site. The rezoning of 4576 Paradise Drive to R-3-10 responds directly to General Plan 2040 Program H-ll, which requires the Town to rezone the site to R-3-10 and require a minimum density of 10 units per acre. The program further requires that the Town develop and adopt objective development and design standards that will permit development of projects on hillside sites including Site H at the capacities assumed in the Housing Sites Inventory (shown as Table 11 in the General Plan 2040 Housing Element). The Proposed Project is intended to establish objective planning standards as called for in SB 330 and SB 35, and implement Housing Element Program H-ff which requires the Town to conduct design review to assure excellence of design in new multifamily housing development and utilize objective design and development standards for applicable projects. Establishment of ODDS would ensure that residential development in areas zoned as R-3, R-3-10, and R-4 are consistent with the vision of the General Plan 2040 by identifying consistent design standards, setbacks, building heights, street orientation, architectural materials, and other design elements to reflect a consistent approach to streamlining multifamily housing development in the town. This subsequent Proposed Project updates Municipal Code Chapter 16, Zoning Ordinance, to be consistent with the General Plan, remove outdated information, and clarify and streamline zoning and design standard provisions. The Proposed Projectwas anticipated as a subsequent project to implement the General Plan 2040. Chapter 2 of the General Plan 2040 Draft EIR indicated that projects or activities successive to the EIR may include corresponding changes in the zoning ordinance to ensure consistency between the General Plan 2040 and the permitted uses or development standards of the Tiburon Zoning Ordinance. ZONING ORDINANCE The Proposed Project would implement the General Plan goals, policies, and programs, including those described above. In addition to modifications to ensure consistency between the General Plan and Zoning Ordinance, the Proposed Project also refines uses, development standards, and other requirements to better reflect current conditions, desired trends, and best planning practices as well as clarify and streamline the Zoning Ordinance, where appropriate. De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 3 The primary components of the Proposed Project are summarized by Zoning Ordinance chapter below: Chapter 16, Division 14 Section 16-14.020 Zoning map and zones. • Revise Table 1-1 to identify a new zone, R-3-10 Multifamily residential zone, and identifying Very High Density (VH) as the corresponding General Plan land use designation conforming with the zone. Chapter 16, Division 21 Section 16-21.020 Purposes of the residential zones. • Add language to the section that defines the new R-3-10 multifamily residential zone. The R-3-10 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for more affordable residences in designated areas. The R-3-10 zone conforms with the general plan land use designation very high density (VH) and requires a minimum residential density of 10 dwelling units per acre. Section 16-21.030 Residential zones allowable land uses and permit requirements. • Add information to Table 2-1 to identify what permits are needed for development in the R-3-10 district. Section16-21.040 Residential zones development standards. • Revise Table 2-2, Residential Zones Development Standards, to identify development standards for the R-3-10 zone including minimum lot area, maximum lot coverage, minimum setback requirements, building height limits, and maximum density. • Identify open space standards for the R-3-10 zone including clarifying that the amount of usable open space required may be met using a combination of private open space or community open space. At least 50 square feet of private open space shall be provided as defined in subsection 16- 21.040.G.1 (private open space). The required amount of usable open space may also be comprised of community open space as defined in subsection 16-21.040.G.2 (community open space). • Define building massing and stepback requirements in the R-3, R-3-10, and R-4 zones. Building projection maximums are also defined as to not infringe upon setbacks. Table 2-2A, Allowable Projections into Setbacks and Paseos, is added. Building widths and/or depths are restricted to a maximum of 180 feet. Building massing shall not be more than 60 feet in width where it is within 10 feet of minimum required property-line setback from a property line, unless it is separated by a building recess into multiple massing increments, each with a massing increment of not more than 60 feet in width. Building mass at building corners shall be stepped back, where it is within 10 feet of a minimum property-line setback. Additionally, building mass at building corners shall be stepped back where a minimum required property-line setback and minimum required paseo width as described in subsection 16-21.040.G.2a (paseos) intersect. De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 4 • Residential frontage requirements for the R-3, R-3-10, and R-4 zones are identified, and address street frontages, open space design, and the relationship of buildings to the public right-of-way and community open space. Residential frontage design requirements are identified including specifying minimum requirements for window and door surface area; porch, stoop, or vestibule design standards; building entry and pedestrian access; garage doors and openings; service area locations and screening requirements; and placement of ground-level utility boxes and equipment. • Building design in R-3, R-3-10, and R-4 zones are defined and address allowable and prohibited external building materials, window types, and roof projections. • Open space design in R-3, R-3-10, and R-4 zones address the design of private open space, community open space (including paseos, outdoor recreation space, shared courts, roof terraces, community rooms, and community gardens), and sidewalks and bicycle facilities along public streets. • Landscape design in R-3, R-3-10, and R-4 zones identifies requirements for landscaping including setbacks, tree and plant materials, preparation of a vegetation management plan, design of fences and walls, and site lighting. • Vehicular access and parking in R-3, R-3-10, and R-4 zones is addressed to provide guidance on vehicular access, including street improvements on public and private roadways, safe vehicle egress design standards, and fire access. Standards specific to private streets and alleys are also identified. Vehicle parking and bicycle parking ratios are defined. The design of on-site parking is specified including details for parking garages, fencing, tree planting in surface parking lots, mechanical car lifts, and tandem parking. • Site preparation and engineering in R-3, R-3-10, and R-4 zones is defined to address site improvement requirements. Specifically, development shall not occur on slopes that exceed 30% with some exceptions including to allow grading, site improvements including retaining walls, and buildings, to occur within 25 feet of the perimeter of slopes that exceed 30%, and/or allow roadways, driveways, sidewalks, and/or trails across such slopes. Engineering and design standards are also identified to address retaining walls and slopes. Projects that are located on or within 500 feet of an Earthquake Fault Zone as defined by the California Geologic Survey, an area mapped as landslide susceptibility class VIII, IX, or X by the California Department of Conservation, or a landslide, slump, or natural spring area as determined and mapped by a qualified civic or geotechnical engineer shall submit a geotechnical report prepared by the licensed geotechnical engineer of record that conforms to the California Building Standards Code requirements, notwithstanding any exclusions in the California Building Standards Code for building size or type of construction. The report shall address site preparation, foundation, grading and drainage recommendations, and proposed modification to the existing lagoon bulkhead if applicable, and expected ground water elevation at this site in relation to the proposed drainage improvements (including proposed subsurface drainage). The project shall incorporate all recommended measures identified by the geotechnical report into the project plans. Measures to be implemented during construction and operation of the project shall be De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 5 listed on the improvement plans. The project applicant shall certify compliance with the measures. Slopes that have been graded, but are free from buildings or other site improvements, shall be planted with trees, shrubs, or groundcover. Projects shall preserve heritage trees and replace removed trees in accordance with the Zoning Code. Projects shall avoid construction or grading on portions of a site providing habitat for special- status species, wetlands, riparian areas, oak woodlands and habitats of significant value. Projects which qualify for streamlined ministerial review as provided under California law and containing area identified as a land use type other than urban in Figure C-1 of the Tiburon General Plan shall conform with the following: a. Projects shall submit a biological resources assessment prepared by a qualified professional that identifies special-status species, including endangered, threatened, sensitive, rare, and protected species, and their critical habitats, wildlife migration corridors, riparian habitat, and other sensitive natural communities (collectively "biological resources"). The biological resources assessment shall identify measures to protect biological resources based on local or regional plans, policies, regulations by the California Department of Fish and Game, US Fish and Wildlife Service, Bay Conservation and Development Commission, National Marine Fisheries Service, US Army Corps of Engineers, or other state or federal agency with jurisdiction over the biological resource, or best practices for resources conservation as established by resource protection or conservation plans. b. The project shall incorporate all biological resource measures identified by the biological resources report into the project plans. Measures to be implemented during construction and operation of the project shall be listed on the improvement plans. The project applicant shall certify compliance with the measures. c. The project shall provide a minimum of a 100-foot buffer from habitat for special-status species, wetlands, riparian areas, oak woodlands, and habitat of significant value as identified in the biological resources assessment which are present on the project site, unless a reduced buffer that is not less than 25 feet is determined to be adequate to protect such resources by the qualified biologist. No ground disturbance shall occur within the buffer area and the area within the buffer shall be permanent open space. d. If special-habitat species occur on the site or have the potential to occur on the site, as determined by the biological resources assessment, the qualified biologist shall identify adequate measures consistent with mitigation recommended by resource agencies (i.e., U.S. Fish and Wildlife Service, California Department of Fish and Wildlife) to avoid impacts to special-status species during any ground-disturbing and construction activities and the project shall implement such measures and include documentation demonstrating adherence to all measures. Certificates of occupancy shall not be approved without demonstration of adherence to all measures. Projects shall avoid construction or grading on portions of a site containing significant cultural resources. Projects which qualify for streamlined ministerial review as provided under California law and containing area identified as a land use type other than urban in Figure C-1 of the Tiburon General Plan shall conform with the following: De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 6 a. A cultural resources assessment, including site survey, shall be conducted by a qualified archaeologist and shall identify the potential for cultural resources on the project site. b. If significant cultural resources, or the potential for significant cultural resources, are identified by the cultural resources assessment, the project shall avoid such cultural resources and shall provide a minimum of a 100-foot buffer from significant cultural resources, unless a reduced buffer that is not less than 25 feet is determined to be adequate to protect such resources by the qualified archaeologist or measures, such as capping the resource or relocation of the resources to permanent open space, are identified as adequate to preserve the significance of significant cultural resources. No ground disturbance shall occur within the buffer area and the area within the buffer shall be permanent open space. The project shall implement all recommended measures and include documentation demonstrating adherence to all measures. Certificates of occupancy shall not be approved without demonstration of adherence to all measures. Chapter 16, Division 100 Section 16-100.020 Definitions of Specialized Terms and Phrases. Several definitions have been added to this section to address terms that have been added throughout the Municipal Code. Further, some definitions have been clarified or have language added to address the proposed changes to the Municipal Code. Zoning Map The Town of Tiburon Zoning Map would be amended to modify the zoning of the property at 4576 Paradise Drive (APN # 038-142-02) from RPD (Residential Planned Development) to R-3-10 (Multifamily Residential) as depicted in Exhibit B of the proposed ordinance. 3.0 ENVIRONMENTAL ANALYSIS CEQA Guidelines Section 15162 provides as follows: (a) When an EIR has been certified or negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 7 was certified as complete or the negative declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. (b) If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subdivision (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, and addendum, or no further documentation. Based on review of the Proposed Project, none of these triggers requiring supplemental CEQA analysis are triggered. Each of the potential triggering events is discussed in turn below. There are no substantial changes in the project that indicate there are new significant environmental effects or a substantial increase in the severity of previously identified significant effects that would require major revisions to the General Plan 2040 EIR. The Proposed Project would not alter the physical development that could occur under the approved General Plan and that was evaluated in the General Plan EIR. Rather, the Proposed Project would implement and be consistent with the approved General Plan. The Proposed Project would rezone 4576 Paradise Drive to a newly created zoning designation, R-3- 10. However, the General Plan 2040 EIR considered the development of that property at a density of 10 units per acre, consistent with the R-3-10 zone, and anticipated up to 93 dwelling units to develop on the site. The proposed ODDS clarify and standardize information already contained within the Zoning Code and considered in the General Plan 2040 EIR. The Zoning Ordinance Amendment to increase the maximum allowable height of primary residential structures in the R-3 and R-3-10 zones from 30 feet to 35 feet would be minor, and would not result in new or significantly increased aesthetics impacts. No revisions to the General Plan 2040 EIR would be required. There are no new or changed circumstances under which the Proposed Project would be undertaken that require major revisions to the General Plan EIR as a result of new significant effects or a substantial increase in the severity of previously identified significant effects. The Proposed Project is a continuation of implementing the General Plan 2040, and all environmental effects were already addressed in the De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 8 General Plan 2040 EIR. The circumstances under which the Proposed Project would be undertaken have not changed in the short period since the General Plan 2040 was adopted. Finally, the new information trigger is also not met. Throughout the process of adopting the General Plan 2040, the Town received several letters purporting to identify new information that was not previously known when the General Plan 2040 EIR was prepared. The information provided to the Town applied solely to the property at 4576 Paradise Drive and largely focused on geological, hydrological, and biological resources; access to public utilities including sewer and water infrastructure; fire and emergency access; and traffic safety. The Town, in response, prepared three memoranda addressing specifically conditions on the 4576 Paradise Drive parcel. Those three memoranda are: • Tiburon Housing Element Supplemental Memorandum: Site H, dated August 17, 2023 • Site H: 4576 Paradise Drive, Tiburon CA – Transportation Review, dated September 13, 2023 • Site Conditions and Analysis – 4576 Paradise Drive, Tiburon CA, dated September 14, 2023 Following a thorough review of the information provided to the Town for consideration, it was determined that no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the General Plan 2040 EIR was certified, was submitted to the Town. Likewise, there is no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the General Plan 2040 EIR was certified. The Proposed Project would not result in a new significant environmental impact or substantially increase the severity of a previously identified significant impact. The Proposed Project would result in minimal changes to the Zoning Ordinance, bringing it in line with the direction provided in the adopted Housing Element. Updating the Zoning Map to identify 4576 Paradise Drive zoned as R-3-10 would not result in a new significant impact. Establishing ODDS for development already anticipated by the General Plan 2040 and analyzed in the EIR would not cause a new significant effect. No new feasible mitigation measures or alternatives that were determined infeasible at the time of the General Plan 2040 EIR certification have been identified. As the Proposed Project would not create new significant impacts or exacerbate significant effects previously analyzed in the General Plan 2040 EIR, no mitigation measures would be required. Similarly, no new mitigation measures or alternatives which are considerably different from those analyzed in the General Plan 2040 EIR that would substantially reduce one or more significant effects on the environment have been identified. The Proposed Project is consistent with the analysis provided in the General Plan 2040 EIR and would not increase the density or intensity of development beyond that envisioned in the General Plan. In general, it is anticipated that impacts related to aesthetics, air quality, agricultural, biological, and cultural resources, geology and soils, greenhouse gas emissions, hazards, hydrology and water quality, land use and planning, population and housing, public services, transportation and traffic, and utilities would be the same under the Proposed Project when compared to the General Plan 2040 previously analyzed in the General Plan 2040 EIR. De Novo Planning Group A Land Use Planning, Design, and Environmental Firm Page | 9 4.0 CONCLUSION Based on the information above, the Proposed Project would bring components of the Town’s Zoning Ordinance and Zoning Map into compliance with the General Plan 2040 as analyzed in the General Plan 2040 EIR and would not result in any physical environmental effects or trigger the need for further environmental review. Should you need anything else, please do not hesitate to contact Christina Erwin at 916-997-1865. Sincerely, DE NOVO PLANNING GROUP Christina Erwin Principal Planner Tiburon Town Council November 15, 2023 PH-1: Municipal Code Amendments Late Mail Requests for Copies: Lea Dilena, ldilena@townoftiburon.org From:Sally Paulsen To:Town Subject:4576 Paradise Drive, Tiburon, CA Date:Sunday, November 12, 2023 11:21:50 AM Some people who received this message don't often get email from sjtiburon@comcast.net. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. To: Town ofTburon Re: Property at 4576 Paradise Drive, Tiburon, CA 94920 California Entity #: 202357811288Federal EIN #: 93-2400976 From: The Paulsens 75 Trinidad Drive Tiburon, CA 94920This is a letter in response to your permitting 144 units to be built at 4576 Paradise Drive, Tiburon, CA. While we have no problem with housing being developed, there are so many areas in Tiburon with land that have access to proper roadsto get to and from wherever one may need to go. If you have not been on Paradise Drive from Trestle Glenn winding all the way around and down to the Montessori school, then you should definitely make the trip before making such a drastic decision of putting 144 units onthat particular piece of land. Paradise Drive is, as is, a dangerous roadway for both cars, bicycles, and people. There are already many of both. Adding a minimum of 144 more cars, and more than likely that number will be higher, is irresponsible to say the least. Also,there are usually many trucks and construction vehicles on Paradise at any given time. Where there are many times when cars are trapped behind cyclists or trucks on the extremely windy, narrow road with many blind spots, adding even more traffic is unconscionable. We really believe you should reconsider permitting 144 units to be built on this particular piece of land. People who live along Paradise Drive have a hard enough time now getting out of their driveways safely or walking out to the street to place their respectivegarbage and recycling cans. If you give the permit without driving the route, at least via google maps, you are definitely not doing your due diligence. We certainly hope you will do your due diligence before doling outa permit that would make Paradise Drive more of a nightmare than it already is. You may also want to check out some of the accidents that haveoccurred on Paradise over the years. We have personally witnessed one bus and one car go over the edge - the bus ended up in a tree below and the car ended up in the patio area of a house below. Both accidents happened at the Paradise Cay area.Sincerely, Sally & David Paulsen From:Joan Foedisch To:PCComments; Lea Dilena; Dina Tasini; Kris Wyek Subject:Re: Development of Paradise Dr. Date:Tuesday, November 14, 2023 2:27:19 PM Some people who received this message don't often get email from joanfoedisch@gmail.com. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. On Nov 14, 2023, at 2:22 PM, Joan Foedisch <joanfoedisch@gmail.com> wrote: On Nov 14, 2023, at 1:19 PM, Joan Foedisch <joanfoedisch@gmail.com> wrote: On Nov 14, 2023, at 12:21 PM, Joan Foedisch <joanfoedisch@gmail.com> wrote: Dear Members of the Tiburon Town Council, My purpose in writing to today is to bring your attention to a matter of utmost concern, one that transpired today on Paradise Drive and highlights the potential hazards associated with current development initiatives in our community. Upon returning to my residence in Paradise Cay today I was witness to an incident involving an Audi SUV that had veered off Paradise Dr. and nearly landed in the backyard of a home on Trinidad Dr. Fortunately the driver was unharmed albeit badly shaken, unlike the incident a couple years ago in the same place on Paradise Dr. where the students did sustain injuries. During my interaction with the responding police officer while the tow truck pulled the car up from the embankment it was revealed that a tree had played a pivotal role in preventing more severe consequences. In the course of our conversation, the officer mentioned having previously voiced concerns about the construction of 93+ apartments on Paradise Dr., citing potential safely risks associated with increased cars due to development of the property. Unfortunately these concerns have gone unheeded. While I appreciate the complexities involved in urban planning, it is crucial to emphasize that safety consideration should remain at the forefront on any development project. This recent incident serves as a stark reminder of the potential dangers posed by decisions that may have been made without due consideration for the safety and well-being of our community. Beyond the immediate safety implications, there are a spectrum of other issues that underscore the need for comprehensive reevaluation of the the development plans. Finally I expect that the pushback from the community through letters and attendance at the Tiburon town meetings will be in the public record and its abundantly clear that we have made Tiburon Town Council aware of the dangers of increasing traffic on Paradise Dr. Sincerely, Joan Foedisch From:Matt Cutler To:Lea Dilena Subject:Re: Proposals to include Site J in the Town’s Housing Element Date:Tuesday, November 14, 2023 8:21:20 PM You don't often get email from mcutler@gmail.com. Learn why this is important CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. November 15, 2023 Mayor Jack Ryan and Members of the Town CouncilTown of Tiburon 1505 Tiburon Blvd.Tiburon, CA 94920 Re: Proposals to include Site J in the Town’s Housing Element Dear Mayor Ryan and Members of the Town Council, I am writing as the president of the Seafirth Estate Company, a 30-unit homeowner’s association directly below Site J. Our community believes that Site J should not be included in the current or any future versionsof the Town of Tiburon’s Housing Element due to the following: 1. The site itself: Site J is unsuitable for development due to its steepness, prior landslides,ephemeral streams, flood risk to nearby properties, the poor condition of Paradise Drive south of Trestle Glen, fire hazards, and more. We understand that the County of Marinhas already evaluated this property and disqualified it from its Housing Element due to these factors. 2. The site’s location: The property is not part of the Town of Tiburon. Annexation is a roughly year-long process, and a complete annexation application has not yet beenreceived by either Tiburon or LAFCo. 3. The lack of necessary analysis: There has been no assessment to verify if Site J couldbe covered under the current Housing Element programmatic EIR or would need further study. There has been no AFFH analysis of Site J. 4. The HCD deadline: The process for including Site J in the current Housing Element – including appropriately rezoning all properties in the site inventory – cannot becompleted by the January 31, 2024 HCD deadline. 5. Neighbor opposition: There are approximately 80 parcels immediately adjacent to anddirectly beneath Site J. As far as we know, there has been no outreach or communication regarding any potential future development of Site J. Once informed ofthese proposals, our neighbors strongly oppose any Site J development due to the established hazards to our homes and families. We appreciate the difficult decisions the Council has to make regarding this matter and the urgent work required to avoid financial penalties and further reductions in local control. And while we respect that this is a deeply contentious – and increasingly divisive – issue, SiteJ’s objective impairments cannot be overcome in the near or long term. Sincerely, Matt Cutler65 Seafirth Road President, Seafirth Estates Company Oppose High Density Development along Paradise Drive In Tiburon (Site J) To: Concerned Residents of Tiburon Oppose High Density Development on Paradise Drive (Site J). The proposal to annex the 27-acre site along Paradise Drive (aka the Winter Property or Site J) for development of high-density housing is unacceptable and premature. Myriad unaddressed issues include: 1) site buildability - steep cliffs, limited access, cost 2) landslide danger - these have occured in the past 3) adverse environmental impact - this is the only remaining undeveloped wildlife corridor between upper and lower Tiburon peninsula. No environmental, endangered species, wetlands impact studies have been conducted. 4) price tag for infrastructure updates required for sewer, water, fire protection, roads to accomodate 90+ additional houses and 200+ additional vehicles. Tiburon should not be required to subsidize the developer. 5) consideration of public view regarding impact on property values, quality of life, additional taxes that the citizens of Tiburon will be forced to endure 6) inconsistency with the vision and zoning for Paradise Drive that has been in place for many decades. Why is this important? We need to protect Paradise Drive from high density development. Our quality of life depends on it. Email, flyer, social media Signed by 90 people: Name Postcode Mario Saltarelli 94920 Claude Herail 94920 Mary Saltarelli 94920 Michael Roy 94920 Gloria Horns 94920 Mary Meyers 94920 Steve Block 94920 Katherine Hunsicker 94920 Lisa Falzone 94920 Bente Martinsen 94920 Name Postcode Loretta Lieberman 94920 Aleli Gabayan 94920 Casildo Gabayan 94920 Lina Arcenal 94920 Michael Green 94920 Niley Dorit 94920-1062 Arlington McCrum 94929 Matt Cutler 94920 Barbara McCrum 94920 Kathleen Saltarelli 96765 danilo ARCENAL 94920 Stacey Lescht 94925 Michael Linwood 94920 Julia Linwood 94920 Patricia Rosinski 94920 Dane Chambers 96765 Michael ROSINSKI 94920 Gail Johnston 94920 Meghan Potter 94920 Todd Rovak 94920 bruce moore 94920 David Potter 94920 Heidi Bolton 94920 Taylor Lembi 94920 Jeremy Lateiner 94920 Marcela Lembi 94920 Taylor Guerin 94920 Liberty Lind 94920 Sarah Preuss 94920 Ben Sperry 94920 Tamara Berkhaug 94920 Nicole Ayaz 94920 Name Postcode ELLEN SANFORD 94920 Sherry Wootton 94920 Barry Wootton 94920 Deborah Soofer 94920 Karl Wilber 94920 Tracey Gross Cominos 94920 Abbie Rockwell 94920 Julie Wilber 94920 Danielle Creech 94920 Laura Perez 94920 Garrett Vygantas 94920 Jessica Owens 94920-1123 Edith Helmholz 94920 Dana Borneo 94920 Tom Duley 94920 Don Miller 94920 Evangeline (Vangie) Roja 94920 Christina Kan- Duley 94920 Gregory & Ann Swart 94920 John Clauss 94920 Tony Ayaz 94920 Helen Muirhead 94920 Sandra Swanson 94920 Donna Block 94920 Jocelyn Sylvester 94920 Richard Schmotter 94920 Greg Cox 94920 Kathleen Foster 94920 Dan Hu 94920 Molly Lateiner 94920 Name Postcode Katie McCarthy 94920 Justin McCarthy 94920 Ben Fisher 94920 Pamela Touma 94920 Clara Prigge 94920 Alina Zyakun 94920 Ayse McDow 94920 Karen Gullett 94920 Connie Maddox 94920 Matthew Novotny 94920 Jan Gullett 94920 liliana Arias 94920 Carlos Arias 94920 Victoria Jefferson 94920 Simon Jefferson 94920 Michelle Moore 94920 John Ohmer 94920 Greg Maddox 94920 From:claudehl@aol.com To:Lea Dilena Subject:Nov. 15 Town Council meeting comments Date:Wednesday, November 15, 2023 10:46:02 AM You don't often get email from claudehl@aol.com. Learn why this is important CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Council Members of the Town of Tiburon, These are the comments I would like to make, regarding the proposed substitution of Site J to Site H, forthe purpose of building 93 housing units, as part of the Tiburon Housing Element plan. I would like to read an abbreviated version of it tonight at the Town Council meeting, as part of thecomments for items not on the agenda Thank you,Regards Claude Herail9 Acacia DriveTiburon, CA 94920415 435 6974 Good evening, my name is Claude Herail and I have lived at 9 Acacia Drive for 30 years. In the October 25 edition of the Ark, I found out that the 27-acre Winter property, also designated as the Slater & Son property, below us, was being considered as a substitute for a high-density housing development of 93 units, planned to take place near Paradise Cay. Those discussions had been ongoing on for 9 months without any of the neighbors being notified. Now that we are aware of it, a number of us are here to register our opposition to this idea and an online petition has already gathered over 100 signatures in a few days. A high-density housing development in this part of the Tiburon peninsula goes against the goals that past General Plans used to state: “ to preserve the low-density and residential and village character of the community”. As part of that effort, the General Plan kept low the maximum number of EDUs allowed for undeveloped land south of Trestle Glen. Not too long ago, the 32-acre Rabin property was approved for 14 homes, the 27-acre Tiburon Glen project, for 4 homes. Also, the Martha Property was purchased to join the Old St Hillary preserve, thanks to the hard work of the County, the Town of Tiburon and others, with the voters’ approval. Multiplying by at least ten the maximum numbers of EDUs for the Winter property would be a complete rejection of those decisions. Then there are environmental issues: the Winter property is part of a wildlife corridor linking Ring Mountain to the tip of the Tiburon Peninsula and that would be cut off by this development, isolating the animals there. There are also serious questions regarding the feasibility of building almost 100 units there. Most of those 27-acres are fairly steep hills, cut by small ravines where seasonal streams are protected by law, with no construction allowed within 100 feet. Some of those hills and ravines had landslides in the past, as shown by California Geological Survey maps. The costs of construction alone will make low-cost housingprohibitive. And there are traffic issues. Paradise Drive is popular with recreational bicyclists but it has no bicycle lane and no room for one. Passing is difficult and risky. Potentially adding 200 more cars on this stretch of road would make it even more dangerous, not to mention large construction equipment for years. There is also the fire danger, and the difficulty to evacuate people in case of an emergency or for emergency vehicles to get through. The proposal of using Hacienda as an alternate access would be a non-starter, as we learned from the Rabin development. I am not opposed to all development and I understand the need for additional housing, especially low-cost housing. I also sympathize with the people who live near the Paradise Cay proposed development. But moving the problem further down the road for others to deal with is not a solution, all it would do is pit neighborhood against neighborhood, causing conflicts and discord. In conclusion, I believe that potential sites should be studied on their own merits, resident neighbors should be notified so they can have some input and there should be some continuity with past decisions from Town and County planners. Thank you. November 15,2023 Mayor and Council Members; I am the owner of the property at 4576 Paradise Drive,also known as Site H in the Town of Tiburon’s Housing Element. I know you are considering adopting zoning amendments and ODDS,and I wanted to make sure you had access to any information you needed in order to make an informed decision. Almost everything included here has previously been submitted.However,there I have included a letter from Peter Prows (Exhibit 59),who represents the Committee for Tiburon,that he sent to HCD that made numerous false claims,including: “Unlike Tiburon’s consultants,who told the Planning Commission they had never even been on the property,the Committee’s consultants have—and have reviewed all the available environmental information about the property.” As Mr.Prows was aware,I did provide access and permission to the Town of Tiburon’s consultants who spent hours on my property verifying conditions on the site for a report dated September 14,2023.This report was provided as Exhibit 8 to the Public Hearing item PH-1 on an Amendment to the 2023-2031 Housing Element for the September 20,2023 Town Council meeting.Mr.Prows submitted correspondence #32 to that meeting and spoke during public comment.Mr.Prows was clearly aware that Tiburon’s consultant had been to my site,yet chose to tell HCD that they had not in his September 28th letter to them.He also told them that the consultants for the Committee for Tiburon had “been on”my property which is either a lie,or an admission that they illegally trespassed. I think this statement is representative of how Mr.Prows and his client have chosen to go about things.Their submissions have been full of misrepresentations and half-truths designed to further their argument at the expense of the facts. I submitted a letter to HCD in response to Mr.Prows letter,which is attached as Exhibit 53. Exhibits 56 and 57 are Status Service Records of calls placed to the Marin County Sheriff by someone listed as a member of the Committee represented by Mr.Prows.This member of the Committee trespassed on my property on two separate occasions,and refused to leave until instructed to do so by the sheriff.It’s unclear if the Committee’s consultants also trespassed on my property,but Mr.Prows letter says that they did. Thank you, Eric Crandall Table of Contents Ephemeral Drainage Information Page 4 History of Opposition Page 9 Geotechnical Information Page 14 Slope Information Page 15 Utility Information Page 16 Letters Submitted to HCD Page 17 Notable Information Regarding CEQA and General Plan Lawsuits Page 18 Expert Reports Page 20 Exhibits Exhibit 1 Neighbor Email Regarding Beach Page 22 Exhibit 2 103 Trinidad Drive Boundary Survey Page 31 Exhibit 3 California State Lands Commission Letter Page 32 Exhibit 4 Letter from Neighbors Attorney re:Trespassing on Beach Page 34 Exhibit 5 Letter from County Code Enforcement re:Tree Removal Page 37 Exhibit 6 Letter to Paradise Cay HOA Grievance Committee Page 38 Exhibit 7 Neighbors Light Pollution Complaint Page 41 Exhibit 8 Neighbors Bee Poop Complaint Page 47 Exhibit 9 Neighbors Bee and Ant Complaint Page 50 Exhibit 10 California Department of Fish and Wildlife Report Page 51 Exhibit 11 Neighbors Claim re:Boundary Line Page 53 Exhibit 12 Neighbors Boundary Exhibit Page 56 Exhibit 13 State Licensing Board Letter Page 60 Exhibit 14 County Department of Agriculture Report re:Bees Page 65 Exhibit 15 Ark Police Report re:Bees,Chickens,Cows Page 67 Exhibit 16 Marin Resource Conservation District Report Page 68 Exhibit 17 Recorded Boundary Survey Page 70 Exhibit 18 Neighbors Comment Letter to Town Council Page 73 Exhibit 19 Marin Map Slope Info Page 78 Exhibit 20 RWLSS Slope Calculation Page 79 Exhibit 21 1031 Slope Calculation Page 80 Exhibit 22 Cal Fire Hazard Map Page 82 Exhibit 23 MIG Biological Constraints Analysis Page 83 Exhibit 24 Tiburon 2020 General Plan Land Use Element Page 178 Exhibit 25 Tiburon Municipal Code Zoning Uses Page 208 Exhibit 26 USGS Map Disclaimer Page 223 Exhibit 27 NWI Map Disclaimer Page 224 Exhibit 28 Marin Maps Disclaimer Page 225 Exhibit 29 Le Merle Education Page 226 Exhibit 30 Le Merle Resume Page 228 Exhibit 31 Neighbor Text re:Threat of Litigation Page 234 Exhibit 32 Ark Police Report re:Wood Chipping Page 235 Exhibit 33 Ark Quote of Peter Prows re:Threat of Litigation Page 236 Exhibit 34 MIG Delineation of Wetlands and Other Waters Page 237 Exhibit 35 Civil Engineer Letter to HCD Page 306 Exhibit 36 Civil Engineer Letter to Tiburon Page 307 Exhibit 37 Letter from MMWD re:Water Service Page 310 Exhibit 38 Letter from MMWD re:Water Service Page 312 Exhibit 39 Letter from Sanitary District No.2 re:Sewer Service Page 314 Exhibit 40 Analysis of Fire Flow Requirements and Land Use Density Page 316 Exhibit 41 June 6th Letter to HCD Page 318 Exhibit 42 July 11th Letter to HCD Page 320 Exhibit 43 July 14th Letter to HCD Page 321 Exhibit 44 July 27th Letter to HCD Page 331 Exhibit 45 July 28th Letter to HCD Page 335 Exhibit 46 Attachment to July 14th HCD Letter Page 337 Exhibit 47 Harmonie Park Letters to HCD Page 344 Exhibit 48 Le Merle Skills Page 352 Exhibit 49 Le Merle Experience Page 356 Exhibit 50 August 22nd Letter to Planning Commission Page 360 Exhibit 51 August 23rd Letter to Planning Commission Page 363 Exhibit 52 CEQA Lawsuit Study Page 367 Exhibit 53 October 4th Letter to HCD Page 469 Exhibit 54 Fire Expert Resume Page 472 Exhibit 55 September 21st Letter to HCD Page 479 Exhibit 56 Sheriff's Service Record September 18th Page 481 Exhibit 57 Sheriff’s Service Record September 15th Page 486 Exhibit 58 October 2nd Letter to HCD Page 488 Exhibit 59 Committee’s Letter to HCD on September 28th Page 490 Ephemeral Drainage Information There have been a number of statements,as well as numerous correspondence from people who are citing online maps to prove their points about my property.Online maps are not a reliable source for accurate,site specific information.All of these maps provide lengthy disclaimers regarding their accuracy,and what they can be reliably used for (Exhibits 26,27, and 28). Below are examples of the unreliability of these online maps.Both of these maps were part of a document submitted to Tiburon.As you can see,these two maps do not show the same number of streams,or even the same locations for what is shown.One common feature of the online maps is that they show three different drainages crossing Paradise Drive onto my property.One from near 9 Mateo Drive which crosses my property just to the south of one of the homes on my property.A second is shown crossing Paradise Drive between Pelligrinelli Drive and 4575 Paradise Drive and crossing through my property between the two homes on my property.The third is shown running to the north of the homes on my property.In actuality the second water course shown that crosses my property between the homes does not exist.It does exist as shown on the other (west)side of Paradise Drive,but when it crosses Paradise Drive in a culvert under the street,it comes out at the top of the water course that runs on the south side of the homes.This is easily verifiable by anyone who wanted to stop and look on the west side of Paradise Drive at where the water courses are there,and then on the east side of Paradise Drive at where they emerge from under the street. Fortunately,you do not have to take my word for it.There have now been four experts who have visited my property at 4576 Paradise Drive in Tiburon specifically to look at the water features on my site.This includes streams,wetlands,and marshes.All of these experts issued written reports with their findings.All of these experts also identified that there were two ephemeral drainages on my property.Two of these were independent experts who were representing public entities (California Department of Fish and Wildlife and the Marin Resource Conservation District).The third was a biologist from a large environmental consulting firm (MIG).None of these experts found marshes,or wetlands as defined by the US Fish and Wildlife or the Town of Tiburon.Recently a consultant for the Town also visited,and made similar findings. The first of these reports was done by a Senior Environmental Scientist at the California Department of Fish and Wildlife in response to complaints from neighbors (Exhibit 10).The biologist and a CDFW Warden arrived at my property unannounced on February 1,2022 and entered my property without my knowledge or permission.According to their report,“CDFW staff visited the property to investigate potential violations of Fish and Game Code.” There are two important things to note.First is the date of the visit.The visit was made on February 1,2022,which is in the middle of the rainy season.It was an ideal time to visit to see any water features on the site that are present.If any additional streams,marshes,or wetlands were present on my site,they would have been visible during this inspection.The second item of note is that the California Department of Fish and Wildlife is the agency in the State of California charged with protecting water features such as creeks,streams,marshes,wetlands, etc.They were on my site specifically to investigate violations related to the water features on my property.They are the authority in the State of California on the subject. In their report they include a map showing the water features on my property and identify two drainageways which they labeled as the “Northern Drainage”and “Southern Drainage”on their map.The map from their report is shown below.Those were the only two waterways they found, and they also found no violations of the Fish and Game Code.The eucalyptus trunks they noted in the drainage were removed.The small wooden structure on the beach adjacent to the southern drainage was also removed. There was another report done by the Urban Streams Program Manager at the Marin Resource Conservation District (Exhibit 16).The author of the report has,“substantial experience working specifically with streams and regulatory compliance in Marin County for eight (8)years.”This report,done June 6,2022,also identified the two drainageways,which were referred to as the “northern drainage”and the “southern drainage.”There were no other waterways,marshes,or wetlands identified in this report either.The structure near the discharge point of the southern drainage was removed as recommended,and we have been following the recommendations for the removal of non-native species. Finally,we commissioned a Biological Constraints Analysis for our site,from MIG which is a large environmental consulting firm.This report identified two ephemeral streams and a swale. As we had the two drainageways on the site,we ultimately supplemented that document with a Delineation of Waters report which looked closely at all of the potential water features of the site (Exhibit 34).This report was done to,“identify the extent and distribution of wetlands and other waters occurring at 4576 Paradise Drive ...”The report did a formal technical delineation in accordance with the US Army Corps of Engineers methodology.The report states,“This included collection of technical data on soils,vegetation,and hydrology,which are used to identify wetlands and other waters.The USACE methodology is accepted by both federal and state regulatory agencies.” In completing the Delineation of Waters report,the author looked at the National Wetlands Inventory (NWI)maps that are referenced in a submission to the Town.In reference to these maps,the author writes: “The NWI identified two temporarily flooded intermittent riverine systems within the parcel (R4SBA)(NWI 2022).NWI maps are based on interpretation of aerial photography,limited verification of mapped units,and/or classification of wetland types using the classification system developed by Cowardin et al.(1979).These data are available for general reference purposes and do not necessarily correspond to the presence or absence of jurisdictional waters.”This statement is confirmed by the NWI’s own disclaimer (Exhibit 28). The author also looked at the other readily available maps from the US Geological Survey, Natural Resources Conservation Service,NWI,and Google Earth.He then visited the site to look for hydrophytic vegetation,hydric soil,and wetland hydrology,and utilized the findings to complete Wetland Determination Data Forms.The report mapped the wetlands and other waters of the US that may be subject to regulation under Section 404 of the Clean Water Act and waters of the State regulated by the Porter Cologne Water Quality Act,which is administered by the Regional Water Quality Control Board.Riparian habitat that could be subject to Sections 1600-1607 of the California Fish and Game Code was also mapped. The report concluded that there were two ephemeral streams which were the same two identified by CDFW,MRCD,and most recently the Town’s consultant. The map showing the location of the two ephemeral drainageways is below.The top of bank for these drainages is also shown.The brown line near the top of the page shows the location of the swale.This map accurately represents the actual locations of all the regulated water features on the site,which are limited to the boundaries of the two ephemeral drainages. Four experts visited the site to locate and identify the water features on the site.All four provided written reports that identified just the two ephemeral drainages.All of these reports have previously been provided to the Town of Tiburon,but I have attached the three that were provided to me to this email for your reference.The consultant for the Town was the fourth expert to reach the same conclusion about this subject on my site. History of Opposition to Improvements at My Property We purchased our property in 2019,and have been subjected to consistent and organized efforts by a small group of local residents to stop any improvements from happening here. It started with complaints about us using the beach that is part of our property (Exhibit 1).A boundary survey already existed that established that we had legal access to the beach attached to our property (Exhibit 2).An attorney from the California State Lands Commission weighed in,and sent a letter confirming we were able to use the beach and access the water from our property (Exhibit 3).Despite this,we were subjected to threats from a lawyer claiming we were trespassing when we used the beach that was part of our property,that we could not rely on the boundary survey that had been done,that the Public Trust Doctrine did not apply in this case,as well as numerous other claims made without evidence (Exhibit 4). From there it escalated to claims that we were removing trees without the proper permits.Marin County Code Enforcement did an inspection and issued a report (Exhibit 5)and found no violations. The complaints and harassment continued,and we attempted to resolve the situation through the Paradise Cay HOA Grievance process (Exhibit 6).Unfortunately,we never received a response to our request for mediation through them,or to our request to enter mediation through the County of Marin District Attorneys Neighbor mediation program. Complaints were made about all manner of things (Exhibit 15).Warm white lights in our oak trees (Exhibit 7),bee poop (Exhibit 8),ants,(Exhibit 9),tree removal (Exhibit 5),the two ephemeral drainages that run through our property (Exhibit 10),and countless other things. The neighbors had a boundary exhibit put together that they claimed was a boundary survey (Exhibit 11),and showed my property line where they thought it was (Exhibit 12).Ultimately the surveyor who did that for them faced discipline from the State Licensing Board (Exhibit 13). One common factor in the complaints is that there was no concern to if the complaints were true,or if law,reason,or fact supported the allegations. The County of Marin Department of Agriculture issued a report regarding the bee poop claims (Exhibit 14).County of Marin Code Enforcement wrote a report on the tree cutting claims (Exhibit 5).The California Department of Fish and Wildlife (Exhibit 10)and the Marin Resource Conservation District (Exhibit 16)wrote reports regarding complaints about the drainages.We had a full boundary survey of our property done and recorded with the County that showed the location of our boundary line (Exhibit 17).Despite this,and the lack of any boundary surveys to the contrary,some neighbors still contend the boundary line is somewhere other than it is shown on two recorded boundary surveys (Exhibit 18). More recently,these same neighbors have continued the practice of making false claims in their communications with the Town as well as with the State of California Department of Housing and Community Development.Below are a few examples of those provably false statements that they recently made to support their claims that my nearly 10 acre infill site could not accommodate 93 units. The attorney for the Committee to Preserve the Paradise Cove Salt Marsh,Tidelands,and Neighborhood Safety wrote: “The average slope of Site H is just under the 60°gradient of “America’s scariest ski slope” Corbet’s Couloir in Jackson Hole,Wyoming.”He also said that my site has “an average slope of 58°,-steeper than most double-black diamond ski slopes” This is false.MarinMap.org shows the average slope at 29%(Exhibit 19).Multiple surveyors calculated my average slope at 27%(Exhibits 20 and 21).58°is equal to approximately 120% slope,so this isn’t even close. It has been claimed that the "location of Site H in an area of both High and Very High Fire Risk” This is also false.It is in a “moderate”fire risk zone according to Cal Fire maps (Exhibit 22).The Town uses Cal Fire maps in their General Plan. In a submission for the Planning Commission meeting on August 23,2023 and labeled Late Mail #1,Mr.Le Merle writes that my property “...is home to home to wildlife species including endangered.”In the same authors submission for the same meeting identified as Late Mail #12, he writes,“The reason why the owner has added cattle is to eat protected botany including perhaps Tiburon Mariposa Lilies,and to scare away protected and endangered species perhaps including red legged frogs and Great Egrets in the ephemeral marsh.” There is no evidence provided to support any of these damning claims.To the contrary,a biological constraints analysis done by a qualified biologist found no special status plants or animals on my property (Exhibit 23).There has also not been any marsh identified on my site. At the Town Council meeting on June 7th,2023,Late Mail #39 was from Peter Prows,an attorney representing a group of nearby residents who oppose the Town increasing the allowed density on my property. In his letter,Mr.Prows states,“Until now,Tiburon has recognized Site H as a special environmental refuge.”Tiburon has only recognized my property as another parcel that was within its sphere of influence,and later within its jurisdiction.It had never been recognized, acknowledged,or referred to as an “environmental refuge”as claimed.In fact,in the Tiburon 2020 General Plan (Exhibit 24),which was adopted in September of 2005 included a description of my property which said,“This approximately 9.1 acre site is located on Paradise Drive just south of Paradise Cay.The property,which is currently developed with two single family homes, slopes gently from Paradise Drive to San Francisco Bay.” Mr.Prows goes on to say,“This change would make the current open space use of Site H illegal.”This is two false statements in one.First,the current use of my site was not,and is not, open space.The Tiburon 2020 General Plan gave my property a land use designation of PD-R. The Tiburon 2020 General Plan lists the PD-R land use designation as a “residential land use designation”,and explains that it is one of five land use designations assigned to “single family neighborhoods.”(Exhibit 24)There have been two homes and a guest house on the property for many years,and the property has been continuously utilized for residential uses.The RPD zoning that the property has is a residential zoning that allows for residential uses,including the building of up to one dwelling unit per acre (Exhibit 25). Despite the claims from Mr Prows,changing the zoning from RPD to R-3-10 as is proposed, does nothing to make the current use illegal as claimed.The current use is residential,and R-3-10 is just another residential zoning designation that allows for the continued residential use of the site.The proposed R-3-10 zoning does allow for 10 to 12.4 dwelling units per acre,but it does not make the present use of the site illegal as stated. In his Late Mail #2 submission to the Town Council for their September 6,2023 meeting,Mr.Le Merle writes,“Our submissions provide you accurate information from US Government sources that define the developability of Site H which is 0%or close to 0%.”The information he has provided is from online maps that all contain lengthy disclaimers regarding their accuracy,and what they should be used for (Exhibits 26,27,and 28).Mr.Le Merle seeks to utilize these regional maps,and apply their information specifically to one property. Mr.Le Merle writes regarding the professional reports we commissioned to help evaluate our property,“We don’t know why the owner/developer materials include false information,but what we do know is that they have so far chosen not to revise and correct their errors.”He continues, “No judge in America would be able to turn a blind eye to false information being provided to government officials in order to gain approval for a project intended to make the submitter money.” So Mr.Le Merle,who is an investor (Exhibit 30)that got a masters in geography nearly forty years ago (Exhibit 29),contends that only the information he is providing,that he found on the internet,is accurate.Mr.Le Merle feels that the reports we had done by qualified professionals including biologists,geotechnical engineers,and others who actually visited my site in order to provide professional opinions are what contain “false information”,and can’t be relied upon. In addition,he maintains that Tiburon also can’t rely upon the opinion of their environmental consultants because,“it contains the same false information as the owner/developer materials and the MIG report.”Mr.Le Merle does not mention the reports from an Environmental Scientist at the California Department of Fish and Wildlife (Exhibit 10)and the Streams Program Manager at the Marin Resource Conservation District (Exhibit 16),which also reached the same conclusion as the MIG report and the report by Tiburon’s consultants. There have also been numerous threats made regarding our desire to make improvements on our property.A neighbor,Scott Beauchamp,who had been acting as the neighbors representative in our discussions sent me a text on August 31,2021 (Exhibit 31)that said,“. ..they need to understand the damage you are creating with being able to develop your property,and the risk of their investment when you are tied up in approvals and/or litigation ...” Mr.Beauchamp was upset because we were using a wood chipper on our property during the allowed hours for loud work.Neighbors had previously called the sheriff on us for the same thing (Exhibit 32). Interestingly,this threat to delay proposed development was made not about the potential to develop 93 units on my property,but my stated desire to build 4 or 5 homes here.It was clear then that they were happy to try and delay any project on my site,including through litigation. The threats of litigation have since materialized and continued.Not only has a group of neighbors sued the Town of Tiburon to try and prevent my site from being developed,but they have also threatened to sue me if I submit a proposal to develop my site. This is a quote from the July 12,2023 edition of The Ark newspaper (Exhibit 33): “There is no existing development application or site plan for the property filed with the town of Tiburon,and there’s no requirement for the owner to build at all.However,the neighbor group’s attorney,Peter Prows of San Francisco-based Briscoe Ivester &Bazel LLP,said they’re prepared to file another suit against the owner,Sierra Pines LLC,if it attempts to do so.” So despite there not being a development application to look at,Mr.Prows said that his clients will file a lawsuit if we submit an application.Clearly the intention here is only to delay or stop any development,as how else could they be so sure they would file suit?Even Mr.Prows making a statement such as this to the media is designed to delay development by scaring myself or any future owner from pursuing a project for fear of ending up in court.His clients are not concerned with CEQA compliance,or anything else.Their sole concern is preventing and minimizing development on my site,and they are going to utilize the courts to do this in an attempt to delay,and hopefully prevent,any development on my nearly 10 acre in-fill site that is surrounded by development. Jeffrey Chanin stated at the August 23,2023 Planning Commission meeting,“This lawsuit isn’t going to end ...”He continued,“It’s not a threat,it’s just the only protection the homeowners out there have.”He makes it clear that the Committee he represents is trying to protect their interests and not the environment. It is the opinion of members of the group that Mr.Prows represents that my nearly 10 acre infill property,surrounded by development is,“100%undevelopable.”At the August 23,2023 Planning Commission meeting,Felix Le Merle said,“Site H appears 0%developable.”At the same meeting,Matthew Le Merle said,“This site doesn’t qualify as buildable.”Also at that meeting,Mr.Chanin said,“There’s really no buildable area there.” In Late Mail #2 submitted in advance of the Town Council Meeting on September 6,2023,Mr. Le Merle writes that he was,“...shocked to hear Site H,which we have known for 20 years was 0%developable ...”was in Tiburon’s Housing Element. It is the stated position of some residents in close proximity to my property,that the entire 9+ acres is completely unbuildable.There are numerous biologists,civil engineers,and other professionals who have visited the site,written reports,and determined otherwise. The statements and actions of a handful of neighbors in opposition to any development at my property make it apparent that they are not concerned with the facts,or what could actually be built.It’s clear that they are opposed to my property being developed in any way.They have consistently tried to use false claims and threats to prevent anything from happening at my property,and are on the record with their plans to continue to do so. Summary of Geotechnical Situation As the owner of 4576 Paradise Drive,I can state unequivocally that no qualified professional has offered an opinion indicating that there would be any issues with developing my property with one home,or 100 additional units. To the contrary,we had a 40 page geotechnical site study done by a licensed geotechnical engineer.The study concluded that there were no restrictions to where on the property new construction could be located,and that any proposed residential development could use standard engineering and construction practices recommended by the author. The geotechnical study was comprehensive,and looked at the geotechnical reports that were available for all the homes in the general vicinity.There were also subsurface explorations done to observe the actual site conditions on different portions of the site. The author of the report has submitted a number of letters regarding the suitability of my property for development that have been submitted to the Town as well (Exhibits 35 and 36).In those letters he makes it clear that there are no geotechnical issues with developing the site at a density of 10-12.4 units per acre. Developments in Tiburon With Similar Slopes and Densities The slope of my property has been calculated by two different licensed surveyors to be 27% (Exhibits 20 and 21).Publicly available information on MarinMap.org lists it at 29%(Exhibit 19). Utilizing information on MarinMap.org,I looked at some developments in Tiburon with similar densities and similar slopes.This list is not meant to be exhaustive,but just some of the sites that seemed to have similar conditions.All slopes and lot sizes are approximate,and are estimated from data and measurements found on MarinMap.org. There is a development on Circle Drive in Tiburon that has R-3 zoning and where the lot size and slope are very similar to Site H.The overall site area is approximately 10.08 acres,and the average slope of the entire area is approximately 23.96%.There are a total of 151 units that have been developed on this site (approximate density of 15 du/ac). There is development on Harbor Oak Drive in Tiburon that has R3 zoning (10,20,30,36,40, and 50 Harbor Oak Drive)that has a lot size of 2.88 acres,an average slope of 45.40%that has 48 units (approximate density of 16.66 du/ac). There is a development on Mariner Way in Tiburon that has R3 zoning (1200,1206,1212,1300, 1325,1335,and 1345 Mariner Way)that has a lot size of 2.97 acres,an average slope of 37.83%that has 43 units (approximate density of 14.47 du/ac). There is a development on Red Hill Circle in Tiburon that has R3 zoning (60-106 Red Hill Circle) that has a lot size of 2.46 acres,an average slope of 32.95%that has 24 units (approximate density of 9.75 du/ac) There is a development at 90 Lyford Drive in TIburon that has R3 zoning,a lot size of 0.74 acres,an average slope of 51.53%,and 10 units (approximate density of 13.51 du/ac). There is a development at 1410 Vistazo West in Tiburon that has R3 zoning,a lot size of 0.71 acres,an average slope of 30.19%,and 10 units (approximate density of 14.08 du/ac). There is a 7.58 acres site on Ned’s Way in Tiburon that has RMP zoning,an average slope of 21.96%,and has been developed with 102 units (approximate density of 13.45 du/ac) There is a site off Paradise Drive in Corte Madera near the Tiburon border (APN 038-011-38), that is 4.32 acres,has an average slope of 35.97%,and has 72 units (approximate density of 16.66 du/ac). There is a site off Paradise Drive in Corte Madera near the Tiburon border (APN 038-011-23), that is 2.8 acres,has an average slope of 29.57%,and has 54 units (approximate density of 19.28 du/ac). Availability of Utilities and Fire Flow My property currently has water service provided by Marin Municipal Water District,gas and electric service provided by PG&E,internet provided by Comcast,and is within the bounds of Sanitary District No.2 for sewer service. Marin Municipal Water District stated in an email on August 2,2023 (Exhibit 37)that, “Depending on the proposed project you would just have to be in compliance with us,pay associated fees,and put in additional water meters as necessary.” In a follow up email,when asked specifically about providing water service to 93 additional units,MMWD wrote,“That is correct.Water is currently available for the project.”(Exhibit 38) Regarding sewer service I received an email response from a Senior Civil Engineer with Sanitary District No.2 (Exhibit 39)on August 1,2023 stating,“Yes,CMSA will have no issue with treating any number of additional units/houses.” In regards to fire protection and fire flow at my property,an ex-paramedic with the Tiburon Fire Protection District had stated that there was only one fire hydrant adjacent to my site.That is incorrect.There are three adjacent to my property along Paradise Drive,and one along Trinidad Drive. While the Paradise Drive Visioning Plan that was previously submitted clearly stated that there was 1000 gpm available along the portion of Paradise Drive where my property is located,I reached out to an expert to obtain a professional opinion on any issues with fire protection or fire flow at my site (Exhibit 40).This expert stated that fire flow and fire protection would not be an issue on my site.The letter says,“There is no correlation between land use density and fire flow requirements ...”It continues,“It is my professional and expert opinion that any consideration of increasing use densities is not related to fire flows.The fire code as adopted by TPFD does not use density to calculate and identify required fire flow for one and two-family dwellings and townhouses.”The resume of the author of that letter is attached as Exhibit 54. Submissions to HCD We have submitted a number of letters to HCD letting them know that there is owner interest, and that the site is viable at the density included in the General Plan. HCD received multiple letters from the attorneys representing the Committee for Tiburon regarding my site.Unfortunately there were numerous false statements included in these letters that I felt required a response that included the facts proving that the claims were incorrect. As these responses were provided directly to HCD,and not to the Town of Tiburon,I wanted to give you the opportunity to review them.They are attached as Exhibits 41-47,53,55,and 58. Notable Information Regarding CEQA and General Plan Lawsuits Peter Prows is one of the attorneys of record for the Committee to Preserve the Paradise Cove Salt Marsh,Tidelands and Neighborhood Safety.They filed the lawsuit against the Town of Tiburon claiming that Tiburon’s General Plan is not internally consistent and that the EIR done by Tiburon was not adequate.Mr.Prows has also submitted multiple written and verbal statements on behalf of his clients that make similar claims. The assertions made by Mr.Prows on behalf of his clients appear to be inconsistent with past statements he has made.Mr.Prows was a guest on The California Appellate Law Podcast on September 13,2022 (https://www.calpodcast.com/1093703/11310610).He made numerous comments relevant to this topic,and the lawsuit he filed that I wanted to share with you. Mr Prows said,“CEQA is not meant to be the end all be all and there are other values that are important.With housing costs being what they are in California,essentially the number one concern of Californians,it’s not surprising that the courts are maybe taking a more critical eye towards what are we really doing here.”Mr.Prows seems to acknowledge that the courts are being more critical of the same sort of claim he is bringing. He continued,“I think part of the problem is that local agencies,there is sort of no end to the process.They have to do CEQA when they amend their general plans or amend their zoning and then at the individual project level,developers have to do CEQA all over again.”Mr.Prows states that the exact CEQA process that Tiburon followed is what is required.Tiburon completed an EIR on their updated general plan and zoning changes,and did not analyze site specific impacts to any of the sites because developers have to go through the CEQA process again on each individual project.As Mr.Prows is clearly aware of this process,it’s surprising that he is making an argument on behalf of his clients,that he understands is not true,and therefore his clients would have no chance of prevailing on. Mr.Prows also said,“Let people essentially,by right,build in the places that are designated in the General Plan to build and not build where the overriding planning documents say we shouldn’t be building.”While Mr.Prows expressed that he feels people should be allowed to build in places designated by a General Plan,he doesn’t seem to have an issue with arguing against building in those same locations,as he is doing so in this case. Mr.Prows continued,“Single family homes often,you know,they require more development footprint,and when you’re building in more green space or open space,then you can have greater impacts to species,to wetlands than you would if the development was concentrated, especially with concentrated infill,you know,existing neighborhoods.”Here,Mr.Prows is acknowledging that multi family homes tend to have less environmental impact than single family homes.He notes that this is especially true for infill sites,which my property is. I believe Mr.Prows is saying that if a property like mine were to be subdivided into nine estate sized residential lots as was allowed by the previous one unit per acre density,more of the property would likely be disturbed than if 93 units were built,concentrated on the more developable parts of the site. Unfortunately,CEQA lawsuits like the one brought by Mr.Prows on behalf of the Committee he represents are now becoming part of the process.According to In the Name of the Environment Part III:CEQA,Housing,and the Rule of Law (Exhibit 52),“...modern CEQA lawsuits are primarily filed to block housing and public infrastructure projects in existing neighborhoods, especially cities.” The report notes that,“The second most frequent target of anti-housing lawsuits is land use and zoning code approvals that make it easier to build more housing,including apartments,as required by state laws like SB 375,RHNA,and AFFH.” The Town of Tiburon has unfortunately become part of this statistic for their compliance with the state mandated RHNA requirement,and AFFH laws.Interestingly,the report found that,“the top target of all CEQA lawsuits filed against housing during the study period are multi-family ...” The report also stated that 100%of CEQA suits filed in the Bay Area are for infill development, like my site. Sadly,it seems that when a jurisdiction changes policies and/or zoning to comply with state law and allow for multi-family housing in the Bay Area,there is a good probability they will be sued for a CEQA violation. Expert Reports At the August 23,2023 Planning Commission meeting,Matthew Le Merle and others stated that he was an expert,qualified to give a professional opinion on my property.He made similar statements in submissions to the Town prior to that meeting.Despite what Mr.Le Merle claims, there is no evidence to support that he is qualified to offer an expert opinion on anything related to my property. At that meeting Mr.Le Merle stated,“I am a trained geographer,geomorphologist,and hydrologist.I have both Masters degrees in that and an MBA from Stanford.” Another speaker Jon Larson,in reference to Mr.Le Merle stated: “We have our own hydrologist who has lived there for 27 years up above the property.PhD, highly qualified,and he’s been working with us as well.”Mr.Larson went on to say,“What the picture shows here,backed by our expert,there’s only 5%buildable on the 10 acres.” While I have already commented on Mr.Le Merle’s lack of qualification to provide professional opinions on soil conditions,ephemeral streams,and special status plants and animals,he had previously only stated that he was a “geographer.” Mr.Le Merle,and others,contend that he is an expert who is qualified to offer professional opinions.I have seen nothing in his resume or work product to support that claim.Additionally, Mr.Le Merle had previously made more than 20 submissions to the Town of Tiburon,and listed his qualifications and experience on a number of those.No where in any of those submissions did he mention that he was a hydrologist. While his resume on LinkedIn shows 38 professional experiences dating back to 1980,none of those are in geology,geomorphology,hydrology (or more importantly geological engineering, geotechnical engineering,biology,botany,or any other earth sciences)(Exhibit 49). His resume lists one license or certification that he has which is in blockchain strategy.His resume does show that he earned a Masters of Geography from Oxford in 1984.So it appears that he is relying on the degree he obtained nearly 40 years ago in geography for his qualification to offer a professional opinion on the soil conditions on my site,the status and location of water features on my site,as well as the presence of special status plants and animals on my site (Exhibit 29).His resume says nothing about a PhD as was claimed,nor does it mention a Masters in Hydrology which he said he had.While he mentions Stanford as if it’s relevant to his expertise,he obtained an MBA from Stanford,which is not relevant to his opinions on soil conditions,water features,or special status plants and animals on my property. Mr.Le Merle has also been endorsed on LinkedIn for 48 different skills (Exhibit 48).He has numerous “endorsements”for all of his listed skills.Notably absent from his list of skills is anything to do with geography,geomorphology,hydrology,biology,botany,land use,planning, geology,or anything else even remotely related to the opinions Mr.Le Merle is trying to say are from someone qualified to give a professional opinion.While he is entitled to provide his opinion as a local resident,he is not qualified to offer a professional opinion as he claims. I have attached Mr.Le Merle’s LinkedIn resume that was printed out on August 24th,2023 for your reference (Exhibit 30). Mr.Le Merle also stated at the Planning Commission meeting,“It’s an error.This site (in reference to Site H)does not qualify as buildable.”To further reinforce his point,Mr.Le Merle continued,“Site H is 0%developable.” Mr.Le Merle would have you believe that he is a qualified expert.Further,he wants you to accept his expert opinion that my nearly 10 acre property that is surrounded by housing of various densities can not be developed at all.He appears to have reached his conclusions by locating documents on the internet that support his position and applying what they said about the general area or other areas to my site specifically.He has also chosen to disregard all the evidence that does not support his opinion. Nowhere is this more apparent than in his opinions of Site J,which he believes to be easily developable despite the absence of any professional studies.Even the maps he provides show more streams and more landslide debris than are shown on my site.He does not seem to feel those issues would be a concern at Site J. There have been site specific studies done by reputable and qualified professionals that document the actual conditions on my property.These reports,done by experts,contradict nearly every claim made by Mr.Le Merle,and others,regarding my property. I submitted two letters ahead of the August 23,2023 Planning Commission meeting that addressed most of the other recent allegations made by Mr.Le Merle.These comments are attached as Exhibits 50 and 51. 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…1/9 Eric Crandall <fieldoneeric@gmail.com> Discussion... 9 messages Cynthia Massey-Kim <cynslim@gmail.com>Sat, Mar 21, 2020 at 5:00 PM To: Eric Crandall <Eric@fieldonepaintball.com> Hi Eric, I hope you and your family are well, safe and healthy during this unprecedented and very uncertain time. I am writing you today to discuss a few things regarding our property line. I know you have already been in several exchanges with my husband, but I feel that we need to have a more definitive conversation, so that we are all clear and on the same page. Up until this point, things have been a bit vague. We invited you and your family over to our home to meet and hopefully get to know you, as we will be permanent neighbors. Our hope has been and still remains to be cordial throughout this process. But I'm going to be completely honest with you- since our first meeting, we have not once received acknowledgement nor have you asked for permission to access the water through our property. In no way do we want to prevent you to enjoy your property, nor do we have a "say" in what you do on your land. I also recognize that with young children, accessing the water can become a favorite past-time. However, without acknowledgement, you and your family have continued to spend time on our side of the property line/beach without permission. This bothers me, because essentially the beach is an extension of our backyard, which we paid for when we bought this house... hence the reason for the survey to be done before our close. Please look at it from our point of view. There have been many times we look in our backyard and see you, a stranger, or your family on our beach side. I feel as though it is now imperative we have a dialogue about this. James knows I am contacting you - however, I am also the owner of this house and have not been included in previous conversations due to kids' schedules. The situation would have panned out differently if common courtesy and etiquette were initially delivered when you came to our home. Both you and your wife inferred in separate conversations that the beach was yours. I hope to get this resolved so that everyone is on the same page. Clearly the world is a mess right now, but if we need to request the surveyor to come back (when things settle), we will arrange that so he can clearly mark with stakes our boundaries. Unfortunately we were out of town when Larry and his team were here. Let me be clear, my point is not to prevent you from accessing the beach, but merely for your acknowledgement and understanding that you are on our property when you access the beach and water when it is NOT high tide. In a normal situation, that is technically trespassing. Please let me know if you are available to speak - we can meet by the water. Thanks, Cynthia Eric Crandall <Eric@fieldonepaintball.com>Sat, Mar 21, 2020 at 9:32 PM To: Cynthia Massey-Kim <cynslim@gmail.com> Cynthia, 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…2/9 Thanks for reaching out. Everyone here is good, and we're managing alright so far during this interesting time. I had planned to connect with James and you since I was down near the beach spraying poison oak today, and I wanted to let you know that the spray was just a mix of hot water, salt, vinegar, and dish soap and not Round Up or anything like that. I only sprayed on our property, but I know how sensitive people are to the use of chemicals, so I wanted to let you know. We also wanted to check in and make sure things were ok with your family, and to let you know that we’re pretty well stocked, so if there’s something you don’t have or can’t find let us know and maybe we can help. Our girls ask about Eli and Ellie often, so maybe the kids can get together whenever things get back to normal. Hopefully the two of you and the kids are hanging in there. I know our girls are taking it well since at their age everything is fun, and I hope your kids are the same. I'm glad you are reaching out with your concerns so we can try and get everyone on the same page. I'd hate for you to have issues with what we were doing and be upset with us and not say anything. Property lines can certainly create issues between neighbors, and I don't want that to happen with us. We do want to be good neighbors, and like you, we plan to be here for many years so it makes sense to get things worked out. Before I get into specifics, let me start by saying that I’m extremely sorry that you feel that my wife and I did not treat your family with common courtesy and etiquette when you graciously invited us over. We enjoyed meeting your family, and we appreciated your hospitality. We were excited that our kids were around the same ages and that they got along so well. We enjoyed your company, and stayed far longer than we had intended because us and the kids were both having a good time. I can assure you that we did not mean to offend you in any way. It was and is our understanding that the beach is shared, and if that is incorrect, or if we said something that made it sound like that was not the case, I sincerely apologize. I’m sorry that you don’t feel that we are respecting your property rights as that is not our intention. We should try to reach a mutual understanding so that neither of us is upsetting the other one unintentionally. That was why I had reached out to James previously, and met him on the beach so we could both look at the survey and see where the property line is. In my mind the property boundary situation had been settled definitively, but if you don't feel that way, it must not be. Regarding us being on your property, I do know we are on your property when we go to the water and the tide is below the ordinary high tide line. We are also on your property when we put the kayak in the water. We appreciate you allowing us to be on your property when we go down to the beach to throw rocks or go kayaking. I believe James had mentioned that he had no issue with us crossing your property and accessing the water. I think I had told him when we met on the beach that while beaches and water can be private property, in California the shoreline is public and people can walk along the shoreline across private property so our shared beach is truly shared regardless of where the property line is since we both have some of it. I can understand that you wouldn’t like seeing strangers on your beach, and I can certainly appreciate that. I’m hopeful that we can get to the point where you can tolerate seeing your neighbors on our shared beach from time to time. Also, if there is something specific we are doing that is particularly troubling to you, please let us know so that we can try not to do it. After the survey was completed I was able to meet with the surveyor on site and ask him questions to get a better understanding of things. I understand that James and you did not get that opportunity. If you’re curious where the property line is based on the survey that was done, the surveyor explained that there is a way to tell without having him come back out. I believe that James is aware of this as well, but there is a stake with blue and white ribbons on it to the right if you were looking towards my property from your house. When the water is at that stake, where the water is everywhere else is our property line. I’ve been looking at the tide related to the surveyor stake myself to try and see about where it is. When we were down there today, the tide was just above that mark when we went down there, and just below that mark when we left. I only mention that because if you remember where the water was this morning when we were down there, that is about where the property line is. I’ve attached some photos I took this morning that shows the water at what 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…3/9 I believe is the approximate property line within a foot or two based on the survey and the surveyor stakes. As James and I discussed, I’m not sure how much of a difference it makes where the property line actually is since the beach is shared and shorelines are public. As you know, I am not a land use attorney, but I do feel I have a pretty good understanding of how things work regarding the shoreline and water. The property we moved from down the street had a shoreline lot with a beach that extended about 1000 feet out into the water, so I was already familiar with this type of situation, although ours is slightly different. While I am confident that what I’m telling you is correct, I would suggest that you do your own research. You could certainly consult with a land use attorney, but I think you can probably get answers at no cost from the surveyor and the internet. This link has a lot of relevant information: https://www.portsanluis.com/DocumentCenter/View/2947/State-Lands- Commission---Draft-Public-Access-Guide Here’s what I think I know about our property lines and water access. -The survey that was done confirmed that the property line is the ordinary high tide line. They put a stake in, and when the water hits that stake, that is where the property line is legally. James and I looked at where that is on the beach, but it’s hard to visualize it without being down there. What that means is that at ordinary high tide, all the beach is ours, and all the water is yours. At a higher tide, we have the beach and some water and at a lower tide, some of the beach is ours, and the rest is yours along with the water. -In California (and most states) the beach up to the mean high tide line is public. This is part of the California Coastal Act which was enacted in 1976. This means someone can walk along the shoreline anywhere in California and not be trespassing. Now they have to be able to access the beach legally in which to do that (they can’t trespass on your property to get to the beach). What this means for us is that our beach is shared, not only with each other, but with anyone that is walking along the beach. Anyone can go on it anytime they want. Someone would be trespassing if they went on your side of the property above the high tide line, and the same would be true for someone on my side. But as long as they stay on the beach they would have a legal right to be there. Now of course given the location of our beach, we don’t have to worry too much about anyone else. But legally someone could kayak over and hang out on the beach as long as they stayed on the beach. -While your lot extends across the bay, as do most other lots in Paradise Cay and along Paradise Drive, the waters are also public, and can be crossed by anyone. As I mentioned, we owned a lot out into the water at our old place and boats, kayakers, paddle boarders, swimmers, etc had the right to cross it whenever they pleased. Supposing everything I've said is correct, and we are legally allowed to be on the beach and access the water, we still want to be good neighbors. If there is something we’re doing that is preventing you from enjoying your home, and we can do something differently, we are willing to explore that. I’d love to meet in person to talk, as sometimes things don’t come across the way they are intended via email. My hope in giving you this information is not to tell you that we're right and that's the end of it. I simply want to let you know what I think and why so that you can look into it before we talk. Hopefully that will allow us to have a more meaningful conversation. I should be available most afternoons to meet down at the water. Let me know when you’d like to do that, and hopefully we figure things out. I look forward to talking to you soon. Thanks, Eric 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…4/9 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…5/9 [Quoted text hidden] 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…6/9 Cynthia Massey-Kim <cynslim@gmail.com>Sat, Mar 21, 2020 at 10:26 PM To: Eric Crandall <eric@fieldonepaintball.com> Hi Eric, Thanks for your email. We can definitely discuss this further because I agree, things can be misconstrued over email. I appreciate you sending me all the information in regards to the CA Coastal Act of 1976. I understand your thought process, but I believe we both can agree that this beach is not open to the public. Referencing Part C of 30001.5 - "Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners." There is no public access from your land nor mine. Furthermore, yes Paradise Cay is an exception with water and private dock access. I'm pretty sure no random boater will dock their boat on someone's dock or beach without permission. I do not want to have a property war with you, but I'm happy to meet with a land/property lawyer if need be to define distinctly what is ours vs yours. I do not believe we are on the same page regarding the beach and borders. We too have taken many photos of low tide vs high tide in support of the our surveyor's findings, also capturing the stake with blue and white ribbon. I know you met with James weeks ago to discuss this. But I can assure you, after viewing your photos from today, our points of views are not aligned. I mentioned in my previous email that all this could have been handled differently. Though you admitted you were on our property today to access the beach/water with your kayak, you seem to be missing the main point. I'm also sending you photos from a bird's eye view, which captures the high tide/boundary lines. Happy to meet this week by the water. Please let me know your availability. Thanks, Cynthia [Quoted text hidden] -- Cynthia Massey-Kim cynslim@gmail.com Property.HighTide.jpg 488K Eric Crandall <Eric@fieldonepaintball.com>Sun, Mar 22, 2020 at 2:04 PM To: Cynthia Massey-Kim <cynslim@gmail.com> Cynthia, 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…7/9 When you mention that this could be handled differently, please let me know how you would like us to handle using the beach. We want to be good neighbors, so please let us know what you would like us to do. Until you emailed yesterday, We had no idea you were unhappy with us going down to the beach occasionally to throw rocks or launch our kayak. If you agree that our property line is the ordinary high tide line as confirmed and marked but the surveyor, then I think we are on the same page, as least as far as that goes. There is a "line" formed when the water reaches that stake, and I understand that is my property line wherever that is. If we agree on that, that's an important starting point. It sounds like there may be an issue with each of our interpretations of the boundary and shoreline laws, as well as expectations. Having grown up here on a property with shoreline, I certainly have an engrained perspective that has been formed over many years and experiences. Hopefully when we meet I can get a better understanding of your feelings regarding the shoreline and how you would like things to work. As I said, regardless of what rights we may or may not have, if there are things we can do to be better neighbors, we would like to hear what those are. Take a look at the following links from the California State Lands Commission that address shorelines, tidelands, etc. If you did not know, the part of your property that runs from the high tide line on your side to the high tide line on my side is considered "tidelands". https://www.slc.ca.gov/laws-regulations/civil-government-code/ https://www.slc.ca.gov/laws-regulations/applicable-provisions-from-the-california-constitution/ https://www.slc.ca.gov/public-engagement/#pubaccess https://www.slc.ca.gov/land-types/tidelands/ I can be available any afternoon after 3pm this week. If that works for you let me know what day you'd like to get together. If that doesn't work, I can be flexible and make another time happen. Thank you, Eric [Quoted text hidden] Cynthia Massey-Kim <cynslim@gmail.com>Sun, Mar 22, 2020 at 3:37 PM To: Eric Crandall <eric@fieldonepaintball.com> Hi Eric, Yes, you are correct, I emailed yesterday to let you know that accessing our property without permission has become an issue, more so because I have seen you and strangers on our side of the property. But I am reaching out to you now. I do prefer to meet by the water to discuss further. Let me know if either Monday or Tuesday at 3pm works for you. As you are aware, per the surveyor and the county records, our property boundaries are defined by the "mean high tide water at an elevation of 5.3m, indicated by the stake. Your photo from yesterday is not indicative of that boundary. If we cannot agree on this definitive boundary, I can call on the surveyor and the county again. Thanks for taking the time to send the links. Interesting enough, the public trust doctrine that oversees all shoreline rules (that you sent) highlights "preserving lands in their natural state in order to protect scenic and wildlife habitat values." That being said, I am certain we can agree on that the number of trees bordering the shoreline have disappeared, per your previous email directed to my husband only (in regards to Bill). We have lived here for almost a year now, and the natural habitat and wildlife has significantly changed. Also, in case you weren't aware, under the County Code of Ordinance, any work that uses heavy machinery or exerts loud disturbances/noise requires a permit on weekends. I am aware we cannot control what you do on your land, however today is Sunday, and as you know the State of CA is under lockdown. We are not the only ones that disapproved of the noise today. We can further discuss and I can explain what I mean by "handled differently" at the water. Please let me know if Monday or Tuesday works. Thanks. 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…8/9 Cynthia [Quoted text hidden] -- Cynthia Massey-Kim cynslim@gmail.com Eric Crandall <Eric@fieldonepaintball.com>Sun, Mar 22, 2020 at 3:55 PM To: Cynthia Massey-Kim <cynslim@gmail.com> Cynthia, Tomorrow at 3pm works for me. I look forward to speaking to you then. Regarding the photo I sent yesterday, I did not take that at the exact time the stake so I do not think that photo represents exactly where the property line is. Should we wish to find that line, I believe that we can as it’s a fairly straightforward thing. When the water hits the stake, we see the property line. See you tomorrow. Thanks, Eric [Quoted text hidden] -- Thank you, Eric Crandall Field One Paintball (415) 324-4050 main line (415) 324-4052 direct line (415) 324-4051 fax Cynthia Massey-Kim <cynslim@gmail.com>Sun, Mar 22, 2020 at 4:02 PM To: Eric Crandall <Eric@fieldonepaintball.com> Hi Eric, 3pm tomorrow works out great. Below is what you wrote in your email yesterday regarding what you thought was the approximate property line, which is why you sent the photo correct? In any case, looking forward to our chat tomorrow. Hopefully we can resolve this asap. Thanks, Cynthia When we were down there today, the tide was just above that mark when we went down there, and just below that mark when we left. I only mention that because if you remember where the water was this morning when we were down there, that is about where the property line is. I’ve attached some photos I took this morning that shows the water at what I believe is the approximate property line within a foot or two based on the survey and the surveyor stakes. [Quoted text hidden] -- Cynthia Massey-Kim cynslim@gmail.com Cynthia Massey-Kim <cynslim@gmail.com>Mon, Mar 23, 2020 at 9:07 AM 3/14/23, 4:36 PM Gmail - Discussion... https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f%3A1661820193059293766&simpl=msg-f%3A1661820193…9/9 To: Eric Crandall <eric@fieldonepaintball.com> Good morning Eric, Unfortunately, I actually cannot meet today at 3pm. Please let me know what your availability looks like later in the week. Otherwise will be in touch. Be safe this week. Thanks, Cynthia [Quoted text hidden] -- Cynthia Massey-Kim cynslim@gmail.com Eric Crandall <Eric@fieldonepaintball.com>Mon, Mar 23, 2020 at 9:40 AM To: Cynthia Massey-Kim <cynslim@gmail.com> No problem. I should be available any afternoon this week. Let me know what works for you, and I'll make it happen. Talk to you soon. Thank you, Eric Crandall Field One Paintball (415) 324-4050 main line (415) 324-4052 direct line (415) 324-4051 fax [Quoted text hidden] LAND LAW LLP 1010 B Street, Suite 200 San Rafael, CA 94901 T. 415.483.0050 E. chris@landlawllp.com www.landlawllp.com July 14, 2020 SENT VIA EMAIL ONLY (eric@fieldonepaintball.com) Sierra Pines Group LLC c/o Eric Crandall P.O. Box 37 Corte Madera, CA 94976 RE: 103 Trinidad Drive & 4576 Paradise Drive Boundary Dispute Mr. Crandall: Our office represents your neighbors at 103 Trinidad Drive, James and Cynthia Massey-Kim. The purpose of this letter is to clarify a fundamental disagreement regarding the common boundary between the two properties as well as provide notice of objections to continued tree removal and other drainage/grading improvements in and around the common boundary area. I do not have answers to resolve the conflicting interpretation of the boundary at this time but am sharing the below information to enlighten you as to my position on the issue. Boundary Dispute The common east-west boundary between my clients’ property and your property is presently undetermined. I appreciate that surveyor Larry Stevens drafted a preliminary boundary survey in late February. That survey has not yet been recorded with the County. Beyond this procedural issue, the survey is ripe with technical inaccuracies and potentially misguided conclusions resulting in substantive problems. Accordingly, you are not entitled to rely on that preliminary boundary survey document for any purpose, including: trespass onto my client’s property, tree removal, or drainage improvements. To be clear, my client’s property is defined by the 1979 subdivision map (17 RM 86) on record with the County and extends to the meander line, which is the same as the Rancho Corte Madera Del Presidio line. Not coincidentally, the meander line is the same callout as the metes and bounds that describes your property’s legal boundary. Paradise Cay was subdivided and artificially created in the 1950s and further extended and developed in the 1970s. My client’s property, Lot 107 of the above referenced map, was created during the 1970s phased construction. Their property boundary was established based on that 1979 subdivision map and corresponding legal description. Any complaint or objections to the creation of their property that fixed the location of its boundary lines should have been raised at that time, not 40 years later after all parties have detrimentally relied on the established boundaries. To further emphasize this point, my client’s property has been consistently taxed by the assessor’s office based on the legal description from the subdivision map, which is reflected in the assessor’s parcel 2 of 3 map mirroring the lot dimensions of the 1979 subdivision map. Lastly, your predecessor in interest attempted to negotiate a lot line adjustment to acquire the land that appears to now be in controversy, revealing that it had not been used nor was there an intention to occupy it prior to reaching an agreement with the adjoining neighbors. Accordingly, there are various legal theories for confirming that my clients’ property is defined by the dimensions of the subdivision map, which aligns with the meander line. I appreciate the concept of the Public Trust Doctrine and have observed your reliance on it to confirm your right of access to the Bay for recreation purposes. That legal doctrine may not be applicable under these circumstances. However, even it is does apply, it would only entitle you to access the Bay on the southern half of the common boundary with my clients’ property since the location of the ordinary high tide line depicted on Larry Stevens preliminary boundary survey is inboard of the meander line; said another way, there is private property owned by my clients located upland of the ordinary high tide line on the northern half of the common boundary that you do not have a right to trespass over. I believe this portion of “upland” property is commonly characterized as the beach area. I respectfully request that you refrain from any continued use of this area pending resolution of the boundary disagreement. Continued use will be subject you to claims of trespass. The use of the beach area is particularly sensitive since my clients’ have a reasonable expectation of privacy that has continuously been violated by you and your invitees trespassing in and around this area. In fact, this past week, my client believes she made direct eye contact with one of two strangers occupying the beach area in the “upland” portion of property immediately after she existed her shower. This instance demonstrates the violation of common decency and reasonable expectations of privacy for my clients. This experience further reinforces the unique need to retain the shoreline vegetation and enhance it wherever possible. I understand that you will likely disagree with my opinion and the conclusions presented above. I remain open to understanding your point of view and welcome you to share objective facts prepared by a third-party qualified professional that may support an alternative conclusion. Tree Removal and Drainage Improvements The substantial tree removal on your property over the past few months is detrimental for both my clients’ privacy as well as the local environment. Yet, I am informed and understand your work is justifiably excused from remediation under the County Code’s tree removal process. I received a copy of your “planned work adjacent to Paradise Cay” document. Based on the information in that packet, it appears that the tree removal along the Bay may require a tree removal permit from the County. More importantly, the work contemplated in your packet falls within the jurisdiction and discretionary review of BCDC, which has jurisdiction over County of Marin as the regional planning agency. BCDC regulates all work within 3 of 3 100 feet of the ordinary high tide line. Accordingly, please consider this notice to obtain all required permits and approvals from both the County and BCDC prior to commencing any of the work identified in your packet. I am also informed that you have graded an artificial drainage channel that cuts through my clients’ property and terminates into the Bay. Below is a photo for your reference. This artificially created drainage way is unreasonably directing water onto my clients’ property and more likely than not directing sediment directly into the Bay. This condition must be remediated so that you manage your drainage on your own property and avoid further degradation of the natural environs and erosion of my clients land. Along these same lines, my clients have observed you spraying (chemicals?) along the common boundary in close proximity to the Bay. I presume this was weed killer to destroy poison oak. Please refrain from any future spraying on or around my clients’ property or directly adjacent to the Bay. Coincidentally, as a logical bridge between the two issues identified in this letter, my clients commissioned a topographic survey of their property. This work is expected to reveal substantive features, like significant trees, along their property. Unless you have your own independent report(s) confirming the location of landscape conditions on your property, please refrain from performing any further work that may adversely impact my clients’ property. I welcome the opportunity to speak with you or your legal counsel regarding the above referenced issues and looking forward to working toward a resolution in the near future. Respectfully, Chris Skelton On 2 Jul 2020, at 1:38 PM, Yattaw, Erin <EYattaw@marincounty.org> wrote: Hello James, I completed my inspection and just sent an email to the property owner today summarizing the inspection and my findings . I have copy-pasted my email correspondence to him below. Thank you for your ongoing patience during this investigation. I met with you onsite to inspect the property on June 19, 2020. When I arrived onsite, you provided me with a copy of an arborist report by arborist, Sean McLaird, of ArborWorks from March 2019. The arborist indicated you requested this report because you intended to perform significant tree removal on the property and you wanted to identify Protected or Heritage trees as well as any trees that were sick, dead, or presented a potential hazard. You directed the arborist to inspect an area of the property between the existing residences/driveway and the bay. The arborist identified a total of 41 trees in the specified area that were species included on the County of Marin Protected and Heritage tree list. The arborist provided a map of those trees as well as a numbered list of types and sizes of the trees that corresponded with the map and indicated if the trees were Protected or Heritage. Based on the list, 17 of the trees qualify as Protected, 5 of the trees qualify as Heritage and the other 19 trees were neither. Based on the complaint received by Code Enforcement, I concentrated on inspecting the property lines and the area that the arborist report accounted for and where an significant amount of trees had apparently been removed. I did not observe evidence of tree removal along the side property lines or the rear property line along the bay. I did observe some discarded tree limbs along the front property line near where a brand new power pole had been installed. PG&E did provide me with confirmation that they had performed work on your property and it did not appear that any trees were removed, just trimmed. Once I completed my inspection of the property lines, I focused on the area where the arborist had inspected and where you had obviously performed significant clearing. You acknowledged that you likely cleared at least 50 trees in that area since the arborist had performed his inspection. You informed me that you had cut down a total of 16 trees from the list and indicated which ones. 15 were trees that did not qualify as Heritage or Protected and you cut down one Protected tree, a 16” Oak tree. I proceeded to inspect the area and utilized the arborist’s map. I effectively verified that the remaining 25 trees from the list remained intact on the property. As you are aware, you may cut down two Protected trees in a 12-month period. My inspection verified you cut down one Protected tree since March 2019. My inspection uncovered no evidence that you cut down additional Protected trees or any Heritage trees. While you have removed a notable amount of trees and obviously cleared a portion of the property, this does not violate the Marin County Code if you have not cut down more than two Protected trees in a 12-month period or one Heritage tree at any point in time. As such, there was no evidence of a violation found and no cause to require a retroactive Tree Removal permit. I will be closing this case accordingly and you will not be charged a fee for my time. Best regards, Erin Yattaw CODE COMPLIANCE SPECIALIST County of Marin Community Development Agency 3501 Civic Center Drive, Suite 308 San Rafael, CA 94903 415 473 3535 T eyattaw@marincounty.org <image001.png> From:eric94920@aol.com, To:contactboard@paradisecay.org, Subject:Grievance Committee Date:Wed, Jul 15, 2020 3:19 pm Attachments:103trinidadBoundaryLine.PDF (17531K), StateLandsCommissionPublicTrustLetter.pdf (1357K), 4576Paradise.103Trinidad.July8.png (745K) To Whom It May Concern; My name is Eric Crandall and I live at 4576 Paradise Drive with my wife and three young daughters. I am writing to you regarding an issue that occurred on the evening of July 8th with my neighbor James Massey-Kim who lives at 103 Trinidad Drive. I want to start by saying that I appreciate your willingness to look into, and hopefully address the incident that occurred. I’m optimistic that this process will help James and I have a respectful neighbor relationship despite whatever other issues he and his wife may have with me. Unfortunately Cynthia and James Massey-Kim have a problem with our shared boundary line and have chosen to express their displeasure with me in ways other than directly addressing it. At approximately 7pm on July 8th, some family friends were visiting my property and my friend and his mother walked down to the water and were on our beach. They were quietly enjoying themselves when they were confronted by James. He asked them in what was described to me as an “agitated and aggressive manor” what they were doing there. They responded that they were “enjoying the evening”. James continued his hostile behavior and eventually indicated that my guests were on his property. Intimidated, my guests immediately left my beach. I don’t believe that it’s appropriate for neighbors to harass, intimidate, or otherwise interact in an unfriendly way with anyone on my property. His hostility towards my guests was totally unprovoked and he initiated and continued the exchange with them. My guests remained calm and respectful during the exchange but the same can not be said for James. I trust that your HOA will condemn the inexcusable behavior of my neighbor, and hopefully discourage any future occurrences of similar behavior. I think it’s important for you to understand how things are laid out between our two properties, and so I have attached an overhead photo. As you can see, the beach where my guests were is attached to my property and across the water from James Massey-Kim’s house. For scale, it is more than 50 feet from the beach to the edge of their yard, and about 90 feet from the beach to their house. For reference, the houses located at 166 Trinidad and 155 Jamaica are about 105 feet apart across the water from house to house and it’s about 88 feet from shoreline to shoreline. Dock to dock is about 43 feet. How would you feel if your friends walked outside your house and were on your deck having a quiet conversation and your neighbor across the water started harassing them? Unfortunately that is what happened to my friend and his mother. James and Cynthia have done a number of things intended to cause me unnecessary grief which I have tolerated and not responded to. They have previously chosen to glare at us while we’re on the beach to show their unhappiness with us using that part of our property which they consider part of “their backyard”. I have received no less than 5 separate emails asking me to stay off my own property. Thus far I’ve put up with a lot and have chosen to ignore it and take the high road. Unfortunately, I am not willing to let them harass my friends or family and claim we are on their property when we are not. This is my property we are talking about, and what is not my property is part of the State of California Public Trust and available for anyone to use. I would like to point out that we use the beach only occasionally and for short periods of time. We spend less than an hour there a couple days a week when it’s warm out. Here are what I believe are the relevant facts that you should be aware of: -We purchased the property here in April of 2019 -James and Cynthia Massey-Kim purchased their home at the end of February 2020 -I received an email on February 10, 2020 from Cynthia Massey-Kim introducing herself and asking me where I thought my property line was on the waterfront between our two lots since they were considering purchasing the home which they had been renting. I replied the same day that the boundary was the ordinary high tide line which is what it said in my legal description, but that the only way to correctly determine a property boundary was with a survey. -The owners of the property at the time (Osenton Trust) had a boundary survey done by L.A. Stevens & Associates in February of 2020 which was given to the Massey-Kim’s prior to their closing on their home showing the boundary line between our properties was exactly what I had told them on February 10th. The ordinary high tide line as described in my legal description was our legal boundary, and the surveyor showed that on his survey. James provided me with a copy of this survey via email on March 2, 2020. I have attached a copy of the survey to this email. -James and Cynthia seemed unhappy with the results of the survey and repeatedly asked me to stay off the beach as it was their “backyard”. I attempted to diffuse the situation and be non-confrontational but as they continued to contact me on a regular basis after my family and I would go down to the water I eventually told them that we would use our property whenever we wanted. -James and Cynthia also took up the argument that we could not access the water through their property or be on their property (their lot has submerged lands and tidelands that butt up against my property line). I let them know that the California State Constitution, the California State Supreme Court, and the California State Lands Commission all say that the lands below the ordinary high tide line (tidelands and submerged lands) are public and available for anyone to use. I sent them a link to that information on the State Lands Commission website, but continued to get emails voicing their displeasure when we went to the beach. -I contacted the California State Lands Commission regarding our situation looking to get confirmation and/or clarification of the situation. I was cc’d on a May 26, 2020 letter from Andrew Kershen, the California State Lands Commission Attorney, to James and Cynthia confirming and explaining what I had already told them-that the State of California controls all the tidelands and submerged lands and they are part of the Public Trust. I did not hear from James or Cynthia regarding our beach access after that so I had hoped that they had come to the realization that the beach was not their “backyard” as they felt, and that part of it was my property as shown by the survey and whatever wasn’t my property was part of the State of California Public Trust. I have attached a copy of the letter from the State Lands Commission for your review. I suspect that James will say that my guests were on his property and that the survey done by his previous owner is incorrect and that my friends were trespassing. I have heard some of these things before, however I have not seen a single piece of evidence to support these claims. I informed James and Cynthia where our shared boundary line is prior to purchasing their home, and they received a survey confirming that. As I’ve told James and Cynthia, if they are aware of something that shows my legal description or the survey or the State Lands Commission is wrong, I would be happy to review it. It was about a 4.5 foot high tide at the time of the incident and my shoreline boundary is the ordinary high tide which is a 5.3 foot high tide. That means that almost all of the dry land was my property. Unless my guests were standing within a foot or so of the water they were on my property which is technically and legally part of my backyard. Had they been standing very close to the water, they could have been on lands that are part of the Public Trust. James has the survey showing the property line and he received a letter from the State of California explaining the situation with the tidelands. He was and is fully aware that my guests were not on his property, yet he chose to treat them as if they were trespassers wandering through his backyard. I would love to have a friendly relationship with all of my neighbors but that may not be possible in this case. Disagreements happen, and even if we can’t be friendly with each other I think it’s essential for all of the neighbors that we all respect one another. James Massey-Kim’s behavior towards my guests on the evening of July 8th was disrespectful of them, disrespectful of my family and I, and pretends our property boundaries and legal rights don’t exist. I have no expectation that this process will do anything to resolve the perceived boundary issue between our properties, nor am I asking you to do that. The information I provided is so that you may understand what I believe is the source of the hostility towards my family and I, and also so that you may have the facts of the situation available to you. Had my guests opened his gate and walked into his backyard, his interaction with my friends may have been fine. However, while he may feel that they were in his backyard, the fact of the matter is that they were on my property, and in my backyard. Those are the facts of the situation, and given those facts I consider his behavior to be unneighborly and unacceptable. Should you have any questions for me, require any additional information, or wish to hear from my friends, please feel free to contact me. Thank you for your time and consideration. Eric Crandall (415) 250-4434 1 Attached Images 9/12/23, 3:45 PM AOL Mail - Fwd: Lights about:blank 1/6 Fwd: Lights From:Eric Crandall (ericcrandall@aol.com) To:eric94920@aol.com Date:Thursday, October 20, 2022 at 01:18 PM PDT -----Original Message-----From: SCOTT BEAUCHAMP <sbeauchamp@mac.com> To: Eric Crandall <ericcrandall@aol.com>; daniellebraak@gmail.comCc: Toni Beauchamp <tonibchamp@gmail.com> Sent: Thu, Feb 3, 2022 8:59 pmSubject: Re: Lights Eric and Danielle, Your response clearly indicates that you do not intend to remove or turn off your holiday lights although we have politely asked you to do so several times. It is now February 3rd and we have been patient regarding the seasonality of your holiday light enjoyment. Reducing the number of hours that your lights are on does not reduce their disturbance to us, or your other nproperty. As you know, our backyard view faces your property, and the western sky - where the sun sets. As such, if you had shown any concern to ask why your lights are a disturbance, these ar you understand another point of view (literally), and be a more considerate neighbor: The numerous lights in your yard inhibit our ability to enjoy the sunsets that fall behind the hills of your property. The numerous lights in your yard inhibit our ability to watch the nesting birds in the nearby trees.The numerous lights in your yard inhibit our ability even to clearly see the night stars once the sun has set. The above notes are just a few examples of why your colored lights, spread throughout your 9+ acre property, create a circus-like view rather than allowing us to enjoy the beautiful surroour view of the lights are attached, taken on several days, and at different times.) Now that we have contacted you directly and you have disregarded our polite request to turn them off, we are contacting the Town of Tiburon to review and resolve this matter as we beli town ordinance on light pollution. We are also contacting the Town of Tiburon and other legal authorities on other issues and disturbances that we've asked you to rectify to no avail. All factors that negatively affect our daundue stress to our family and neighbors, and prohibit us from enjoying our property and neighborhood. Toni and Scott 9/12/23, 3:45 PM AOL Mail - Fwd: Lights about:blank 2/6 9/12/23, 3:45 PM AOL Mail - Fwd: Lights about:blank 3/6 9/12/23, 3:45 PM AOL Mail - Fwd: Lights about:blank 4/6 9/12/23, 3:45 PM AOL Mail - Fwd: Lights about:blank 5/6 9/12/23, 3:45 PM AOL Mail - Fwd: Lights about:blank 6/6 On Jan 28, 2022, at 9:22 AM, Eric Crandall <ericcrandall@aol.com> wrote: Scott, I'm sorry that my lights upset you and that you feel I'm intentionally trying to annoy you. That is not the case. My kids love the lights, and their excitement and happiness seeing theof the highlights of my day. I'm not sure if you noticed that the lights have started going off much earlier (by 8pm), as after your text messages I've started turning the lights off as sbed. Currently the lights are on for about 2 and a half hours each day. I've had more neighbors than I can count on one hand tell me they love the lights, and love seeing them from their house or when they drive by. Since your text messages, I've alsmultiple houses both on Trinidad and Paradise who also still have their lights on. While various neighbors have asked me politely to do different things, I have accommodated many of those requests, but not all. Some of the requests I feel are over-reaching. Yomany of these, and on some of them, we just have different perspectives. I've sought to mediate differences with multiple neighbors through multiple forums with a hope that perhahelp. Unfortunately, none of those mediation offers have been accepted. I appreciate you reaching out with your request about my lights. In response, I greatly reduced the hours the lights closest to you are on. My hope was that doing so would still allodaily enjoyment from the lights, while minimizing whatever negative impact you are feeling from them being on. Eric 9/12/23, 3:50 PM Gmail - mystery vegetation stain https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f:1707450350110476452&simpl=msg-f:17074503501104764…1/3 Eric Crandall <fieldoneeric@gmail.com> mystery vegetation stain 10 messages Richard Schwach <rickdvm@gmail.com>Sat, Aug 7, 2021 at 8:52 AM To: eric@fieldonepaintball.com Hi Eric We are the Schwachs and live directly across the water from your property at 99 Trinidad Dr. We have live here for 22 years and are now experiencing a very serious vegetation staining problem we have never seen... and we would like to work together with you to help make a diagnosis first and then hopefully a solution. As you have noticed, it has been an exceptionally windy summer and the western winds have been crazy. When they do blow we are in direct line coming from your direction. So what has happened on this side of the water to several neighbors properties is that a rust colored product is sticking to anything it touches and is very difficult to clean and remove. It is hard to identify what it is, but it is everywhere the wind blows. It has covered all our windows, furniture, and paint of the house, and even the flagstone. Our neighbors and our homeowners president Rich Colonno have commented how it has stuck to our entry gate of Timmers Landing and is difficult to clean off. I told him I would reach out to you. We would like to invite you over to our house to help us determine what may be the issue and work together to solve it. Are you available Sunday for a quick get together and check it out? We really need your help and input in solving this mystery. Thanks Eric Best, Rick and Julie Schwach Richard Schwach <rickdvm@gmail.com>Sat, Aug 7, 2021 at 8:54 AM To: eric@fieldonepaintball.com Forgot to give cell number…415-298-3451 Rick [Quoted text hidden] Eric Crandall <Eric@fieldonepaintball.com>Sat, Aug 7, 2021 at 9:32 AM To: Richard Schwach <rickdvm@gmail.com> Rick, I’d be happy to come by Sunday and take a look. I’m not sure how much help I can be, but I’m happy to come take a look and maybe we can figure it out together. Let me know what time Sunday works for you. Thanks, Eric (415) 250-4434 [Quoted text hidden] -- Thank you, 9/12/23, 3:50 PM Gmail - mystery vegetation stain https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f:1707450350110476452&simpl=msg-f:17074503501104764…2/3 Eric Crandall Field One Paintball (415) 324-4050 main line (415) 324-4052 direct line (415) 324-4051 fax Richard Schwach <rickdvm@gmail.com>Sat, Aug 7, 2021 at 7:09 PM To: Eric Crandall <Eric@fieldonepaintball.com> How about 11am? Does that work for you? [Quoted text hidden] Eric Crandall <Eric@fieldonepaintball.com>Sat, Aug 7, 2021 at 7:10 PM To: Richard Schwach <rickdvm@gmail.com> 11am is fine. Should I meet you at your house? Thanks, Eric [Quoted text hidden] Richard Schwach <rickdvm@gmail.com>Sat, Aug 7, 2021 at 7:11 PM To: Eric Crandall <Eric@fieldonepaintball.com> Yes Come on by 99 trinidad [Quoted text hidden] Eric Crandall <Eric@fieldonepaintball.com>Sat, Aug 7, 2021 at 7:12 PM To: Richard Schwach <rickdvm@gmail.com> Sounds good. See you tomorrow at 11. Thanks, Eric [Quoted text hidden] Eric Crandall <Eric@fieldonepaintball.com>Thu, Aug 12, 2021 at 12:16 PM To: Richard Schwach <rickdvm@gmail.com> Rick, I'm sorry that you felt like I wasn't responsive enough. I tried to respond quickly and made a genuine effort to try and determine what the issue was by inviting you to my property. I had reached out to my arborist and bee keeper as I told you I would. Unfortunately it appears my efforts were not satisfactory and you and the other neighbors have decided to try and resolve your issues through other means. Thank you, Eric Crandall Field One Paintball (415) 324-4050 main line (415) 324-4052 direct line (415) 324-4051 fax [Quoted text hidden] 9/12/23, 3:50 PM Gmail - mystery vegetation stain https://mail.google.com/mail/u/0/?ik=5466e838e5&view=pt&search=all&permthid=thread-f:1707450350110476452&simpl=msg-f:17074503501104764…3/3 Richard Schwach <rickdvm@gmail.com>Thu, Aug 12, 2021 at 5:38 PM To: Eric Crandall <Eric@fieldonepaintball.com> Eric, There was no response Eric. It has 100% accurately been determined that the destruction to our property and the property of our neighbors is directly associated with the massive number of bees you have decided to keep on a property zoned “residential” . “Reaching Out” to an arborist or bee person does not get it done. I don’t want to wait for your peoples opinions because we already have the answer. Its your swarms of bees flying between my neighbors pollinating trees and your stack of hives you casually mentioned when we visited Sunday. Your bees are attempting to set up several hives on our street in search of water. In one of the locations the lady is so allergic that she needs to carry an Epi pen with her in case she gets bit. The children down the street are terrified to go out in their back yard because the bees are swarming and looking to set up residence. The bee feces does not even come off at the carwash and it is covering all of our cars! I opened my hot tub two days ago and there were 50 dead bees floating. Unacceptable! I am making you aware of the severe negative impact your bee colony is having on our daily lives. It is terrible and unprecedented in this dense residential neighborhood! We should not have to be worried about being stung in our back yards and spend hours scraping the bee shit off our windows. You need to take responsibility for the situation you personally have created. Being a bee hobbyist, I am sure you did not expect all of this negative bee behavior to the magnitude that it has climbed to…but it is now time for you to address the serious and ongoing issues they have created and remove them from your property. Just moving them around your lot is not going to solve these issues at all. They need to be moved to open space zoned “agricultural”…try Petaluma perhaps You have mentioned that you wanted to be a "good neighbor” in previous emails to the group. In light of how furious the people of this street are with the bees, roosters and cows, it would be a really good time to show that you even care about the neighbors around you. Now that you have been made aware of the magnitude of issues you have created it is time for you to personally reflect and make these issues go away so we can all go back to normal life as we have known it. Your efforts and action going forward will be sincerely appreciated by all affected. Sincerely, Rick [Quoted text hidden] Eric Crandall <Eric@fieldonepaintball.com>Fri, Aug 13, 2021 at 11:21 AM To: Eric Crandall <eric94920@aol.com> Thank you, Eric Crandall Field One Paintball (415) 324-4050 main line (415) 324-4052 direct line (415) 324-4051 fax [Quoted text hidden] 9/12/23, 3:53 PM AOL Mail - Re: Recorded Boundary Survey about:blank 1/1 Re: Recorded Boundary Survey From:Richard Schwach (rickdvm@gmail.com) To:eric94920@aol.com Date:Friday, July 29, 2022 at 03:38 PM PDT Eric, Thank you for the well wishes for our summer. I wish we were enjoying it like we used to be able to at our home here for 22 years. But because of the location and quantity of your bees, we are constantly having to wash windows and clean anything outdoors like we never have had to do in our time here in Paradise Cay! You offered to move the hives to a more remote area on your property to perhaps change the daily flight path they are using. Would you please consider honoring that request by all of us that are seriously being impacted by the excrement on our property. One additional serious consequence of the bee excrement is the unprecedented invasions of ants because of the honey content. If you were to help out with this resolvable issue it definitely would allow us to be enjoying this summer more than we are! Thank you for the survey Rick Schwach > On Jul 29, 2022, at 1:03 PM, Eric Crandall <eric94920@aol.com> wrote: > > Rick, > > I hope you're enjoying your summer. > > Attached is a copy of our recorded boundary survey for your records. > > Thanks, > > Eric Crandall > <RS2021-198-all.pdf> February 7, 2022 1 California Department of Fish and Wildlife (CDFW) Site Visit to 4576 Paradise Drive, Tiburon CDFW Staff: Amanda Culpepper, Environmental Scientist Jerrad Swaney, Game Warden Date: February 1, 2022 Location and Site Description The site visit occurred at 4576 Paradise Drive, Tiburon, CA 94920. The Assessor’s Parcel Number is 038-142-02. The parcel is approximately at Latitude 37.90876°N, Longitude 122.47753°W (Attachment 1). The property is 10 acres and includes San Francisco Bay shoreline. Two drainages (also referred to as streams or channels in this document) were observed on the property. The southern drainage is experiencing incision and portions of the channel were lined with brick, especially closer to the shoreline. Water was present in the southern drainage. The northern drainage was less defined and did not hold water. The property is dominated by eucalyptus trees (Eucalyptus sp.) and other non-native species. Purpose of Site Visit CDFW has received complaints about land alteration and tree removal at 4576 Paradise Road. CDFW staff visited the property to investigate potential violations of Fish and Game Code. Observations at the Site CDFW staff walked the southern drainage from its mouth at San Francisco Bay upstream approximately 425 feet, adjacent to the residence on the property. Close to the bay, the stream is experiencing incision and has a large number of bricks within the banks and streambed (Attachment 2: Photos 1, 2, and 3). The homeowners informed CDFW that the property contains a historic brick kiln and bricks are present throughout the parcel and along the shoreline. A small wooden structure with metal roof, approximately 6 feet wide and 8 feet long, was constructed on the shore and is immediately adjacent to the southern drainage (Attachment 2: Photo 4). Upstream fewer bricks are present and the channel transitions to a forested area (Attachment 2: Photo 5). Near the house, eucalyptus trees have been cut from near the bank of the drainage and vegetative debris litters the channel. Eucalyptus trunks have been placed in the drainage forming an informal stream crossing. Additional eucalyptus trees are marked for removal due to concerns about defensible space, safety, and a desire to receive more sunlight (Attachment 2: Photos 6 and 7). February 7, 2022 2 The northern drainage is less defined but still forms a channel that flows to the bay (Attachment 2: Photo 8). Eucalyptus trees adjacent to the northern drainage are flagged for removal and the Town of Tiburon is currently considering a tree removal permit application to approve removal of these trees. Vegetative debris from previous tree removal is present in the channel (Attachment 2: Photo 9). CDFW Recommendations 1. Prior to tree removal at the northern drainage, CDFW should be notified of Lake or Streambed Alteration. The project proponent should register for an online account in CDFW’s Environmental Permit Information Management System (EPIMS) and submit a notification, listed as Region 3 “Notify for Standard Agreement (Cannabis and non-Cannabis)” in EPIMS and appropriate fee, prior to removing any trees. Information included in the notification should identify species and diameter at breast height of all stream-side trees to be removed, erosion control measures that will be implemented during tree removal, tree replacement with native species, access plans and work plans for tree removal, and any other relevant information. 2. Coordinate with CDFW as you work with the Bay Conservation and Development Commission (BCDC) to address the shoreline issues and associated southern drainage. CDFW would like to see restoration of the channel to address the incision and removal of the bricks present in the channel. This could entail widening the channel and planting with native species appropriate to the site. In addition, the small structure should be removed from its current location adjacent to the channel. This work should also address the eucalyptus trunks and vegetative debris currently in the upstream reach of the southern drainage. Additional tree removal and potentially a pedestrian bridge could be included in this project. All this work would require a notification to CDFW for Lake or Streambed Alteration, as described above. 9/12/23, 4:05 PM AOL Mail - Re: Sierra Pines' Boundaries with Paradise Cay Neighbors about:blank 1/3 Re: Sierra Pines' Boundaries with Paradise Cay Neighbors From:Racheal Turner (rachealturner@yahoo.com) To:eric94920@aol.com Cc:natasha_christophersalon@yahoo.com Date:Wednesday, January 13, 2021 at 09:55 AM PST Hi Eric, Here's some additional info from the Fidelity attorney concerning the Sierra Pines deed, which I inadvertently omitted from my email yesterday. The "point of beginning" is first described as being somewhere on the line of the OHT as it was shown in the 1872 map. That could be any point on that line, so the description follows up by specifying where on the line we're asked to actually begin. That point is exactly 1679.73 feet north and 1610.28 feet East from the corner of the California City Tract. In this way, the reference to the OHT isn't to set the OHT as the entire boundary, but to inform the reader where the line is that the more specific point of beginning can be found. Thanks, Racheal On Tuesday, January 12, 2021, 03:48:14 PM PST, Racheal Turner <rachealturner@yahoo.com> wrote: Hi Eric, Thank you very much for your quick response. I'm glad we share an interest in resolving this boundary dispute as amicably as possible and without finger pointing. Please do let me know your thoughts once you've had a chance to digest what we've sent you. Thanks for the background on the hearing. I believe many of the neighbors will be on the Zoom. Thanks, Racheal On Tuesday, January 12, 2021, 02:58:21 PM PST, Eric Crandall <eric94920@aol.com> wrote: Racheal, Thanks for sending this information over. I have no interest in "shooting the messenger" and fully understand that any boundary issues that may exist are not a personal issue between you and I, or I and the Minty's (or anyone else for that matter). You have done nothing wrong, just as I have done nothing wrong, nor have the Minty's. I think if we move forward with that perspective, we are more likely to reach an amicable resolution. At first glance, I have trouble digesting some of the concepts put forth in your email and by your survey. That being said, I obviously need to research the claims before I can form any real opinion about them. Once I've had a chance to do so, I will let you know what conclusions I've reached and why, and we can go from there. Perhaps my surveyor speaking with the surveyor who did your survey will help shed some light on any conflicts. Regarding the prezoning application that is going to the planning commission tomorrow, I was required to try and annex into Tiburon (from the County) in order to annex into the sanitary district so I could connect to the sewer. It's called a dual annexation policy. I am not proposing to build anything or do anything. Any future development would 9/12/23, 4:05 PM AOL Mail - Re: Sierra Pines' Boundaries with Paradise Cay Neighbors about:blank 2/3 require an application and notices, as normal. I'm happy to answer any specific questions you may have about that process, or you may reach out to the Town directly with questions. Thanks, Eric -----Original Message----- From: Racheal Turner <rachealturner@yahoo.com> To: Eric Crandall <eric94920@aol.com> Cc: Natasha Minty <natasha_christophersalon@yahoo.com> Sent: Tue, Jan 12, 2021 1:52 pm Subject: Sierra Pines' Boundaries with Paradise Cay Neighbors Hi Eric, I hope that you’ll recall that I’m your neighbor in Paradise Cay at 111 Trinidad Dr. I’m reaching out concerning the boundaries between the Sierra Pines' property and the Paradise Cay neighbors' properties. While Scott has been communicating with you on behalf of the neighbors, Scott wanted me to share new information with you directly, rather than going through him, because it came to me from my title insurance company, Fidelity National Title, which is also the title insurance company for two other neighbors. As you know from Scott, after the email exchange you and I had establishing that we did not agree on the boundary between our properties, I filed a claim with Fidelity. Fidelity then obtained our deeds and had a survey done. Fidelity recently informed us that Sierra Pines’ eastern border (closest to me and the other Southern Paradise Cay neighbors) is not the high tide line, but instead that its eastern border actually begins 25 feet from the Southern Paradise Cay neighbors’ western border. In other words, a 25-foot gap exists between the LLC’s property and the Southern Paradise Cay neighbors’ properties, and that 25-foot strip of land and shoreline is not owned by either the LLC or the Paradise Cay neighbors. Fidelity is currently doing historical research to determine who owns that 25-foot strip of property. Fidelity gave me permission today to share their survey and findings with you. Accordingly, I've attached a copy of the survey prepared at Fidelity’s request. One page is just the drawing, and the other has a satellite overlay. The dotted lines are the boundaries of the Sierra Pines property. Fidelity reports that these boundaries are surveyed by the legal description of the land as recited by the LLC’s deed. To give you some additional info, here is an explanation from the Fidelity Claims Counsel concerning his findings: “Only deeds determine title, and Crandall’s deed says that he doesn’t own anything in that 25-foot gap. Crandall’s deed makes his east boundary a straight line from one point to another by referring to a fixed point. His legal description mentions the OHT line, but it doesn’t depend on it for the purpose of describing the property.” As you’ll see from the survey, Fidelity also identified another boundary problem. Fidelity found that Sierra Pines’ property overlaps with the Minty’s property at 129 Trinidad. Specifically, Sierra Pines northern edge and the Minty’s southern edge are overlapping. Again, Fidelity is now doing historical research into this problem. I’ve cc’d Natasha Minty here, per her request, as this problem concerns her property and Fidelity is also her title insurance company. The Fidelity Claims Counsel we are working with has suggested that the boundary issues above could be most efficiently handled if you also involved your title insurance company. He said that if you submit a claim to your own title insurance company (based on the Fidelity survey and findings), then the two title companies can discuss the issues and how they can be resolved. Separately, as you probably know, your neighbors all received notice of the public hearing on Wed. before the Tiburon Planning Commission. We’re not sure from the letter what the precise issues before the Commission will be, but we’re sending emails to alert them to our boundary dispute and to the environmental concerns that we previously raised with you (i.e., protecting the shoreline trees and wildlife). If you’d like to discuss this email, I’m certainly willing, but I would ask that you please not shoot the messenger here (me!). I want to emphasize that I only know what my Title Company is reporting to me through their attorney. They are the experts, and I’m relying on their determinations. Please know that this is not personal – my interest is solely in 9/12/23, 4:05 PM AOL Mail - Re: Sierra Pines' Boundaries with Paradise Cay Neighbors about:blank 3/3 knowing where the boundaries lie (we all have a common interest in knowing our property boundaries). I certainly was not expecting to learn that our deeds leave a 25-foot gap between us and an overlap for the LLC and Minty properties. Having an unresolved boundary dispute is a stressful situation for all of us, which we all hope can be resolved amicably and with the assistance of our title insurance companies. Thanks, Racheal MAP OF PARADISE CAY - SOUTH CAY - UNIT 1 17 SUBDIVISIONS 086 MAP OF PARADISE CAY - SOUTH CAY - UNIT 2 17 SUBDIVISIONS 086TRINIDAD DRIVEPARADISE DRIVEMAP OF PARADISE CAY - SOUTH CAY - UNIT 1 17 SUBDIVISIONS 086 MAP OF PARADISE CAY - SOUTH CAY - UNIT 2 17 SUBDIVISIONS 086TRINIDAD DRIVEPARADISE DRIVE TRINIDAD DRIVEPARADISE DRIVE MAP OF PARADISE CAY - SOUTH CAY - UNIT 1 17 SUBDIVISIONS 086 MAP OF PARADISE CAY - SOUTH CAY - UNIT 2 17 SUBDIVISIONS 086TRINIDAD DRIVEPARADISE DRIVEMAP OF PARADISE CAY - SOUTH CAY - UNIT 1 17 SUBDIVISIONS 086 MAP OF PARADISE CAY - SOUTH CAY - UNIT 2 17 SUBDIVISIONS 086TRINIDAD DRIVEPARADISE DRIVE © 2020 Microsoft Corporation © 2020 Maxar ©CNES (2020) Distribution Airbus DS © 2020 Microsoft Corporation © 2020 Maxar ©CNES (2020) Distribution Airbus DS © 2020 Microsoft Corporation © 2020 Maxar ©CNES (2020) Distribution Airbus DS TRINIDAD DRIVEPARADISE DRIVE Investigative Report Regarding Beehives Paradise Cay Neighborhood On August 10th, 2021, the Marin County Department of Agriculture received a complaint from a Paradise Cay neighborhood resident about beehives located at 4576 Paradise Drive in Tiburon, California1. The complainant, a resident of the Paradise Cay neighborhood2, alleged that bees from the aforementioned property were causing nearby neighbors’ properties to be covered in bee poop (windows, house, patio, furniture, cars). After the first complaint was received, approximately eight other Paradise Cay residents also called to lodge complaints. Some of these complaints were about the bee feces, or fear about the possibility of bee stings,3 but others were about noise issues stemming from alleged roosters, cows, and wood chipping. Some of the complainants did not have issues with the bees but were concerned about the loud mooing of the cows and/or crowing of the roosters. 4576 Paradise Drive is located in unincorporated Marin County and residents in unincorporated Marin County may choose to engage in apiculture (beekeeping) without restriction: there are no required permits. County residents engaged in gardening and/or growing fruit-bearing trees rely on honeybees for fruit production4. Furthermore, in light of the on-going colony collapse disorder, and because honeybees are vital to both natural and agricultural ecosystems, the Department of Agriculture will only abate a honeybee hive if it presents a significant disease risk to other honeybee hives. On August 13th, 2021, Agricultural Inspector Chris Cook conducted a site visit in the Paradise Cay neighborhood located on Trinidad Drive. Inspector Cook met with many of the neighbors and listened to their concerns about the bees, the rooster and cow noises, and previous trees and brush clearing that took place on the aforementioned property. Several complainants also expressed concerns about an egret/heron rookery they say is located on the 4576 Paradise Drive property. Complainants alleged that the trees that house the 1 This property is located in unincorporated Marin County and is zoned BFC-RMP-0.2-Residential Multiple Planned (reference: marinmap.org). 2 All the complainants reside on Trinidad Drive in Tiburon, California. 3 As of August 30, 2021, we have received no report of anyone being stung by honeybees. 4 Trees: persimmon, avocado, orange, grapefruit, tangerine, lemon, lime, plum, apple, peach, pear, etc. Gardens: peppers, watermelon, cantaloupe, cucumber, squash, strawberry, blackberry, raspberry, blueberry, grape, etc. PG. 2 OF 2 rookery are threatened by the property owner’s recent tree/shrub removal work5. Inspector Cook was in the Paradise Cay neighborhood for approximately two to three hours and did not hear any roosters or any excessive bovine-related noise coming from 4576 Paradise Drive. The number of honeybees did not seem unreasonable.6 Inspector Cook did observe bee feces on many hard surfaces on and around some of the complainants’ homes as alleged by the initial complainant. Inspector Cook noted that many of those same surfaces had abundant bird droppings in addition to the bee feces. On August 20, 2021, Inspector Cook visited 4576 Paradise Drive and met with the property owner and the owner’s professional beekeeper. During the site visit, eight mature honeybee hives were observed, and they appeared well- tended and healthy. The owner and his beekeeper stated that many of these honeybee colonies were on the property when it was purchased in 2019. These wild colonies were extracted from existing semi-abandoned structures and relocated to conventional hive boxes, where they remain. Relocating honeybees out of structures is strongly encouraged; unlike with wasps, eradication is a last resort. In response to the complaint(s) from the Paradise Cay neighbors, the owner and his beekeeper voluntarily rotated the hives to point the hive entrances away from the complainants’ residences and also put out additional water sources for the honeybees. These efforts are intended to encourage the bees to alter their flight paths with the hope that they are less inclined to visit the residents on Trinidad Drive. In addition, the owner voluntarily committed to keeping the number of mature honeybee hives to approximately one hive per acre of land. It is important to note that this year is one of the worst drought years in recent history and consequently there are fewer wildflowers for honeybees to forage. Homes with abundant sources of water and food will attract honeybees and other animals. It was observed that the Paradise Cay neighborhood had many blooming flowers, which will always attract bees, but given the dearth of water and wildflowers, the bees will necessarily be more attracted to residences with blooming flowers and abundant water sources. Final Disposition: No violations were found of any Marin County code pertaining to beekeeping. The bee feces are unfortunate but cannot conclusively be blamed solely on the bee population located at 4576 Paradise drive because it is reasonable to assume there are other wild and/or domesticated hives in the area, especially given the nearby wildlife-rich Ring Mountain Preserve. 5 The Marin County Community Development Agency code enforcement officials have resolved or are looking into many of these other complaints and can provide more information on the merits and/or outcomes of those issues. 6 Windy conditions could have reduced the number of observable bees. June 8, 2022 Marin Resource Conservation District: Site Visit to Property of Eric Crandall at 4576 Paradise Dr. Tiburon MRCD Staff: Sarah Phillips, Urban Streams Program Manager Date Conducted: June 6, 2022 Location and Site Description: The site visit occurred at 4576 Paradise Drive, Tiburon, CA 94920. The Assessor’s Parcel Number is 038-142-02. The property is 10 acres and includes San Francisco Bay shoreline. A series of drainages were observed on the property. Water was present in the southern drainage and hydrophilic vegetation was observed in most portions of the southern drainage. The northern drainage was less defined and did not hold water other than conveying water in response to significant precipitation events, per communications from Mr. Crandall. The upland portions of the property are dominated by eucalyptus trees, French broom, Himalayan blackberry, pride of madeira, and other non-native species while the lower portions of the property include native species; Juncus sp., Cyperus sp., Scrophularia californica, Rosa californica, and Salix lasiolepis. Purpose of Site Visit: Owner requested a visual inspection of the property and assistance with general setwardship relating to owning property with stream channels running through in order to better promote native species recruitment and natural processes. Marin RCD’s Urban Streams Coordination Program Manager was recommended to Mr. Crandall due to her substantial experience working specifically with streams and regulatory compliance in Marin County for eight (8) years. Observations Noted: This property receives a significant amount of precipitation run-off from impervious surfaces such as the development from neighboring properties and roads nearby (Paradise Dr. and Mateo Dr., respectively). Many drainage channels and stream channels confluence on this property, resulting in significant conveyance through the property and ultimately discharging into San Francisco Bay. The southern channel, that conveys the majority of water running through the property, is incised in the lower reaches and spreads out in three (3) noticeable directions before it discharges into the SF Bay. The streambed has embedded bricks that are a result of historic landuse and are a legacy impact (image 7). The area does not appear to have been unnaturally altered. Recommendations: There is a structure (image 6) that should be relocated upland and further from the discharge point and shoreline area. Removal of non-native, invasive species utilitzing best management practices (BMPs) per species, including the consideration of the timing of year (i.e. do not remove vegetation, causing ground disturbance just before a rain event that can lead to erosion and introduce fine sediment to the stream, thus impairing water quality per CWA). As well, native plantings appropriate to the site and areas of the site should be considered for planting and maintaining. A native plant list for Marin will be provided via email, in addition to a native plant list that includes species that can survive within eucalyptus groves. Removal of non- embedded bricks. It is advised to continue culvert maintenance prior to storm events, via hands and hand tools (i.e. shovel) only, to maintain proper conveyence of run off and streamflow in order to reduce flooding of public roadways. From:Cynthia Massey-Kim To:Lea Dilena; Town; Dina Tasini; Jack Ryan; Holli Thier; Jon Welner; Alice Fredericks Cc:James Subject:Feedback/Letter for Town Council - 5/22 General Plan meeting Date:Friday, May 19, 2023 1:35:31 PM Attachments:Council Letter_5.19.23.pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Lea and members of the Town Council, Please see attached letter for our feedback and concerns. We kindly request the Town Council to adopt the Planning Commission's unanimousrecommendation that "Alternative 3 the Downtown Density Alternative" be thepreferred Housing Element Plan in the General Plan. We thank you for your time, consideration, and efforts.Sincerely,Cynthia & James Massey-Kim 1 May 19, 2023 Town Council, Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Dear Members of the Town Council, Dina Tasini, and Town Staff: We are wri�ng to you today to express our opposi�on to the rezoning and development of 93 units of Site H. We understand the urgency and �me sensi�vity involved to avoid the effects of Builder’s Remedy; however, we kindly urge the Town Council to adopt the Planning Commission’s unanimous recommenda�on that “Alterna�ve 3 - the Downtown Density Alterna�ve” be the preferred Housing Element Plan in General Plan 2040. Will the Town consider submi�ng a compliant Alterna�ve 3 plan to obtain HCD's cer�fica�on of compliance that will cut off the Builder's Remedy that Tiburon fears most, while also avoiding very high-density development on Site H or Downtown by taking steps now to generate surplus, replacement units for the added units iden�fied in Alt 3 for Downtown under the "No Net Loss" law. This is a win for all – both downtown and those who live near Site H. Moreover, we strongly believe that Site H is NOT suitable, nor the right place for a high-density unit development. Our concerns are as follows: 1. Safety: The safety of our young children, children on buses, commuters, cyclists, and other Tiburon residents are of utmost importance. Paradise Drive is a 2-lane narrow, windy road, with blind spots around the quick turns. “Sharing the road” is challenging even now, as cars generally pass cyclists and some�mes pedestrians, while trying to avoid collision with oncoming traffic. Paradise Drive is not built with the proper infrastructure to handle the increase in traffic and construc�on. Not only will this create addi�onal stress, but this will become a big safety hazard for the community, with a possible increase in accidents/injuries. 2. Suitability: Is the property appropriate for high density development? 4576 Paradise Dr. may provide “an alterna�ve to downtown density,” but did the Town Staff fully vet for the engineering of the lot, before including Site H to the General Plan? How will the Town take into considera�on and navigate through the exis�ng problems on or created by the property? 2 These issues include: • Erosion, an on-going concern. We have year-over-year photos of how the shoreline has changed since the Sierra Pines purchase in 2019. How will the Town mi�gate and prevent further erosion and run off from the property (Tiburon Municipal Code Title VI, Chapter 20A), while protec�ng surface water quality (as noted on page 5-6 in the EIR)? • Will the Town collaborate with Public Works to fix the water culverts and drainage on the property? During rainy days, there are rivers pouring down through the property and straight into the Bay. Issues today include COW WASTE and MANURE, but what happens when there is construc�on? What other debris or toxins will drain into the Bay? • Will the Town encourage the property owner to resolve his pending viola�on with BCDC? • What about the environmental impacts and loss of wildlife refuge? • Site viability. The owner claims he has conducted his ‘due diligence.’ Where are his efforts and studies to mi�gate traffic and prevent accidents - did he propose a bike lane or ways to improve infrastructure? Did he provide drainage solu�ons to the 4 culverts that spill onto and through the property? • The Planning Commission once determined that due to constraints of the lot, the max number of units was 7 (current zoning), but realis�cally 4. The image below is an ar�cle from the Ark (2022), sta�ng that the “Staff did not think this is a viable site for high density..” What changed, and how is it OK now for 93 units? 3 The images below are some examples of the drainages (or streams) that flow from Site H to the Bay. This is a huge problem. 3. Preserva�on of Views and Significant Reduc�on of Privacy: Mee�ngs were previously held by the Planning Commission and the Town Council to approve the removal of trees to protect the views of the homeowners above 4576 Paradise Dr. How would a 93-unit development support the Town Municipal Codes on protec�ng views? Moreover, the Paradise Cay residents who live below 4576 Paradise Drive will likely lose a great deal of privacy due to construc�on, removal of trees, and possibly up to 400 addi�onal residents looking into their homes. Paradise Cay may only be labeled as a “sphere of influence,” but our concerns are real and should be taken into serious considera�on, since we feel the direct impact of what happens on Site H. 4 4. Boundary: There are on-going border issues between 4576 Paradise Dr. and mul�ple homeowners in Paradise Cay. • The 4576 applica�on was annexed into the Town reflec�ng the original County Parcel Lot lines, which seemingly is the “lot up for 93-unit development.” • The 4576 owner references our own property dispute in his most recent leter, claiming we have an “issue .. with the results of two boundary surveys.” This is par�ally correct. o A�er much �me and money spent, we were advised by a land law legal counselor that an addi�onal survey would not be necessary, since the California Public Trust prohibits us from denying anyone public access to the Bay below the mean high �de. In other words, we may own the dirt, but we don’t own the water. If we were able to prevent Crandall from accessing the lot behind our dock, we would happily have paid for another survey and taken him to court a LONG TIME ago. o We do have an issue with the “Reese” survey; the 4576 Owner con�nues to bully mul�ple Cay residents into thinking he owns more land. Yet, the owner was annexed into the Town with the original lot lines. Which is it? - because to us, the Owner seemingly chooses whichever lot line is more advantageous to him. o Let is also be known, that the 4576 Owner submited a claim to his Title company to this “new Reese” lot line but got denied coverage beyond the original parcel lot lines. This is why there are currently no legal proceedings, because the 4576 Owner refuses to “quiet” his �tle; Not only will the owner not be covered beyond the original lot lines, but this will trigger neighbors to receive free and full �tle coverage. • Most importantly, the 4576 Owner knew there was a boundary dispute, yet went forward with the annexa�on to the original lot line. This technicality cannot be overlooked. If the owner believed he owned more land, why didn’t he resolve these discrepancies and claims before being annexed? 5. No�ce of Inclusion of Site H Residents who reside near Site H repeatedly communicated to the Town (both at the Planning Commission mee�ng and through leters) their frustra�on over not being properly ‘no�fied’ or given a fair chance to par�cipate or voice concerns about the inclusion of Site H into the General Plan. We receive mailers and no�ces about cows, tree cu�ng, etc. – Yet the Town only updated their website, and an ar�cle was posted in the Ark (which not everyone subscribes to). For a significant development/project such as this, shouldn’t more than the ‘bare minimum’ be done to properly no�fy the communi�es? We kindly request that this housing development process include or upgrade to require more outreach measures; How most residents found out was unacceptable, and quite honestly too late in the game to voice concerns. Thank you very much for your �me and considera�on. We do appreciate all your efforts. Sincerely, Cynthia & James Massey-Kim (Paradise Cay residents) 900 Los Osos Valley Road, Suite B Los Osos, CA 93402 805.439.2741 2312-average-slope.memo.docx M E M O R A N D U M FROM: Robert J. Reese, LS, REESE Water & Land Surveying Services (RWLSS) TO: Eric Crandall, 4576 Paradise Drive, Tiburon, CA DATE: 2023.08.16 SUBJECT: Average slope calculations CC: MEMO: I have performed average slope calculations for your 9.976 acre parcel according to the formula: AS = (0.00229)(I)(L)  A where: AS = average slope, in % 0.00229 = 1/43560, the conversion factor from acre to foot as a % (I) = contour interval of mapping (L) = aggregate length of contours Ac = acreage Using a 5 foot contour interval, the average slope is 27.9% Using a 10 foot contour interval, the average slope is 27.6% Note that –  The perimeter used was the boundary of your parcel from RS2021-198, Marin County Records.  Contours were generated from the surface model provided by Central Coast Aerial Mapping  The formula above is a reasonably standard one for average parcel slope: Tiburon may have something different If you have any questions, please feel free to call. Thank you. 4576 Paradise Drive Tiburon, CA Biological Constraints Analysis Prepared for: Eric Crandall 4576 Paradise Drive Tiburon, California 94920 Prepared by: MIG 2055 Junction Avenue, Suite 205 San José, CA 95134 (650) 400-5767 September 2022 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 2 Table of Contents 1 Introduction .................................................................................................................. 3 2 Methods ........................................................................................................................ 3 2.1 Background Review ............................................................................................. 3 2.2 Field Survey ......................................................................................................... 4 3 Existing Conditions ...................................................................................................... 4 3.1 General Description of the Parcel ......................................................................... 4 3.2 Existing Land Cover Types, Habitats, and Natural Communities .......................... 4 4 Potential Biological Constraints .................................................................................. 7 4.1 Sensitive and Regulated Habitats ......................................................................... 7 4.2 Special-Status Plants ........................................................................................... 9 4.3 Special-Status Animals......................................................................................... 9 4.4 Animals Protected by the Migratory Bird Treaty Act and California Fish and Game Code ...................................................................................................................11 4.5 Local Ordinances ................................................................................................13 5 References ...................................................................................................................14 Appendix A Figures ................................................................................................................16 Figure 1. Parcel Location Map ......................................................................................17 Figure 2. Land Cover Types, Habitats, and Natural Communities .................................18 Appendix B Photographs .......................................................................................................19 Appendix C Delineation of Wetlands and Waters Report .....................................................26 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 3 1 Introduction A biological assessment of 4576 Paradise Drive (APN 038-142-02) is required by the Town of Tiburon prior to future development within the parcel. A biological constraints analysis will meet the Town’s requirements of a biological assessment and is suitable for use during project planning and environmental review. The purpose of this biological constraints analysis is to describe sensitive biological resources with potential to occur in the parcel. Biological resources that were considered for this analysis are the following: • Sensitive and regulated habitats. • California species of special concern or species listed on California Native Plant Society (CNPS) or California Natural Diversity Database (CNDDB) lists of rare plants. • Species listed as threatened or endangered under the Federal Endangered Species Act (FESA). • Species listed as threatened or endangered under the California Endangered Species Act (CESA). • Nesting birds or other non-special-status species that are protected by law that could be impacted by a project. • The removal of trees as defined in the Town’s Municipal Code. 2 Methods This section describes the methods used to complete the biological constraints analysis. Methods include a database and literature review, field survey, an assessment of plant communities and wildlife habitats and corridors, an assessment of sensitive habitats and aquatic features, and a habitat evaluation for special-status species. 2.1 Background Review Available background information pertaining to the biological resources on and near the parcel was reviewed prior to conducting field surveys. Information was compiled and subsequently compared against site conditions during the field survey. The following sources were consulted: • CNDDB record search for 9-quadrangles including: San Quentin, Novato, Petaluma Point, Mare Island, Richmond, Oakland West, San Francisco North, Point Bonita, and San Rafael (CNDDB 2022). • CNPS Rare Plant Program Inventory of Rare and Endangered Plants of California record 9-quadrangle search, including San Quentin, Novato, Petaluma Point, Mare Island, Richmond, Oakland West, San Francisco North, Point Bonita, and San Rafael (CNPS 2022). Quadrangle-level results are not maintained for California Rare Plant Rank (CRPR) 3 and 4 species, so we also conducted a search of the CNPS Inventory records for these species occurring in Marin County (CNPS 2022). • California Department of Fish and Wildlife (CDFW) CNDDB for natural communities of special concern that occur within the parcel region (CNDDB 2022). 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 4 • U. S. Fish and Wildlife Service (USFWS) Information for Planning and Consultation (IPaC) tool (USFWS 2022). • USFWS National Wetland Inventory (NWI) (NWI 2022). • United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) Web Soil Survey and National Hydric Soils List (NRCS 2022a, 2022b). • eBird Database – Information on Distribution of Birds (Cornell Lab of Ornithology 2022). • Other relevant scientific literature, technical databases, resource agency reports, and Federal Register notices and other information published by USFWS and National Marine Fisheries Service (NMFS) to assess the current distribution of special-status plants and animals in the parcel vicinity. 2.2 Field Survey A field survey of the parcel was conducted by MIG Senior Biologist David Gallagher, M.S. on July 13, 2022. The survey was conducted to (1) assess and map existing biotic habitats in the parcel and (2) assess the parcel for its potential to support special-status species and their habitats. A technical delineation of wetlands and waters was conducted in the parcel on August 25, 2022 to identify and map potential waters of the U.S./state and other potential jurisdictional habitats (Appendix C). 3 Existing Conditions 3.1 General Description of the Parcel The approximately 9.12-acre parcel is located in Tiburon, Marin County, California (Appendix A, Figure 1). The parcel is situated between Paradise Drive and San Francisco Bay and is surrounded by suburban development and is zoned as RPD Residential Planned Development. Paradise Cay, an unincorporated area of Marin County, is located to the north and east of the parcel and Ring Mountain Preserve is approximately 0.2 miles to the east of the parcel. The parcel slopes downward from Paradise Drive to the San Francisco Bay with elevations ranging from approximately 95 to 3 feet (NAVD88) above sea level (Google Inc. 2022). The site is underlain by one soil type, Los Osos-Bonnydoon complex, 15 to 30 percent slopes (NRCS 2022a). The Bonnydoon series consists of shallow, somewhat excessively drained soils that formed in material weathered from sandstone and shale. Bonnydoon soils are on uplands and have slopes of 5 to 85%. This soil map unit is classified as “well-drained” and is not listed as hydric in Marin County on the National Hydric Soils List (NRCS 2022b). 3.2 Existing Land Cover Types, Habitats, and Natural Communities The parcel is located within the San Francisco Bay Area Subregion of the Central Western Californian Region, both of which are contained within the larger California Floristic Province (Baldwin et al. 2012). Where applicable, vegetation communities were mapped using CDFW’s Vegetation Classification and Mapping Program’s (VegCAMP) currently accepted list of vegetation alliances and associations (CDFW 2022). The reconnaissance-level field survey 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 5 identified six natural communities, habitats, and land cover types in the parcel: (1) Rural- residential (2) Coast Live Oak Woodland and Forest Alliance, (3) Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance, (4) Coyote Brush Scrub Alliance, (5) Arroyo Willow Thickets Alliance, and (6) ephemeral stream. Existing natural communities and land cover types in the parcel are summarized in Table 1, and their distribution within the parcel is depicted in Appendix A, Figure 2. Table 1. Summary of Existing Land Cover Types, Habitats, and Natural Communities Land Cover Types, Habitats, Natural Communities Area (acres) Rural-residential 4.46 Coast Live Oak Woodland and Forest Alliance 1.92 Eucalyptus – Tree of Heaven – Black Locust Groves Semi-Natural Alliance 1.06 Coyote Brush Scrub Alliance 0.63 Arroyo Willow Thickets Alliance 0.51 Ephemeral Stream (up to top of bank) 0.54 Total 9.12 Rural-residential. The rural residential land cover within the parcel consists of disturbed open areas, buildings, a single-family home, unpaved access roads, gardens, a chicken coop, and grazing pens (Appendix B, Photo 1). Woody vegetation is dominated by non-native trees and shrubs, and the understory is dominated by non-native herbaceous plants, The understory vegetation is regularly subject to disturbance, including mowing and/or grazing, which precludes the establishment of native vegetation and wildlife habitat. Two rocky outcroppings were mapped within this land cover type (Appendix B, Photo 2). Trees and shrubs observed included the non-native species, blue gum eucalyptus (Eucalyptus globulus), cherry plum (Prunus cerasifera), cotoneaster (Cotoneaster sp.), olive (Olea europaea), the invasive French broom (Genista monspessulana), the invasive pampas grass (Cortaderia jubata), and silver wattle (Acacia dealbata). Herbaceous species observed included the non-native species, foxtail barley (Hordeum murinum), Italian thistle (Carduus pycnocephalus), Jersey cudweed (Pseudognaphalium luteoalbum), panic veldtgrass (Ehrharta erecta), soft brome (Bromus hordeaceus), and slender oat (Avena barbata). Due to the scarcity of vegetation and regular disturbance of these areas, the rural residential areas of the parcel provide relatively low-quality habitat for wildlife species. However, many of the wildlife species that occur in the adjacent oak woodland, coyote brush scrub, Eucalyptus grove, and willow thickets communities likely move through the rural-residential areas en route to other neighboring habitats. Additionally, the structures within the rural residential land cover may provide nesting sites for several bird species including black phoebe (Sayornis nigricans), Bewick’s wren (Thryomanes bewickii), and mourning dove (Zenaida macroura). Several other common native species may also occupy this landcover type, including black-tail deer (Odocoileus hemionus columbianus), raccoon (Procyon lotor), dark-eyed junco (Junco 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 6 hyemalis), house finch (Haemorhous mexicanus), and California towhee (Melozone crissalis), among other species. Coast Live Oak Woodland and Forest Alliance. The Coast Live Oak Woodland and Forest Alliance natural vegetation community forms a nearly continuous canopy in the southern portion of the parcel (Appendix B, Photo 3). This vegetation community is dominated by mature coast live oak trees (Quercus agrifolia). Other trees present included toyon (Heteromeles arbutifolia), Monterey pine (Pinus radiata), and the non-native Ngaio tree (Myoporum laetum). The understory is vegetated with a variety of native and non-native shrubs including California sage brush (Artemisia californica), coyote brush (Baccharis pilularis) and French broom. Understory herbaceous vegetation observed included American bird’s foot trefoil (Acmispon americanus), blue wild rye (Elymus glaucus), California wood fern (Dryopteris arguta), common Pacific pea (Lathyrus vestitus), Italian thistle, ladies’ tobacco (Pseudognaphalium californicum), pink honeysuckle (Lonicera hispidula), slender oat, and sticky monkeyflower (Diplacus aurantiacus). Despite the suburban surroundings, the Coast Live Oak Woodland and Forest Alliance within the parcel likely supports many common wildlife species acclimatized to suburban and/or disturbed environments. Leaf litter, downed tree branches, low-growing forbs, and fallen logs provide cover for amphibians and reptiles, including California slender salamander (Batrachoseps attenuatus), western fence lizard (Sceloporus occidentalis), and the southern alligator lizard (Elgaria multicarinata). Common avian species that are resident in this habitat include Anna’s hummingbird (Calypte anna), Bewick’s wren, bushtit (Psaltriparus minimus), California towhee, chestnut-backed chickadee (Poecile rufescens), dark-eyed junco (Junco hyemalis), house finch (Haemorhous mexicanus), oak titmouse (Baeolophus inornatus), and white-breasted nuthatch (Sitta carolinensis). Small mammals such as California mice (Peromyscus californicus), deer mice (Peromyscus maniculatus), and non-native eastern grey squirrel (Sciurus carolinensis) may be present. Several mature trees provide suitable nesting habitat for Cooper’s hawk (Accipiter cooperii) and red-tailed hawk (Buteo jamaicensis). Bats such as the Mexican free-tailed bat (Tadarida brasiliensis) and Yuma myotis (Myotis yumanensis) may day roost in suitable cavities and crevices on trees. Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance. The Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance forms a nearly continuous canopy in the southwestern portion of the parcel (Appendix B, Photo 4). This semi- natural vegetation community is dominated by mature blue gum trees. The understory is sparse and is dominated by non-native vegetation, including cotoneaster, French broom, and panic veldtgrass. Many of the same wildlife species that may be found in the other vegetation communities, land cover types, and habitats in the parcel may also use or pass through this semi-natural vegetation community Coyote Brush Scrub Alliance. The Coyote Brush Scrub Alliance natural vegetation community forms a dense stand on a steep hillside in the northeastern portion of the parcel (Appendix B, Photo 5). This community is dominated by coyote brush. Other species observed included toyon and California sage brush. Understory species observed included slender oat, sticky monkey flower, and Italian thistle. Many of the same wildlife species that may be found in the other 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 7 vegetation communities, land cover types, and habitats in the parcel may also use or pass through this vegetation community. Arroyo Willow Thickets Alliance. The Arroyo Willow Thickets Alliance natural vegetation community forms a narrow band along the eastern portion of the parcel that borders the San Francisco Bay (Appendix B, Photo 6). This community is dominated by mature arroyo willows (Salix lasiolepis). Other trees present include California bay laurel (Umbellularia californica). Understory species observed included the invasive non-native species, Cape ivy (Delairea odorata), giant reed (Arundo donax), and French broom. Many of the same wildlife species that may be found in the other vegetation communities, land cover types, and habitats in the parcel may also use or pass through this natural vegetation community Ephemeral Stream. A technical delineation of wetlands and waters of the parcel identified two ephemeral streams (drainages) within the parcel. Also, small seasonal wetlands were mapped within each of the ephemeral drainages. The delineation of wetland and waters report is attached as Appendix C. Both drainages receive runoff from surrounding upland areas and Paradise Drive. No flowing or standing water was observed during the site visit (Appendix B, Photo 6). The NWI maps the two ephemeral drainages as intermittent riverine streams (NWI 2022). An ephemeral drainage generally only flows during or immediately after a rain event. During dry periods, ephemeral drainages do not have flowing surface water. Vegetation observed growing in the drainages included bristly ox-tongue (Helminthotheca echioides), curly dock (Rumex crispus), Fremont cottonwood saplings (Populus fremontii), Harding grass (Phalaris aquatica), Himalayan blackberry (Rubus armeniacus), little rattlesnake grass (Briza minor), rabbitsfoot grass (Polypogon monspeliensis), and slender oat. Due to the lack of persistent flows, the drainages have limited value to aquatic wildlife. However, when water is present, the drainages may provide habitat for native amphibians such as Sierran treefrog (Pseudacris sierra). Many of the same wildlife species that may be found in the other vegetation communities, land cover types, and habitats in the parcel may also use or pass through this habitat. 4 Potential Biological Constraints This section evaluates the biological resources that may be impacted significantly by future development within the parcel, as defined by the California Environmental Quality Act (CEQA), and/or for which regulatory agency approvals may be required. For informational purposes, this section also includes an overview of some of the general issues that might impose lesser constraints on development within the parcel (e.g., compliance with the Migratory Bird Treaty Act [MBTA] and California Fish and Game Code). 4.1 Sensitive and Regulated Habitats Waters of the U.S./State and California Department of Fish and Wildlife Regulated Habitats. The U.S. Army Corps of Engineers (USACE) regulates waters of the U.S. under Section 404 of the Clean Water Act (CWA) and the Regional Water Quality Control Board (RWQCB) regulates waters of the state under Section 401 of the CWA and the Porter Cologne 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 8 Water Quality Control Act. Waters of the U.S/state include wetlands, bays, lakes, slough channels, seasonal ponds, tributary waters, non-wetland linear drainages, and salt ponds. Within the parcel, the two ephemeral drainages, including the seasonal wetlands, and Bay waters meet the definition of waters of the U.S/state and any impacts to these habitats may be subject to jurisdiction by the USACE and RWQCB. USFWS Definition of Wetlands. The Town of Tiburon uses the U.S. Fish and Wildlife Service’s definition of a wetland (United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993)). The USFWS definition of a wetland is: Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For purposes of this classification, wetlands must have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes (plants specifically adapted to live in wetlands); (2) the substrate is predominantly undrained hydric (wetland) soil; and (3) the substrate is non-soil and is saturated with water or covered by shallow water at some time during the growing season of each year. The two ephemeral drainages, including the seasonal wetlands do not meet the USFWS’s definition of a wetland due to lack of a high-water table or shallow water. The California Fish and Game Code includes regulations governing the use of, or impacts to, many of the state’s fish, wildlife, and sensitive habitats, including the bed and banks of rivers, lakes, and streams. The ephemeral streams and associated riparian vegetation are subject to CDFW jurisdiction under Section 1600 et seq. of the California Fish and Game Code. Also, CDFW regulates and tracks sensitive natural communities and ranks vegetation alliances (CDFW 2022). The Willow Thickets Alliance is ranked as a sensitive vegetation community and may be subject to CDFW jurisdiction (CDFW 2022). Potential CEQA and Regulatory Considerations. If development within the parcel includes design features that would encroach within the ephemeral streams, the Willow Thickets Alliance, and Bay waters (e.g., culverts, piers, structures, vegetation removal, etc.) the impacts would likely be considered significant under CEQA and require mitigation. Additionally, if development within the parcel includes any new impervious surfaces that would create stormwater runoff into the ephemeral streams or directly into the San Francisco Bay, there is potential for the project to impact water quality which may adversely affect water quality and wildlife. Such impacts to water quality would also be considered significant under CEQA. Impacts to waters of the U.S./state or other regulated habitats would require authorization from USACE, RWQCB, and CDFW. Potential Mitigation Requirements. If USACE, RWQCB, and/or CDFW authorization is required for the project, additional conservation and/or mitigation measures for impacts to Waters of the U.S./state or other regulated habitats may be required. This may include Best Management Practices (BMPs) to minimize impacts and, if necessary, compensatory mitigation for permanent loss of stream habitat. Also, depending on the amount of any new impervious surface, BMPs and Low Impact Development practices may need to be incorporated into the project design to prevent stormwater runoff pollution, promote infiltration, and hold/slow down 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 9 the volume of stormwater runoff coming from a site (e.g., green roofs, bioretention and/or detention basins, among other on-site treatment controls). 4.2 Special-Status Plants The CNPS (2022) and CNDDB (2022) identify 111 special-status plant species as potentially occurring in the nine 7.5-minute quadrangles containing and/or surrounding the parcel. All 111 of those potentially occurring special-status plant species were determined to be absent from the parcel for at least one of the following reasons: (1) a lack of specific habitat for the species in question (e.g., freshwater marsh) and/or edaphic requirements (e.g., serpentine or volcanic soils), (2) the geographic range of the species does not overlap the parcel, (3) the species is known to be extirpated from the parcel vicinity, and/or (4) the habitats within the parcel are too degraded to reasonably expect any special-status species to occur there. Several special-status species are known to occur at nearby Ring Mountain Preserve. However, these species are serpentine endemics. Because serpentine substrate was not observed within the parcel and the habitat is substantially degraded, these special-status species were determined to be absent from the parcel. Potential CEQA and Regulatory Considerations. Because there is no potential for special- status plant species to occur within the parcel, there are no CEQA or regulatory considerations for development within the parcel. Additionally, no mitigation measures are required to address special-status plants. 4.3 Special-Status Animals Based on a review of the USFWS and CNDDB databases (IPaC 2022, CNDDB 2022) and other data sources, and an assessment of the habitats within the parcel, no special-status species are expected occur within the parcel. However, two of those species, longfin smelt (Spirinchus thaleichthys), listed as Threatened under CESA and the North American green sturgeon (Acipenser medirostris), southern Distinct Population Segment (DPS), listed as Threatened under FESA and a California Species of Special Concern (CSSC), have some potential to occur in Bay waters adjacent to the parcel. Most of the species that were considered in this analysis are not expected to occur within or near the parcel due to the lack of suitable habitat (e.g., perennial stream, marsh, serpentine grassland), the parcel is outside the range of the species, and/or it is isolated from the nearest known extant population by development or otherwise unsuitable habitat. Longfin Smelt. This southernmost population of longfin smelt is found as far north as Prince William Sound, Alaska, and this species occurs in the San Francisco Bay. The longfin smelt was declared a threatened species under the CESA in March 2009 and has been petitioned for listing as endangered under the FESA (USFWS 2008). Longfin smelt are anadromous fish that spawn in fresh waters and disperse to more saline estuarine and marine waters when mature (Moyle 2002). Although little is known about the breeding biology of longfin smelt in the San Francisco Bay, the species is thought to spawn at 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 10 the interface between fresh and brackish water in tidal portions of San Francisco Bay tributaries (Robinson and Greenfield 2011). Spawning in the Bay is thought to occur mainly below Medford Island in the San Joaquin River and below Rio Vista on the Sacramento River, while the lower end of spawning habitat seems to be upper Suisun Bay around Pittsburg and Montezuma Slough, in Suisun Marsh. Winter sampling conducted in 2010 found high numbers of longfin smelt in Coyote Creek and Alviso Slough in the South Bay, and study data from 1982 and 1983 show use of Coyote Creek by spawning adults and larvae (Robinson and Greenfield 2011). The distribution of larvae is strongly influenced by freshwater outflow to the Delta (Baxter 1999, Dege and Brown 2004). In dry years, larvae are concentrated primarily in the West Delta and Suisun Bay, and in wet years, larvae are found throughout the San Francisco Estuary, including the South Bay, with the greatest concentrations in San Pablo and Suisun Bay early in the season and into the Central Bay later in the season (Rosenfield 2009). Within these areas, spawning may occur from November to June, with the peak of spawning activity likely occurring from February to April (Moyle 2002). Nonbreeding longfin smelt can potentially be present in any fully tidal waters in the Bay as long as water temperatures do not exceed 22 °C. Thus, occasional individuals may forage in the open water adjacent to the parcel. Based on this species life history and habitat use there is a potential for longfin smelt to occur in Bay waters adjacent to the parcel from late fall to early spring (i.e., November to April). However, due to the absence of suitable brackish/freshwater spawning habitat in the parcel area, this species is not expected to spawn there, and thus they are not expected to be present from late spring to mid-fall. North American Green Sturgeon. Southern DPS. The Southern Distinct Population Segment (DPS) of the North American green sturgeon was federally listed as threatened on April 7, 2006 (NMFS 2006). Critical habitat for the Southern green sturgeon was designated on October 9, 2009 and includes all tidally influenced waters of the San Francisco Bay and coastal waters of Northern California, south to Monterey Bay to a depth of 360 feet (NMFS 2009). Green sturgeon are the most broadly distributed and wide-ranging species of the sturgeon family, occurring in ocean waters from Ensenada, Mexico to the Bering Sea, and they commonly occur in coastal waters from San Francisco Bay to Canada (Erickson and Hightower 2007). The historical and current distribution of where this species spawns is unclear because the original spawning distribution may have been reduced due to harvest and other anthropogenic effects, and because they make non-spawning movements into estuaries during summer and fall (Lindley et al. 2008). Spawning has been documented in the Rogue (Erickson et al. 2002), Klamath (Scheiff et al. 2001), Trinity (Scheiff et al. 2001), Sacramento, and Eel (Lindley et al. 2008) rivers. Green sturgeon are long-lived, slow-growing fish and the most marine-oriented of the sturgeon species. Green sturgeon exhibit delayed sexual maturity, somewhere between 13 and 20 years, and spawn every 2 to 5 years (Moyle 2002). They live to a maximum age of 60 to 70 years (Moyle 2002). Juveniles reside in fresh water, with adults returning to freshwater to spawn when they are more than 15 years of age and more than 4 feet in size. Spawning is believed to occur every 2 to 5 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 11 years (Moyle 2002). In the Sacramento River, green sturgeon spawn in late spring and early summer (NMFS 2003). Adults typically migrate into fresh water beginning in late February; spawning occurs March-July, with peak activity in April-June (Moyle et al. 1995). Juveniles spend 1 to 4 years in fresh and estuarine waters before migrating to the ocean (Beamesderfer and Webb 2002). Green sturgeon spend the majority of their lives in nearshore oceanic waters, bays, and estuaries. In summer and fall, they commonly occur in estuaries where there has been no known spawning activity and where there are no records of their occurrence farther up the river system (Adams et al. 2007), suggesting that the species may wander widely in accessible estuarine habitat. Studies in the Sacramento-San Joaquin Delta found that juveniles feed on opossum shrimp (Mysidacea) and amphipods (Radtke 1966) and adults feed on benthic invertebrates and even small fish (Moyle et al. 1995). Green sturgeon spawn in deep pools or “holes” in large, turbulent, freshwater rivers (Moyle et al. 1995). Specific spawning habitat preferences are unclear, but it is likely that cold, clean water and suitable substrate (large cobble, but also clean sand and bedrock) are important for spawning and embryonic development (Moyle et al. 1995). There is the potential for green sturgeon to be present year-round as non-breeders in the Bay waters adjacent to the parcel. However, there is no suitable breeding habitat within or nearby the parcel. Potential CEQA and Regulatory Considerations. Project activities within or adjacent to Bay waters may indirectly impact special-status fish through the degradation of surface or ground water quality due to erosion and transport of fine sediments, unintentional release of contaminants, and soil compaction from access and equipment in tidal areas. If work takes place in Bay waters, individuals of green sturgeon and longfin smelt may also be directly impacted if they are present in Bay waters because they could be crushed or injured by personnel or equipment working in the water. Such impacts would be considered significant under CEQA. Additionally, work within Bay waters would require permits from the USACE and RWQCB. Work adjacent to Bay waters may also trigger a permit requirement, depending on the location of the proposed activity. Potential Mitigation Requirements. Depending on future project activities, mitigation measures for potential impacts on longfin smelt and green sturgeon may include dewatering work areas, relocation of stranded fish (for work within tidal waters), erosion control measures to protect water quality, worker environmental awareness training, and biological monitoring by a qualified biologist. Compensatory mitigation may be required for permanent loss of habitat for these species. 4.4 Animals Protected by the Migratory Bird Treaty Act and California Fish and Game Code Nesting Birds. The U.S. Migratory Bird Treaty Act (MBTA; 16 USC §§ 703 et seq., Title 50 Code of Federal Regulations [CFR] Part 10) protects all native bird species. Under the MBTA it is illegal to disturb a nest that is in active use, since this could result in killing a bird, destroying a 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 12 nest, or destroying an egg. The USFWS enforces MBTA. The MBTA does not protect some birds that are non-native or human-introduced or that belong to families that are not covered by any of the conventions implemented by MBTA. In addition, all native bird species that occur in the parcel are protected by the California Fish and Game Code (§§3503, 2513, and 3800). Specifically, the Code protects native birds, including their nests and eggs, from all forms of take. Disturbance that causes nest abandonment and/or loss of reproductive effort is considered “take” by the CDFW. Raptors (i.e., eagles, falcons, hawks, and owls) and their nests are specifically protected in California under Fish and Game Code §3503.5. Section 3503.5 states that it is “unlawful to take, possess, or destroy any birds in the order Falconiformes or Strigiformes (birds of prey) or to take, possess, or destroy the nest or eggs of any such bird except as otherwise provided by this code or any regulation adopted pursuant thereto.” A variety of common native bird species occupy the parcel and may nest within vegetated (e.g., trees, shrubs, grasses) and the rural residential areas within the parcel (see Section 3.2 above). The nesting bird season is generally February 1 to September 15 in Marin County. Potential CEQA and Regulatory Considerations. The removal of vegetation or structures supporting active nests can potentially cause the direct loss of eggs or young and project- related activities located near an active nest may cause adults to abandon their eggs or young. Impacts on active nests would be considered significant under CEQA as all native birds and their nests are protected by the MBTA and California Fish and Game Code. Potential Mitigation Requirements. Because impacts on nesting birds would be considered significant under CEQA and could violate the MBTA and California Fish and Game Code, the following avoidance and minimization measures are warranted: • Avoid initiating project activities during the nesting bird season (generally February 1 to September 15 in Marin County) to the extent feasible. • Remove potential nesting substrate (trees, shrubs, structures) as required for a future project outside of the nesting bird season to preclude impacts to nesting birds. • Conduct pre-construction surveys within 5 days of disturbance, and if active nests are identified then appropriate disturbance-free buffers should be established. Typical disturbance-free buffers are 300 feet for raptors and 100 feet for other species. • If CDFW authorization is required for the project, additional protections such as active nest monitoring may be required. Common Roosting Bats. Bats and other non-game mammals are protected by California Fish and Game Code Section 4150, which states that all non-game mammals or parts thereof may not be taken or possessed except as provided otherwise in the code or in accordance with regulations adopted by the commission. Activities resulting in mortality of non-game mammals (e.g., destruction of an occupied nonbreeding bat roost, resulting in the death of bats), or disturbance that causes the loss of a maternity colony of bats (resulting in the death of young), may be considered “take” by the CDFW. Cavities, crevices and exfoliating bark in trees within the parcel potentially provide suitable roosting habitat for common colonially roosting bat species, . Many of the trees within the parcel 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 13 do not support habitat suitable to support large maternity colonies, but smaller cavities and crevices may support small numbers of roosting bats. Potential CEQA and Regulatory Considerations. Increased noise and other disturbance from project activities could temporarily alter foraging and roosting behavior, potentially resulting in the abandonment of maternity or day roosts. Additionally, removal of trees or structures could result in injury or mortality of individuals or result in the loss of a maternity colony. Such impacts would be considered significant under CEQA. Potential Mitigation Requirements. Typical measures to avoid impacts on roosting bats may include pre-construction surveys of potential roost habitat, avoidance of removal of trees or structures containing roost sites during the time of year when bats are inactive (generally mid- October to late March), exclusion or deterrence of non-reproductive bat colonies during the time of year when bats are most active (generally April to mid-October), avoidance of active maternity roost sites during the maternity season (April 1 – August 31), worker environmental awareness training, and establishment of disturbance-free buffer zones (typically 100 feet) around active maternity roost sites. If CDFW authorization is required for the project, additional measures may be required, such as replacement of roosting habitat when significant roost sites (e.g., roosts with >50 individuals) are impacted. 4.5 Local Ordinances Removal of Trees. Removal or alteration of any tree located in the RPD zoning district is prohibited without the prior issuance of a permit from the Town. The Town’s ordinance defines a tree as a “woody perennial plant that has a trunk circumference of twenty inches measured at twenty-four inches above the ground surface; or a woody perennial plant at least fifteen feet in height that usually, but not necessarily, has a single trunk.”. The Town’s ordinance defines alteration as “any action which would significantly damage the health or appearance of any tree, whether by: (1) Cutting of its trunk or branches; (2) Filling or surfacing or changing the drainage of the soil within the dripline of the tree; or (3) Performing other damaging acts.”. Potential CEQA and Regulatory Considerations. The Town provides tree protection under Title IV, Chapter 15A – Trees. The ordinance regulates the removal, alteration, and planting of trees. The removal of one or more trees may be a significant impact under CEQA. Additionally, tree or vegetation removal in the Willow Thickets Alliance would likely require CDFW authorization. Potential Mitigation Requirements. Removal or alteration of trees covered by the ordinance would require a tree removal permit prior to the start of project activities. The planning director may also require the replacement of removed trees up to a 3:1 replacement to removal ratio. This permit process may also require tree protection measures for trees that will be preserved. Typical tree protection measures include implementation of tree protection zones (i.e., protecting trees that are intended to remain on the site from incidental project disturbance) and development of a tree protection plan by a certified arborist. If CDFW authorization is required for the project, additional conservation and/or mitigation measures may be required (e.g., a higher replacement to removal ratio for any trees removed). 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 14 5 References Adams, P.B., C. Grimes, J.E. Hightower, S.T. Lindley, M.L. Moser, and M.J. Parsley. 2007. Population status of North American green sturgeon, Acipenser medirostris. Environmental Biology of Fishes 79:339-356. Baldwin, B.G., D.H. Goldman, D. J. Keil, R. Patterson, T.J. Rosatti, and D.H. Wilken, editors. 2012. The Jepson Manual: Vascular plants of California, second edition. University of California Press, Berkeley. Baxter, R. D. 1999. Osmeridae. Page 501 in J. J. Orsi, editor, Report on the 1980–1995 Fish, Shrimp, and Crab Sampling in the San Francisco Estuary, California. The Interagency Ecological Program for the Sacramento-San Joaquin Estuary (IEP), Sacramento, California. Beamesderfer, R.C.P. and M.A.H. Webb. 2002. Green Sturgeon Status Review Information. S. P. Cramer and Associates, Gresham, Oregon. [CDFW] California Department of Fish and Wildlife. 2022. VegCAMP Natural Communities Lists. Accessed July 2022 from https://www.wildlife.ca.gov/data/vegcamp/natural-communities. [CNDDB] California Natural Diversity Data Base. 2022. Results of electronic records search. Rarefind 5. California Department of Fish and Wildlife, Biogeographic Data Branch. Accessed July 2022 from http://www.dfg.ca.gov/biogeodata/cnddb/mapsanddata.asp. [CNPS] California Native Plant Society. 2022. Inventory of Rare, Threatened, and Endangered Plants of California. Version 8-02. Accessed July 2022 from http://www.rareplants.cnps.org/advanced.html. Cornell Lab of Ornithology. 2022. eBird. http://www.ebird.org/. Accessed July 2022. Dege, M., and L. R. Brown. 2004. Effect of outflow on spring and summertime distribution and abundance of larval and juvenile fishes in the upper San Francisco Estuary. Pages 49– 65 in L. R. B. Feyrer, R. L. Brown, and J. J. Orsi, editors, Early Life History of Fishes in the San Francisco Estuary and Watershed. American Fisheries Society, Bethesda, Maryland. Erickson, D.L., J.A. North, J.E. Hightower, J. Weber, and L. Lauck. 2002. Movement and habitat use of green sturgeon Acipenser medirostris in the Rogue River, Oregon, USA. Journal of Applied Ichthyology 18:565-569. Erickson, D.L., and J.E. Hightower. 2007. Oceanic distribution and behavior of green sturgeon. American Fisheries Society Symposium 56:197-211. Google Inc. 2022. Google Earth Pro (Version 7.1.5.1557) [Software]. Available from earth.google.com. Holland, R. F. 1986. Preliminary descriptions of the terrestrial natural communities of California. Unpublished report. California Department of Fish and Game, Natural Heritage Division, Sacramento, CA. Lindley, S.T., M.L. Moser, D.L. Erickson, M. Belchik, D.W. Welch, E. Rechisky, J.T. Kelly, J. Heublein, and A.P. Klimley. 2008. Marine migration of North American green sturgeon. Transactions of the American Fisheries Society 137:182-194. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 15 Moyle, P.B., R.M. Yoshiyama, J.E. Williams, and E.D. Wikramanayake. 1995. Fish Species of Special Concern in California. 2nd ed. California Department of Fish and Game, Rancho Cordova, California. Final Report for Contract No. 21281F. Moyle, P. 2002. Inland Fishes of California, 2nd Edition, Berkeley, University of California Press. [NMFS] National Marine Fisheries Service. 2003. Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List North American Green Sturgeon as a Threatened or Endangered Species. Federal Register 68:4433-4441. [NMFS] National Marine Fisheries Service. 2006b. Endangered and Threatened Wildlife and Plants; Threatened status for Southern Distinct Population Segment of North American Green Sturgeon. Federal Register 67:17757-17766. [NMFS] National Marine Fisheries Service. 2009. Endangered and threatened wildlife and plants: final rulemaking to designate critical habitat for the threatened southern distinct population segment of North American green sturgeon: Final Rule. Federal Register 74:52300- 52351. [NRCS] Natural Resources Conservation Service. 2022a. Web Soil Survey. U.S. Department of Agriculture. Accessed July 2022 from http://websoilsurvey.nrcs.usda.gov. [NRCS] National Resource Conservation Service. 2022b. National Hydric Soils List. Accessed July 2022 from http://www.nrcs.usda.gov/wps/portal/nrcs/main/soils/use/hydric/. [NWI] National Wetlands Inventory. 2022. Wetlands Mapper. U.S. Fish and Wildlife Service Accessed July 2022 from http://www.fws.gov/wetlands/Wetlands-Mapper.html. Radtke, L.C. 1966. Distribution of smelt juvenile sturgeon and starry flounder in the Sacramento – San Joaquin Delta. In S.L. Turner and D.W. Kelley, editors. Ecological studies of the Sacramento - San Joaquin Delta, Part II. p 115-119. California Department of Fish and Game, Fish Bulletin 136. Robinson, A., and B. K. Greenfield. 2011. LTMS Longfin Smelt Literature Review and Study Plan. San Francisco Estuary Institute, Richmond, California. Prepared for Long-Term Management Strategy for Dredged Materials in San Francisco Bay. Scheiff, A.J., J.S. Lang, and W.D. Pinnix. 2001. Juvenile salmonid monitoring on the mainstem Klamath River at Big Bar and mainstem Trinity River at Willow Creek, 1997-2000. U.S. [USFWS] U.S. Fish and Wildlife Service. 2008. Endangered and threatened wildlife and plants; petition to list the San Francisco-Bay Delta population of the longfin smelt (Spirinchus thaleichthys) as endangered; notice of 90-day petition finding and initiation of status review. Federal Register 73:24911–24915. [USFWS] U.S. Fish and Wildlife Service. 2022. IPaC Information for Planning and Conservation. Accessed July 2022 from https://ecos.fws.gov/ipac/t69. Zeiner, D.C., W.F. Laudenslayer Jr., K.E. Mayer, and M. White, editors. 1990. California’s Wildlife. Volume III: Mammals. California Department of Fish and Game, Sacramento, California. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 16 Appendix A Figures Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure1_Parcel_Location_Map_2022_0729.mxd 8/1/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive, Tiburon, CA Biological Constraints Analysis 0 0.15 0.30.075 Miles K Figure 1 Parcel Location Map Richmond San Rafael San Francisco Mill Valley Oakland San Pablo Sausalito Parcel Boundary Ring Mountain Preserve San Francisco Bay P a r a d i s e D r i v e Trestle Glen B l v d Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure6_Vegetation_Communities_Map_2022_0912.mxd 9/20/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive, Tiburon, CA Biological Constraints Analysis 0 200 400100Feet K Figure 2 Land Cover Types, Habitats, and Natural Communities San Francisco Bay Pa r a d i s e D r i v e Parcel Boundary Coast Live Oak Woodland and Forest Alliance Coyote Brush Scrub Alliance Eucalyptus-Tree of Heaven- Black Locust Groves Semi-Natural Alliance Seasonal Wetland Rural-residential Willow Thickets Alliance Swale Ephemeral Stream 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 19 Appendix B Photographs 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 20 Photo 1. Rural-residential land cover in the parcel. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 21 Photo 2. Rocky outcrop within the rural-residential land cover. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 22 Photo 3. Coast Live Oak Woodland and Forest Alliance in the parcel. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 23 Photo 4. Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance in the parcel. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 24 Photo 5. Coyote Brush Scrub Alliance in the parcel. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 25 Photo 6. Ephemeral drainage with Arroyo Willow Thickets Alliance and San Francisco Bay in the background. 4576 Paradise Drive Biological Constraints Analysis September 2022 MIG 26 Appendix C Delineation of Wetlands and Waters Report 4576 Paradise Drive Tiburon, California Delineation of Wetlands and Other Waters Prepared for: Eric Crandall 4576 Paradise Drive Tiburon, California 94920 Prepared by: MIG 2055 Junction Avenue Suite 205 San Jose, CA 95131 (650) 327-0429 September 2022 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 2 1. Introduction The purpose of this delineation is to identify the extent and distribution of wetlands and other waters occurring at 4576 Paradise Drive in Tiburon, Marin County, California (APN 038-142-02) under conditions existing at the time of the August 2022 survey. The size of the parcel is approximately 9.12 acres (Figures 1 to 3). Within the parcel, two ephemeral drainages and one swale were identified in a biological constraints analysis prepared for the parcel by MIG in August 2022. To determine if these drainages and swale are potential waters of the U.S. and/or state, a formal technical delineation was completed in accordance with the U.S. Army Corps of Engineers (USACE) methodology. The USACE methodology includes collection of technical data on soils, vegetation, and hydrology, which are used to identify wetlands and other waters. The USACE methodology is accepted by both federal and state regulatory agencies. The climate in the region is coastal Mediterranean, with most rain falling in the winter and spring. Mild cool temperatures are common in the winter. Hot to mild temperatures are common in the summer. Climate conditions in the project area include a 30-year average of approximately 43.8 inches of annual precipitation with an average minimum daily temperature of 48ºF and an average maximum daily temperature of 71ºF (Deters 2022). The site is underlain by one soil type, Los Osos-Bonnydoon complex, 15 to 30 percent slopes (NRCS 2022a) (Figure 4). The Bonnydoon series consists of shallow, somewhat excessively drained soils that formed in material weathered from sandstone and shale. Bonnydoon soils are on uplands and have slopes of 5 to 85%. This soil map unit is classified as “well-drained” and is not listed as hydric in Marin County on the National Hydric Soils List (NRCS 2022b). A detailed description of this soil type can be found in Appendix A. The U.S. Fish and Wildlife Service’s National Wetlands Inventory (NWI) map of the parcel is depicted in Figure 5. The NWI identified two temporarily flooded intermittent riverine systems within the parcel (R4SBA) (NWI 2022). NWI maps are based on interpretation of aerial photography, limited verification of mapped units, and/or classification of wetland types using the classification system developed by Cowardin et al. (1979). These data are available for general reference purposes and do not necessarily correspond to the presence or absence of jurisdictional waters. 2. Survey Methods Before the delineation surveys were conducted, topographic maps and aerial photos of the study area were obtained and reviewed from several sources, such as the U.S. Geological Survey (USGS) (Figure 3), Natural Resources Conservation Service (NRCS) (Figure 4), NWI (Figure 5), and Google Earth software (Google Inc. 2022). On August 25, 2022, MIG Senior Biologist David Gallagher performed a technical delineation of 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 3 wetlands and other waters in the parcel, in accordance with the Corps of Engineers 1987 Wetlands Delineation Manual (Corps Manual; Environmental Laboratory 1987). Additionally, the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West (Version 2.0) (Regional Supplement) (USACE 2008a) and A Field Guide to the Identification of the Ordinary High-Water Mark (OHWM) in the Arid West Region of the Western United States (USACE 2008b) were followed to document site conditions relative to hydrophytic vegetation, hydric soils, and wetland hydrology. Mr. Gallagher performed preliminary mapping of the extent and distribution of wetlands and other waters of the U.S. that may be subject to regulation under Section 404 of the Clean Water Act (CWA); and waters of the state that may be subject to regulation under the Porter Cologne Water Quality Control Act, which is administered by the Regional Water Quality Control Board (RWQCB). Mr. Gallagher also surveyed for aquatic and riparian habitat that may be subject to regulation under Sections 1600-1607 of the California Fish and Game Code, which is administered by California Department of Fish and Wildlife (CDFW). 2.1 Identification of Jurisdictional Waters The vegetation, soils, and hydrology in the project area were mapped according to the Routine Determination Method outlined in the Corps Manual (Environmental Laboratory 1987), using updated data forms, vegetation sampling methods, and hydric soil and hydrology indicators developed for the Regional Supplement (USACE 2008a). This three-parameter approach to identifying wetlands is based on the presence of a prevalence or dominance of hydrophytic vegetation, hydric soils, and wetland hydrology. In addition to applying these survey methods, Mr. Gallagher compiled this report in accordance with guidance provided in Updated Map and Drawing Standards for the South Pacific Division Regulatory Program (USACE 2016a) and Information Requested for Verification of Corps Jurisdiction (USACE 2016b). These documents list the information that must be submitted as part of a request for a jurisdictional determination, including: • Vicinity map (Figure 1) • Parcel or study area map (Figure 2) • USGS quadrangle sheet (Figure 3) • Soils map (Figure 4) • National Wetlands Inventory map (Figure 5) • Vegetation communities map (Figure 6) • Delineation map (Figure 7) • Current soil survey report (Appendix A) • Plant species observed (Appendix B) • Arid West Wetland Determination Data Forms (Appendix C) • Written rationale for sample point choice (Section 3.2) • Color photos (Appendix D) • Aquatic resources table (Appendix E) During the survey, the parcel was examined for topographic features, drainages, alterations to hydrology or vegetation, and recent significant disturbance. A determination was then made as ^_Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure1_Vicinity_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 1.5 30.75 Miles K Figure 1 Project Vicinity Oakland San Francisco Richmond San Rafael Mill Valley San Pablo Sausalito San Francisco Bay ^_Project Location APN # 038-142-02Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure2_Parcel_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.15 0.30.075 Miles K Figure 2 Parcel Map Parcel Boundary Ring Mountain Preserve San Francisco BayPa r a d i s e D r i v e Trestle Glen B l v d \\EgnyteDrive\migcom\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure3_USGS_TOPO_Map_2022_0912.mxd 9/20/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.5 10.25 MilesK Figure 3 USGS Topo Map Parcel Boundary Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure4_Soils_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021; USDA 2022 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.15 0.30.075 Miles K Figure 4 Soil Map NRCS Soils Henneke stony clay loam, 15 to 50 percent slopes Los Osos-Bonnydoon complex, 15 to 30 percent slopes Los Osos-Bonnydoon complex, 30 to 50 percent slopes Tocaloma-Saurin association, very steep Xerorthents-Urban land complex, 0 to 9 percent slopes Water Parcel Boundary Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure5_NWI_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021; NWI 2022 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.25 0.50.125 Miles K Figure 5 National Wetlands Inventory Map Wetland Type Estuarine and Marine Deepwater Estuarine and Marine Wetland Freshwater Emergent Wetland Freshwater Pond Riverine Parcel Boundary 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 4 to whether normal environmental conditions were present at the time of the field survey. In the field, the techniques used to identify wetlands included observing the vegetation growing near the soil sample points and characterizing the current surface and subsurface hydrologic features present near the sample points through both observation of indicators and direct observation of hydrology. Features meeting wetland vegetation, soil, and hydrology criteria were then mapped in the field. Geospatial data were collected using a tablet with an Arrow 100 sub-meter GPS receiver and a geo-spatial mobile-device application. 2.2 Identification of Section 404 Jurisdictional Wetlands Where wetland field characteristics were present, Mr. Gallagher examined vegetation, soils, and hydrology using the Routine Determination Method outlined in the Corps Manual (Environmental Laboratory 1987) and the updated data forms, vegetation sampling methods, and hydric soil and hydrology indicators developed for the Regional Supplement (USACE 2008a). Hydrophytic Vegetation. Plants that can grow in soils that are saturated or inundated for long periods of time, which contain little or no oxygen when wetted, are considered adapted to those soils and are called hydrophytic. There are different levels of adaptation, as summarized in Table 2. Some plants can only grow in soils saturated with water (and depleted of oxygen), some are mostly found in this condition, and some are found equally in wet soils and in dry soils. Plants observed at each of the sample study areas were identified to species, where possible, using The Jepson Manual, Vascular Plans of California, Second Edition (Baldwin et al. 2012). The wetland indicator status of each species was obtained from the Arid West 2020 Regional Wetland Plant List (USACE 2020). Wetland indicator species are designated according to their frequency of occurrence in wetlands. For instance, a species with a presumed frequency of occurrence of 67 to 99 percent in wetlands is designated a facultative wetland indicator species. The wetland indicator groups, indicator symbol, and the frequency of occurrence of species, provided as a percentage, within wetlands are shown in Table 1. Table 1. Wetland Indicator Status Categories for Vascular Plants Indicator Category Symbol Frequency (Percent) of Occurrence in Wetlands1 Obligate OBL >99 (Almost always is a hydrophyte, rarely in uplands) Facultative wetland FACW 67 – 99 (Usually a hydrophyte but occasionally found in uplands) Facultative FAC 34 – 66 (Commonly occurs as either a hydrophyte or non-hydrophyte) Facultative upland FACU 1 – 33 (Occasionally is a hydrophyte, but usually occurs in uplands) Upland2 UPL <1% (Rarely is a hydrophyte, almost always in uplands) Not included2 NI Considered to be an upland species Obligate and facultative wetland indicator species are hydrophytes that occur “in areas where the frequency and duration of inundation or soil saturation produce permanently or periodically 1Based on information contained in the Corps Manual. 2Plant species that are not listed in the Arid West 2020 Regional Wetland Plant List (USACE 2020) are considered UPL species 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 5 saturated soils of sufficient duration to exert a controlling influence on the plant species present” (Environmental Laboratory 1987). Facultative indicator species may be considered wetland indicators when found growing in hydric soils that experience periodic saturation. Plant species that are not on the regional list of wetland indicator species are considered upland species. A complete list of the vascular plants observed in the parcel including their current indicator statuses, is provided in Appendix B. Hydric Soils. Up to 12 inches of the soil profile were examined for hydric soil indicators. The National Technical Committee for Hydric Soils (NTCHS) defines a hydric soil as one formed under conditions of saturation, flooding or ponding long enough during the growing season to develop anaerobic conditions in the upper 12 inches of soil (NRCS 2010). Hydric soils include soils developed under sufficiently wet conditions to support the growth and regeneration of hydrophytic vegetation. In general, evidence of a hydric soil includes characteristics such as organic soils (histosols), reducing soil conditions, gleyed soils, soils with bright mottles and/or low matrix chroma, soils listed as hydric by the U.S. Department of Agriculture (USDA) on the National Hydric Soils List (NRCS 2022b), and iron and manganese concretions. Reducing soil conditions can also include circumstances where there is evidence of frequent ponding for long or very long duration. A long duration is defined as a period of inundation for a single event that ranges from 7 days to a month and very long is greater than one month (Environmental Laboratory 1987). Munsell Soil Notations (Munsell 2009) were recorded for the soil matrix of each soil sample. The Munsell color system is based on three color properties: hue, value, and chroma. A brief description of each component of the system is described below, in the order they are used in describing soil color (i.e., hue/value/chroma): 1. Hue. The Munsell Soil Color Chart is divided into five principal hues: yellow (Y), green (G), purple (P), blue (B), and red (R), along with intermediate hues such as yellow-red (YR) and green-yellow (GY). Example of commonly encountered hue numbers include 2.5YR, 10YR, and 5Y. 2. Value. Value refers to lightness, ranging from white to grey to black. Common numerical values for value in the Munsell Soil Color Chart range from 2 for saturated soils to 8 for faded or light colors. Hydric soils often show low-value colors when soils have accumulated sufficient organic material to indicate development under wetland conditions but can show high-value colors when iron depletion has occurred, removing color value from the soil matrix. Value numbers are commonly reported as 8/, 2.5/, and 6/. 3. Chroma. Chroma describes the purity of the color, from “true” or “pure” colors to “pastel” or “washed out” colors. Chromas commonly range from 1 to 8 but can be higher for gleys. Soil matrix chroma values that are 1 or less, or 2 or less when mottling is present, are typical of soils that have developed under anaerobic conditions. Chroma numbers are listed, for example, as /1, /5, and /8. The NRCS Web Soil Survey (NRCS 2022a) was consulted to determine which soil types have been mapped in the parcel (Figure 4). Detailed descriptions of these soil types are provided in 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 6 Appendix A. Wetland Hydrology. Wetland hydrology is defined as an area that is inundated either permanently or periodically at mean water depths less than 6.6 feet, or where the soil is saturated at the surface at some time during the growing season of the prevalent vegetation. The period of inundation or soil saturation varies according to the hydrologic/soil moisture regime and occurs in both tidal and non-tidal situations. Wetland hydrology encompasses all hydrologic characteristics of areas that are periodically inundated or have soils saturated to the surface at some time during the growing season. Wetland hydrology indicators provide evidence that the study area has a continuing wetland hydrologic regime. Primary indicators might include visual observation of surface water (A1), high water table (A2), soil saturation (B1), water-stained leaves (B9), and hydrogen sulfide odor (C1). Secondary indicators might include riverine drift deposits (B3), drainage patterns (B10), and passing score for the FAC-neutral test (D5). Each of the sample points was examined for positive field indicators (primary and secondary) of wetland hydrology, following the guidance provided in the Regional Supplement. Potential jurisdictional wetlands were identified within the parcel. 2.3 Identification of Section 404 Jurisdictional Other Waters “Other waters” includes lakes, slough channels, seasonal ponds, tributary waters, non-wetland linear drainages, and salt ponds. Such areas are identified by the (seasonal or perennial) presence of standing or running water and generally lack hydrophytic vegetation. In non-tidal or muted tidal waters USACE jurisdiction extends to the ordinary high water mark (OHWM) which is defined in 33 CFR Part 328.3 as “the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation or the presence of litter and debris.” In tidal waters, USACE jurisdiction extends to the landward extent of vegetation associated with salt or brackish water or the high tide line (HTL) (see 33 CFR, Part 328.4). The HTL is defined in 33 CFR, Part 328.3 as “the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The HTL may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gauges, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.” Potential jurisdictional “other waters” were identified within the parcel. 2.4 Identification of Waters of the State The Porter-Cologne Water Quality Control Act (PWQCA) broadly defines waters of the state as “any surface water or groundwater, including saline waters, within the boundaries of the state.” Because PWQCA applies to any water, whereas the CWA applies only to certain waters, 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 7 California’s jurisdictional reach overlaps and may exceed the boundaries of waters of the U.S. For example, Water Quality Order No. 2004-0004-DWQ states that “shallow” waters of the state include headwaters, wetlands, and riparian areas. Where forested habitat occurs, the outer canopy of any riparian trees rooted within top of bank (TOB) may be considered jurisdictional as these trees can provide allochthonous3 input to the channel below. Potential waters of the state were identified within the parcel. 2.5 Identification of CDFW Jurisdiction Ephemeral and intermittent streams, rivers, creeks, dry washes, sloughs, blue line streams on USGS maps, and watercourses with subsurface flows fall under California Department of Fish and Wildlife (CDFW) jurisdiction. Canals, aqueducts, irrigation ditches, and other means of water conveyance may also be considered streams if they support aquatic life, riparian vegetation, or stream-dependent terrestrial wildlife. A stream is defined in Title 14, California Code of Regulations §1.72, as “a body of water that follows at least periodically or intermittently through a bed or channel having banks and that supports fish and other aquatic life. Jurisdiction does not include tidal areas such as tidal sloughs unless there is freshwater input. This includes watercourses having surface or subsurface flow that supports or has supported riparian vegetation.” Using this definition, CDFW extends its jurisdiction to encompass riparian habitats that function as a part of a watercourse. California Fish and Game Code §2786 defines riparian habitat as “lands which contain habitat which grows close to, and which depends upon soil moisture from a nearby freshwater source.” The lateral extent of a stream and associated riparian habitat that would fall under the jurisdiction of CDFW can be measured in several ways, depending on the situation and the type of fish or wildlife at risk. At a minimum, CDFW would claim jurisdiction over a stream’s bed and bank. Where riparian habitat is present, the outer edge of riparian vegetation is generally used as the line of demarcation between riparian and upland habitats. CDFW jurisdictional habitats were identified within the parcel. 3. Survey Results and Discussion A total of nine sample points (SP1 to SP5 and OHWM1a/b to OHWM 4a/b) were examined to identify jurisdictional features (Appendix C; Figure 7). In the parcel, 0.54 acres and 1,103 linear feet of ephemeral streams up to TOB, 0.027 acres of seasonal wetlands, and 0.51 acres of riparian habitat outside of TOB (Arroyo Willow Thickets) potentially regulated by USACE, RWQCB, and CDFW were identified. The results of the August 2022 delineation are described below and summarized in Table 2. The parcel is located within the Central Coast/San Francisco Bay Area Subregions of the 3Allochthonous is a term used describe nutrients and carbon that come from outside the aquatic system. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 8 Central Western Californian Region, both of which are contained within the larger California Floristic Province (Baldwin et al. 2012). Where applicable, vegetation communities were mapped using CDFW’s Vegetation Classification and Mapping Program’s (VegCAMP) currently accepted list of vegetation alliances and associations (CDFW 2022). Five natural communities and land cover types were identified in the parcel: (1) Rural-residential (2) Coast Live Oak Woodland and Forest Alliance, (3) Eucalyptus – Tree of Heaven – Black Locust Groves Semi- natural Alliance, (4) Coyote Brush Scrub Alliance, and (5) Arroyo Willow Thickets Alliance (Figure 6). Table 2. Summary of Potentially Jurisdictional Waters and Habitats within the Parcel Potentially Jurisdictional Waters Acres1 USACE Jurisdictional Total 0.25 Ephemeral Streams (ES1 & ES2) (up to OHWM) 0.22 Seasonal Wetlands (SW1 & SW2) 0.027 RWQCB Jurisdiction Total 0.54 Ephemeral Stream (ES1 & ES2) (up to TOB) 0.51 Seasonal Wetlands (SW1 & SW2) 0.027 CDFW Jurisdiction Total 1.05 Ephemeral Stream (ES1 & ES2) (up to TOB) 0.51 Seasonal Wetlands (SW1 & SW2) 0.027 Arroyo Willow Thickets (riparian habitat) – outside TOB 0.51 1Note: Values are approximate due to rounding. 3.1 Precipitation Data The survey took place during the dry season. Total estimated precipitation at the project area from February 2022 to July 2022 was 3.7 inches, which was approximately 20% of 30-year average (1986-2015) for the same period, which was drier than normal to normal conditions (Deters 2022). The region was experiencing an extreme to moderate drought as estimated by the Palmer Drought Severity Index (PDSI). The drier than normal to normal conditions were considered when assessing the biotic habitats present in the parcel. The boundaries of waters remained clear owing to the presence of hydrology indicators and hydrophytic vegetation. 3.2 Rationale for Sample Point Choice OHWM1a/b and OHWM2a/b were selected to delineate the OHWM in the lower and upper reaches of ephemeral drainage ES1 (Figure 7; Photos 1 and 2 in Appendix D). Most of ES1 is within the rural-residential land cover and no riparian habitat is present beyond the channel at its outlet, which is within the Willow Thickets Alliance (Figure 7). Geomorphic field indicators of the OHWM included exposed root hairs and roots below an intact soil layer, break in bank slope, natural line impressed on the bank, and drift (organic and non-organic debris). Vegetative field indicators of the OHWM included vegetation stripped from active areas of the channel, vegetation below OHWM that starts to thicken above OHWM due to lack of disturbance from Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure6_Vegetation_Communities_Map_2022_0912.mxd 9/20/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 200 400100Feet K Figure 6 Vegetation Communities Map San Francisco Bay Pa r a d i s e D r i v e Parcel Boundary Coast Live Oak Woodland and Forest Alliance Coyote Brush Scrub Alliance Eucalyptus-Tree of Heaven- Black Locust Groves Semi-Natural Alliance Seasonal Wetland Rural-residential Willow Thickets Alliance Swale Ephemeral Stream !(!(!(!( !( !( !( !( !( !( !( !( !( !(!( !(!( !(!( !(!( !( !( !( !(!(SP1 SP2 SP5 SP4 SP3 SW1 SW2 4b 4a 3b 3a 2b 2a 1b 1a PP 6 PP 9 PP 8 PP 7 PP 5 C4 C3 C2 C1Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure7_Delineation_Map_2022_0912.mxd 9/20/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 150 30075Feet K Figure 7 Preliminary Identification of Waters of the U.S./State Paradise D r Parcel Boundary Coast Live Oak Woodland and Forest Alliance Coyote Brush Scrub Alliance Eucalyptus-Tree of Heaven- Black Locust Groves Semi-Natural Alliance Rural-residential Seasonal Wetland Willow Thickets Alliance High Tide Line OrdinaryHigh Water Mark (OHWM) Top of Bank Swale !(OHWM Sample Point !(PP- Photo Point !(SP- Wetland Sample Point !(Culvert !(!(!(!( !( !(!( !( !(!( SP1 SP2 SP3 SW1 2b 2a PP 7 !(!( !( !(!(SP5SW23b PP 6 PP 8 ES2 ES1 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 9 moderate events, and areas above the OHWM fully vegetated due to lack of disturbance by moderate events. OHWM3a/b and OHWM4a/b were selected to delineate the OHWM in the lower and upper reaches of ephemeral drainage ES2 (Figure 7; Photos 3 and 4 in Appendix D). The banks and channel of ES2 within the Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance were generally devoid of understory vegetation due to a thick layer of bark litter and the shading of the mature eucalyptus trees. The channel was generally sparsely vegetated except near OHWM3. No riparian habitat is present beyond the channel except near its outlet, which is adjacent to the Willow Thickets Alliance (Figure 7). Geomorphic field indicators of the OHWM included exposed root hairs and roots below an intact soil layer, break in bank slope, and drift (organic and non-organic debris). Vegetative field indicators of the OHWM included vegetation stripped from active areas of the channel, vegetation below OHWM that starts to thicken above OHWM due to lack of disturbance from moderate events, and areas above the OHWM fully vegetated due to lack of disturbance by moderate events. SP1 was selected to examine the section of ephemeral drainage ES1 dominated by hydrophytic vegetation (Figure 7; Appendix C). Vegetation present included Italian rye grass (Festuca perennis; FAC), rabbitsfoot grass (Polypogon monspeliensis; FACW), slender rush (Juncus tenuis; FACW), and tall flatsedge (Cyperus eragrostis; FACW). Hydric soil indictors observed included redox depressions in the matrix and pore linings. Hydrological indicators, including drainage patterns and the FAC-Neutral Test were observed. SP2 was selected to examine the section of ephemeral drainage ES1 where hydrophytic vegetation is intermixed with upland vegetation downstream of SP1 (Figure 7; Appendix C). Vegetation present included little rattlesnake grass (Briza minor), Italian rye grass, and ripgut brome (Bromus diandrus; UPL). Hydric soil indicators observed included redox depressions but did not meet the threshold for classification of a hydric soil. Hydrological indicators, drainage patterns and sediment deposits were observed. SP3 was selected to examine the upland area adjacent to ES1 (Figure 7; Appendix C). Vegetation present included little rattlesnake grass and slender oat (Avena barbata; UPL). No hydric soil or hydrological indicators were observed at this sample point. SP4 was selected to examine the swale below culvert C1 (Figure 7; Appendix C). Vegetation present included little rattlesnake grass and slender oat. No hydric soil or hydrological indicators were observed at this sample point. SP5 was selected to investigate where ephemeral drainage ES2 empties onto the beach just above the HTL (Figure 7; Appendix C). Vegetation present included Italian thistle (Carduus pycnocephalus; UPL), pennyroyal (Mentha pulegium; OBL), and spiny sowthistle (Sonchus asper; FAC). Hydric soils were not observed but the substrate was composed of rocky material and sand (riverwash) likely transported by movement of water in the stream. Hydrological indicators observed included drainage patterns, the FAC-Neutral Test, and sediment deposits. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 10 3.3 Project Area Conditions and Observations This preliminary delineation assumes that normal circumstances prevailed at the time of the August 2022 delineation, and the results are based upon the conditions present. The survey was performed using the “Routine Method of Determination” using three parameters, as outlined in the Regional Supplement. The parcel is situated on a moderately sloping hillside with several swales. Some of these swales may convey flows during or immediately after rain events due to their low topographic positions. However, these swales did not have a well-defined bed, bank, and channel, indicating ephemeral and low volume flow patterns. However, they were mapped to illustrate possible flow patterns within the parcel (Figure 7; Photo 5 in Appendix D). Culvert C1 likely collects runoff from Paradise Drive and residential development upslope of the parcel into the swales just downslope of the culvert as well as down the dirt access road into the ephemeral drainage ES1 (Figure 7). Culverts C2, C3, and C4 likely collect runoff from Paradise Drive, up-slope residential development, and surrounding open space areas west of the parcel. The HTL was delineated to indicate the jurisdictional limit of tidal waters in the parcel. The HTL was identified in the field by the wrack line, presence of hydrophytic vegetation, elevation, and limits of bank erosion. The wrack consisted of organic and non-organic materials, crustacean shells, and litter (Figure 7; Photo 8 in Appendix D). In some areas along the shoreline, the HTL corresponded to the limit of coastal marsh vegetation (Photo 9 in Appendix D). Vegetation included coastal gumweed (Grindelia stricta; FACW), cordgrass (Spartina sp.; OBL), fat hen (Atriplex prostrata; FACW), perennial pepperweed (Lepidium latifolium; FAC), pickleweed (Salicornia pacifica; OBL), and saltgrass (Distichlis spicata; FAC). The HTL was not delineated along the southern section of the shoreline due to the presence of vertical cliffs. 3.4 Photo Points Photo point labels, coordinates, and rationale for the photos are include in Table 3. Photos are included in Appendix D. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 11 Table 3. Coordinates and Rationale for Photo Points Label Latitude Longitude Rationale Photo 1 37.909090° -122.476945° OHWM1 Photo 2 37.909295° -122.477961° OHWM2 Photo 3 37.908269° -122.477023° OHWM3 Photo 4 37.908650° -122.478451° OHWM4 Photo 5 37.909796° -122.477258° Swale topography Photo 6 37.908342° -122.477243° Ephemeral drainage ES2, SW2, and Arroyo Willow Thickets Photo 7 37.909244° -122.477883° Ephemeral drainage ES1 and SW1 Photo 8 37.908321° -122.476750° HTL Photo 9 37.909087° -122.476787° Coastal salt marsh 3.5 Identification of Section 404 Potentially Jurisdictional Waters Approximately 0.22 acres (ES1 and ES2) and 1,103 linear feet (0.05 aces and 328 feet for ES1 and 0.17 acres and 775 feet for ES2) of Section 404 other waters (ephemeral stream) were mapped in the parcel up to the OHWM (Figure 7; Photos 6 and 7, Appendix D). Ephemeral Stream (ES1 and ES2). Both ephemeral streams flow in a west to east direction and empty into San Francisco Bay. No water was observed in the streams at the time of the delineation, but evidence of recurrent water flow through the stream was observed in the form of a defined bed and bank. Ephemeral streams only flow during or immediately after rain events and both streams receive runoff from swales and sheet flow from surrounding upland areas Sections of the ephemeral streams may retain moisture longer than the surrounding upland areas and some areas may be mesic, especially in spring. At the time of the survey, no evidence of tidal action was observed within both streams. At the confluence of the streams and San Francisco Bay, both channels are above the HTL due to significant difference in elevation. Therefore, it is likely that both streams are not subject to regular tidal action. However, storm surge along with a king tide may result in temporary tidal inundation of both streams. 3.6 Identification of Section 404 Potentially Jurisdictional Wetlands Approximately 0.027 acres of Section 404 wetlands (seasonal wetlands, SW1 (0.023 acres) and SW2 (0.004 acres) were observed within the ephemeral streams: SW1 was located within the OHWM of ES1 and SW2 was located within the OHWM of SW2 (Figure 7; Photos 6 and 7, Appendix D). Seasonal Wetland (SW1 and SW2). Seasonal wetlands are generally inundated by shallow water, or have high groundwater levels, for variable periods from winter to spring, but they may be completely dry for most of the summer and fall. Dominant vegetation can include strongly 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 12 hydrophytic vegetation when the wetland is inundated or saturated and non-hydrophytic, upland species after the wetland dries out. 3.7 Identification of Potentially Jurisdictional Waters of the State The extent of Section 401 waters of the state (RWQCB jurisdiction) in the project area includes a total of 0.54 acres, including 0.25 acres within Section 404 jurisdiction as described above and an additional 0.29 acres of habitat up to the TOB of ES1 and ES2, including 0.20 acres of Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance, 0.053 acres of rural- residential, 0.029 acres of Arroyo Willow Thickets, and 0.013 acres of Coast Live Oak Woodland and Forest Alliance (Figure 7; Photos 6 and 7, Appendix D). Characteristics of waters of the U.S are described above in Sections 3.5 and 3.6. In the field, TOB was identified as the first distinct break in the bank slope above the active flood plain of the stream. The active floodplain is the area (e.g., bank or terrace) adjacent to and receiving frequent over-bank flow from the low-flow channel. The limits of the active flood plain were determined by evidence of scour along the stream banks, break in slope, a textural change in substrate (e.g., from cobble to a finer-grained matrix), and an increase in vegetative cover and maturity above the active flood plain. The current practice of the San Francisco RWQCB is to claim all areas up to the top of bank, but it may also claim riparian habitat that extends beyond the top of bank and areas within the 100-year flood plain. 3.8 Identification of CDFW Potentially Jurisdictional Habitats The parcel contains two ephemeral streams with defined bed and bank topography along with associated riparian habitat, as defined by CDFW. Riparian habitat was mapped by the dripline of trees at the outer extent of riparian vegetation. Streambed features were mapped by the top of bank (which can extend beyond the OHWM that is used to measure the extent of waters of the U.S.). The extent of CDFW jurisdiction includes all waters of the state (0.54 acres) as described in Section 3.7 above and an additional 0.51 acres of Arroyo Willow Thickets that extend beyond the TOB of the ephemeral streams. The extent of riparian habitat beyond the TOB was determined by the outer dripline of riparian vegetation (Figure 7; Photo 6, Appendix D). 4. References Baldwin, Goldman, Keil, Patterson, Ronatti, and Wilkin (eds.) 2012. The Jepson Manual: Vascular Plants of California. 2nd Edition. University of California Press, Berkeley, California. [CDFW] California Department of Fish and Wildlife. 2022. VegCAMP Natural Communities Lists. Accessed August 2022 from https://www.wildlife.ca.gov/data/vegcamp/natural-communities. Cowardin, L. M., V. Carter, F. C. Golet, and E. T. LaRoe. 1979. Classification of Wetlands and Deepwater Habitats of the United States. U. S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. Jamestown, ND: Northern Prairie Wildlife Research Center Home Page. (Version 04DEC98). 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 13 Deters, J. 2022. Antecedent Precipitation Tool (Version 1.0). U.S. Army Corps of Engineers Regulatory Program. Environmental Laboratory. 1987. U.S. Corps of Engineers Wetlands Delineation Manual. Department of the Army. Google Inc. 2022. Google Earth Pro (Version 7.1.5.1557) [Software]. Available from earth.google.com. Munsell. 2009. Soil Color Charts, Munsell Color X-rite. Grand Rapids, Michigan. [NRCS] Natural Resources Conservation Service. 2010. Field Indicators of Hydric Soils in the U.S.: A Guide for Identifying and Delineating Hydric Soils (Version 7.0). U.S. Department of Agriculture. Prepared with the National Technical Committee for Hydric Soils. [NRCS] Natural Resources Conservation Service. 2022a. Web Soil Survey. U.S. Department of Agriculture. Accessed September 022 from http://websoilsurvey.nrcs.usda.gov. [NRCS] National Resource Conservation Service. 2022b. National Hydric Soils List. Accessed September 2022 from http://www.nrcs.usda.gov/wps/portal/nrcs/main/soils/use/hydric/. [NWI] National Wetlands Inventory. 2022. Wetlands Mapper. U.S. Fish and Wildlife Service Accessed September 2022 from http://www.fws.gov/wetlands/Wetlands-Mapper.html. [USACE] U.S. Army Corps of Engineers. 2008a. U.S. Army Corps of Engineers. 2008. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0), ed. J. S. Wakeley, R. W. Lichvar, and C. V. Noble. ERDC/EL TR-08-28. Vicksburg, MS: U.S. Army Engineer Research and Development Center. [USACE] U.S. Army Corps of Engineers. 2008b. A Field Guide to the Identification of the Ordinary High-Water Mark (OHWM) in the Arid West Region of the Western United States. August 2008. U.S. Army Engineer Research and Development Center. USACE] U.S. Army Corps of Engineers. 2016a. Updated Map and Drawing Standards for the South Pacific Division Regulatory Program. [USACE] U.S. Army Corps of Engineers. 2016b. Information Needed for Verification of Corps Jurisdiction, San Francisco District. Revised April 2016. https://www.spn.usace.army.mil/Portals/68/docs/regulatory/2%20-%20Info%20Req.pdf [USACE] U.S. Army Corps of Engineers 2020. National Wetland Plant List, version 3.5. Accessed August 2022 from http://wetland-plants.usace.army.mil/. U.S. Army Corps of Engineers Engineer Research and Development Center Cold Regions Research and Engineering Laboratory, Hanover, NH. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 14 Appendix A: Soil Survey Report United States Department of Agriculture A product of the National Cooperative Soil Survey, a joint effort of the United States Department of Agriculture and other Federal agencies, State agencies including the Agricultural Experiment Stations, and local participants Custom Soil Resource Report forMarin County, California 4576 Paradise Drive Tiburon CA NaturalResourcesConservationService August 30, 2022 Preface Soil surveys contain information that affects land use planning in survey areas. They highlight soil limitations that affect various land uses and provide information about the properties of the soils in the survey areas. Soil surveys are designed for many different users, including farmers, ranchers, foresters, agronomists, urban planners, community officials, engineers, developers, builders, and home buyers. Also, conservationists, teachers, students, and specialists in recreation, waste disposal, and pollution control can use the surveys to help them understand, protect, or enhance the environment. Various land use regulations of Federal, State, and local governments may impose special restrictions on land use or land treatment. Soil surveys identify soil properties that are used in making various land use or land treatment decisions. The information is intended to help the land users identify and reduce the effects of soil limitations on various land uses. The landowner or user is responsible for identifying and complying with existing laws and regulations. Although soil survey information can be used for general farm, local, and wider area planning, onsite investigation is needed to supplement this information in some cases. Examples include soil quality assessments (http://www.nrcs.usda.gov/wps/ portal/nrcs/main/soils/health/) and certain conservation and engineering applications. For more detailed information, contact your local USDA Service Center (https://offices.sc.egov.usda.gov/locator/app?agency=nrcs) or your NRCS State Soil Scientist (http://www.nrcs.usda.gov/wps/portal/nrcs/detail/soils/contactus/? cid=nrcs142p2_053951). Great differences in soil properties can occur within short distances. Some soils are seasonally wet or subject to flooding. Some are too unstable to be used as a foundation for buildings or roads. Clayey or wet soils are poorly suited to use as septic tank absorption fields. A high water table makes a soil poorly suited to basements or underground installations. The National Cooperative Soil Survey is a joint effort of the United States Department of Agriculture and other Federal agencies, State agencies including the Agricultural Experiment Stations, and local agencies. The Natural Resources Conservation Service (NRCS) has leadership for the Federal part of the National Cooperative Soil Survey. Information about soils is updated periodically. Updated information is available through the NRCS Web Soil Survey, the site for official soil survey information. The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or a part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require 2 alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. 3 Contents Preface....................................................................................................................2 How Soil Surveys Are Made..................................................................................5 Soil Map..................................................................................................................8 Soil Map................................................................................................................9 Legend................................................................................................................10 Map Unit Legend................................................................................................11 Map Unit Descriptions.........................................................................................11 Marin County, California..................................................................................13 141—Los Osos-Bonnydoon complex, 15 to 30 percent slopes..................13 References............................................................................................................16 4 How Soil Surveys Are Made Soil surveys are made to provide information about the soils and miscellaneous areas in a specific area. They include a description of the soils and miscellaneous areas and their location on the landscape and tables that show soil properties and limitations affecting various uses. Soil scientists observed the steepness, length, and shape of the slopes; the general pattern of drainage; the kinds of crops and native plants; and the kinds of bedrock. They observed and described many soil profiles. A soil profile is the sequence of natural layers, or horizons, in a soil. The profile extends from the surface down into the unconsolidated material in which the soil formed or from the surface down to bedrock. The unconsolidated material is devoid of roots and other living organisms and has not been changed by other biological activity. Currently, soils are mapped according to the boundaries of major land resource areas (MLRAs). MLRAs are geographically associated land resource units that share common characteristics related to physiography, geology, climate, water resources, soils, biological resources, and land uses (USDA, 2006). Soil survey areas typically consist of parts of one or more MLRA. The soils and miscellaneous areas in a survey area occur in an orderly pattern that is related to the geology, landforms, relief, climate, and natural vegetation of the area. Each kind of soil and miscellaneous area is associated with a particular kind of landform or with a segment of the landform. By observing the soils and miscellaneous areas in the survey area and relating their position to specific segments of the landform, a soil scientist develops a concept, or model, of how they were formed. Thus, during mapping, this model enables the soil scientist to predict with a considerable degree of accuracy the kind of soil or miscellaneous area at a specific location on the landscape. Commonly, individual soils on the landscape merge into one another as their characteristics gradually change. To construct an accurate soil map, however, soil scientists must determine the boundaries between the soils. They can observe only a limited number of soil profiles. Nevertheless, these observations, supplemented by an understanding of the soil-vegetation-landscape relationship, are sufficient to verify predictions of the kinds of soil in an area and to determine the boundaries. Soil scientists recorded the characteristics of the soil profiles that they studied. They noted soil color, texture, size and shape of soil aggregates, kind and amount of rock fragments, distribution of plant roots, reaction, and other features that enable them to identify soils. After describing the soils in the survey area and determining their properties, the soil scientists assigned the soils to taxonomic classes (units). Taxonomic classes are concepts. Each taxonomic class has a set of soil characteristics with precisely defined limits. The classes are used as a basis for comparison to classify soils systematically. Soil taxonomy, the system of taxonomic classification used in the United States, is based mainly on the kind and character of soil properties and the arrangement of horizons within the profile. After the soil 5 scientists classified and named the soils in the survey area, they compared the individual soils with similar soils in the same taxonomic class in other areas so that they could confirm data and assemble additional data based on experience and research. The objective of soil mapping is not to delineate pure map unit components; the objective is to separate the landscape into landforms or landform segments that have similar use and management requirements. Each map unit is defined by a unique combination of soil components and/or miscellaneous areas in predictable proportions. Some components may be highly contrasting to the other components of the map unit. The presence of minor components in a map unit in no way diminishes the usefulness or accuracy of the data. The delineation of such landforms and landform segments on the map provides sufficient information for the development of resource plans. If intensive use of small areas is planned, onsite investigation is needed to define and locate the soils and miscellaneous areas. Soil scientists make many field observations in the process of producing a soil map. The frequency of observation is dependent upon several factors, including scale of mapping, intensity of mapping, design of map units, complexity of the landscape, and experience of the soil scientist. Observations are made to test and refine the soil-landscape model and predictions and to verify the classification of the soils at specific locations. Once the soil-landscape model is refined, a significantly smaller number of measurements of individual soil properties are made and recorded. These measurements may include field measurements, such as those for color, depth to bedrock, and texture, and laboratory measurements, such as those for content of sand, silt, clay, salt, and other components. Properties of each soil typically vary from one point to another across the landscape. Observations for map unit components are aggregated to develop ranges of characteristics for the components. The aggregated values are presented. Direct measurements do not exist for every property presented for every map unit component. Values for some properties are estimated from combinations of other properties. While a soil survey is in progress, samples of some of the soils in the area generally are collected for laboratory analyses and for engineering tests. Soil scientists interpret the data from these analyses and tests as well as the field-observed characteristics and the soil properties to determine the expected behavior of the soils under different uses. Interpretations for all of the soils are field tested through observation of the soils in different uses and under different levels of management. Some interpretations are modified to fit local conditions, and some new interpretations are developed to meet local needs. Data are assembled from other sources, such as research information, production records, and field experience of specialists. For example, data on crop yields under defined levels of management are assembled from farm records and from field or plot experiments on the same kinds of soil. Predictions about soil behavior are based not only on soil properties but also on such variables as climate and biological activity. Soil conditions are predictable over long periods of time, but they are not predictable from year to year. For example, soil scientists can predict with a fairly high degree of accuracy that a given soil will have a high water table within certain depths in most years, but they cannot predict that a high water table will always be at a specific level in the soil on a specific date. After soil scientists located and identified the significant natural bodies of soil in the survey area, they drew the boundaries of these bodies on aerial photographs and Custom Soil Resource Report 6 identified each as a specific map unit. Aerial photographs show trees, buildings, fields, roads, and rivers, all of which help in locating boundaries accurately. Custom Soil Resource Report 7 Soil Map The soil map section includes the soil map for the defined area of interest, a list of soil map units on the map and extent of each map unit, and cartographic symbols displayed on the map. Also presented are various metadata about data used to produce the map, and a description of each soil map unit. 8 9 Custom Soil Resource ReportSoil Map 41956504195690419573041957704195810419585041958904195930419597041960104195650419569041957304195770419581041958504195890419593041959704196010545790 545830 545870 545910 545950 545990 546030 545790 545830 545870 545910 545950 545990 546030 37° 54' 37'' N 122° 28' 45'' W37° 54' 37'' N122° 28' 33'' W37° 54' 25'' N 122° 28' 45'' W37° 54' 25'' N 122° 28' 33'' WN Map projection: Web Mercator Corner coordinates: WGS84 Edge tics: UTM Zone 10N WGS84 0 50 100 200 300Feet 0 25 50 100 150Meters Map Scale: 1:1,820 if printed on A portrait (8.5" x 11") sheet. Soil Map may not be valid at this scale. MAP LEGEND MAP INFORMATION Area of Interest (AOI) Area of Interest (AOI) Soils Soil Map Unit Polygons Soil Map Unit Lines Soil Map Unit Points Special Point Features Blowout Borrow Pit Clay Spot Closed Depression Gravel Pit Gravelly Spot Landfill Lava Flow Marsh or swamp Mine or Quarry Miscellaneous Water Perennial Water Rock Outcrop Saline Spot Sandy Spot Severely Eroded Spot Sinkhole Slide or Slip Sodic Spot Spoil Area Stony Spot Very Stony Spot Wet Spot Other Special Line Features Water Features Streams and Canals Transportation Rails Interstate Highways US Routes Major Roads Local Roads Background Aerial Photography The soil surveys that comprise your AOI were mapped at 1:24,000. Warning: Soil Map may not be valid at this scale. Enlargement of maps beyond the scale of mapping can cause misunderstanding of the detail of mapping and accuracy of soil line placement. The maps do not show the small areas of contrasting soils that could have been shown at a more detailed scale. Please rely on the bar scale on each map sheet for map measurements. Source of Map: Natural Resources Conservation ServiceWeb Soil Survey URL: Coordinate System: Web Mercator (EPSG:3857) Maps from the Web Soil Survey are based on the Web Mercator projection, which preserves direction and shape but distorts distance and area. A projection that preserves area, such as the Albers equal-area conic projection, should be used if more accurate calculations of distance or area are required. This product is generated from the USDA-NRCS certified data as of the version date(s) listed below. Soil Survey Area: Marin County, CaliforniaSurvey Area Data: Version 15, Sep 9, 2021 Soil map units are labeled (as space allows) for map scales 1:50,000 or larger. Date(s) aerial images were photographed: Mar 7, 2021—Mar 31, 2021 The orthophoto or other base map on which the soil lines were compiled and digitized probably differs from the background imagery displayed on these maps. As a result, some minor shifting of map unit boundaries may be evident. Custom Soil Resource Report 10 Map Unit Legend Map Unit Symbol Map Unit Name Acres in AOI Percent of AOI 141 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 9.1 100.0% Totals for Area of Interest 9.1 100.0% Map Unit Descriptions The map units delineated on the detailed soil maps in a soil survey represent the soils or miscellaneous areas in the survey area. The map unit descriptions, along with the maps, can be used to determine the composition and properties of a unit. A map unit delineation on a soil map represents an area dominated by one or more major kinds of soil or miscellaneous areas. A map unit is identified and named according to the taxonomic classification of the dominant soils. Within a taxonomic class there are precisely defined limits for the properties of the soils. On the landscape, however, the soils are natural phenomena, and they have the characteristic variability of all natural phenomena. Thus, the range of some observed properties may extend beyond the limits defined for a taxonomic class. Areas of soils of a single taxonomic class rarely, if ever, can be mapped without including areas of other taxonomic classes. Consequently, every map unit is made up of the soils or miscellaneous areas for which it is named and some minor components that belong to taxonomic classes other than those of the major soils. Most minor soils have properties similar to those of the dominant soil or soils in the map unit, and thus they do not affect use and management. These are called noncontrasting, or similar, components. They may or may not be mentioned in a particular map unit description. Other minor components, however, have properties and behavioral characteristics divergent enough to affect use or to require different management. These are called contrasting, or dissimilar, components. They generally are in small areas and could not be mapped separately because of the scale used. Some small areas of strongly contrasting soils or miscellaneous areas are identified by a special symbol on the maps. If included in the database for a given area, the contrasting minor components are identified in the map unit descriptions along with some characteristics of each. A few areas of minor components may not have been observed, and consequently they are not mentioned in the descriptions, especially where the pattern was so complex that it was impractical to make enough observations to identify all the soils and miscellaneous areas on the landscape. The presence of minor components in a map unit in no way diminishes the usefulness or accuracy of the data. The objective of mapping is not to delineate pure taxonomic classes but rather to separate the landscape into landforms or landform segments that have similar use and management requirements. The delineation of such segments on the map provides sufficient information for the development of resource plans. If intensive use of small areas is planned, however, onsite investigation is needed to define and locate the soils and miscellaneous areas. Custom Soil Resource Report 11 An identifying symbol precedes the map unit name in the map unit descriptions. Each description includes general facts about the unit and gives important soil properties and qualities. Soils that have profiles that are almost alike make up a soil series. Except for differences in texture of the surface layer, all the soils of a series have major horizons that are similar in composition, thickness, and arrangement. Soils of one series can differ in texture of the surface layer, slope, stoniness, salinity, degree of erosion, and other characteristics that affect their use. On the basis of such differences, a soil series is divided into soil phases. Most of the areas shown on the detailed soil maps are phases of soil series. The name of a soil phase commonly indicates a feature that affects use or management. For example, Alpha silt loam, 0 to 2 percent slopes, is a phase of the Alpha series. Some map units are made up of two or more major soils or miscellaneous areas. These map units are complexes, associations, or undifferentiated groups. A complex consists of two or more soils or miscellaneous areas in such an intricate pattern or in such small areas that they cannot be shown separately on the maps. The pattern and proportion of the soils or miscellaneous areas are somewhat similar in all areas. Alpha-Beta complex, 0 to 6 percent slopes, is an example. An association is made up of two or more geographically associated soils or miscellaneous areas that are shown as one unit on the maps. Because of present or anticipated uses of the map units in the survey area, it was not considered practical or necessary to map the soils or miscellaneous areas separately. The pattern and relative proportion of the soils or miscellaneous areas are somewhat similar. Alpha-Beta association, 0 to 2 percent slopes, is an example. An undifferentiated group is made up of two or more soils or miscellaneous areas that could be mapped individually but are mapped as one unit because similar interpretations can be made for use and management. The pattern and proportion of the soils or miscellaneous areas in a mapped area are not uniform. An area can be made up of only one of the major soils or miscellaneous areas, or it can be made up of all of them. Alpha and Beta soils, 0 to 2 percent slopes, is an example. Some surveys include miscellaneous areas. Such areas have little or no soil material and support little or no vegetation. Rock outcrop is an example. Custom Soil Resource Report 12 Marin County, California 141—Los Osos-Bonnydoon complex, 15 to 30 percent slopes Map Unit Setting National map unit symbol: hf2f Elevation: 50 to 1,500 feet Mean annual precipitation: 25 to 35 inches Mean annual air temperature: 59 to 63 degrees F Frost-free period: 270 to 320 days Farmland classification: Not prime farmland Map Unit Composition Los osos and similar soils:60 percent Bonnydoon and similar soils:20 percent Minor components:17 percent Estimates are based on observations, descriptions, and transects of the mapunit. Description of Los Osos Setting Landform:Hills Landform position (two-dimensional):Backslope Landform position (three-dimensional):Side slope Down-slope shape:Concave Across-slope shape:Convex Parent material:Residuum weathered from sandstone and shale Typical profile H1 - 0 to 18 inches: loam H2 - 18 to 38 inches: clay H3 - 38 to 42 inches: bedrock Properties and qualities Slope:15 to 30 percent Depth to restrictive feature:20 to 40 inches to paralithic bedrock Drainage class:Well drained Runoff class: Very high Capacity of the most limiting layer to transmit water (Ksat):Moderately low to moderately high (0.06 to 0.20 in/hr) Depth to water table:More than 80 inches Frequency of flooding:None Frequency of ponding:None Available water supply, 0 to 60 inches: Low (about 5.7 inches) Interpretive groups Land capability classification (irrigated): 4e Land capability classification (nonirrigated): 4e Hydrologic Soil Group: D Ecological site: R015XC032CA - FINE LOAMY CLAYPAN Hydric soil rating: No Description of Bonnydoon Setting Landform:Hills Custom Soil Resource Report 13 Landform position (two-dimensional):Backslope Landform position (three-dimensional):Side slope Down-slope shape:Concave Across-slope shape:Concave Parent material:Residuum weathered from shale, or sandstone Typical profile H1 - 0 to 15 inches: gravelly loam H2 - 15 to 19 inches: bedrock Properties and qualities Slope:15 to 30 percent Depth to restrictive feature:10 to 20 inches to paralithic bedrock Drainage class:Somewhat excessively drained Runoff class: High Capacity of the most limiting layer to transmit water (Ksat):Moderately high to high (0.57 to 1.98 in/hr) Depth to water table:More than 80 inches Frequency of flooding:None Frequency of ponding:None Available water supply, 0 to 60 inches: Very low (about 1.9 inches) Interpretive groups Land capability classification (irrigated): 6e Land capability classification (nonirrigated): 6e Hydrologic Soil Group: D Ecological site: R015XC037CA - SHALLOW GRAVELLY LOAM Hydric soil rating: No Minor Components Tocaloma Percent of map unit:2 percent Hydric soil rating: No Slumps Percent of map unit:2 percent Hydric soil rating: No Slopes less than 15 percent Percent of map unit:2 percent Hydric soil rating: No Yorkville Percent of map unit:2 percent Hydric soil rating: No Unnamed, deep Percent of map unit:2 percent Hydric soil rating: No Unnamed, shallow Percent of map unit:2 percent Hydric soil rating: No Unnamed, gravelly Percent of map unit:2 percent Hydric soil rating: No Custom Soil Resource Report 14 Saurin Percent of map unit:2 percent Hydric soil rating: No Unnamed Percent of map unit:1 percent Landform:Depressions Hydric soil rating: Yes Custom Soil Resource Report 15 References American Association of State Highway and Transportation Officials (AASHTO). 2004. Standard specifications for transportation materials and methods of sampling and testing. 24th edition. American Society for Testing and Materials (ASTM). 2005. Standard classification of soils for engineering purposes. ASTM Standard D2487-00. Cowardin, L.M., V. Carter, F.C. Golet, and E.T. LaRoe. 1979. Classification of wetlands and deep-water habitats of the United States. U.S. Fish and Wildlife Service FWS/OBS-79/31. Federal Register. July 13, 1994. Changes in hydric soils of the United States. Federal Register. September 18, 2002. Hydric soils of the United States. Hurt, G.W., and L.M. Vasilas, editors. Version 6.0, 2006. Field indicators of hydric soils in the United States. National Research Council. 1995. Wetlands: Characteristics and boundaries. Soil Survey Division Staff. 1993. Soil survey manual. Soil Conservation Service. U.S. Department of Agriculture Handbook 18. http://www.nrcs.usda.gov/wps/portal/ nrcs/detail/national/soils/?cid=nrcs142p2_054262 Soil Survey Staff. 1999. Soil taxonomy: A basic system of soil classification for making and interpreting soil surveys. 2nd edition. Natural Resources Conservation Service, U.S. Department of Agriculture Handbook 436. http:// www.nrcs.usda.gov/wps/portal/nrcs/detail/national/soils/?cid=nrcs142p2_053577 Soil Survey Staff. 2010. Keys to soil taxonomy. 11th edition. U.S. Department of Agriculture, Natural Resources Conservation Service. http:// www.nrcs.usda.gov/wps/portal/nrcs/detail/national/soils/?cid=nrcs142p2_053580 Tiner, R.W., Jr. 1985. Wetlands of Delaware. U.S. Fish and Wildlife Service and Delaware Department of Natural Resources and Environmental Control, Wetlands Section. United States Army Corps of Engineers, Environmental Laboratory. 1987. Corps of Engineers wetlands delineation manual. Waterways Experiment Station Technical Report Y-87-1. United States Department of Agriculture, Natural Resources Conservation Service. National forestry manual. http://www.nrcs.usda.gov/wps/portal/nrcs/detail/soils/ home/?cid=nrcs142p2_053374 United States Department of Agriculture, Natural Resources Conservation Service. National range and pasture handbook. http://www.nrcs.usda.gov/wps/portal/nrcs/ detail/national/landuse/rangepasture/?cid=stelprdb1043084 16 United States Department of Agriculture, Natural Resources Conservation Service. National soil survey handbook, title 430-VI. http://www.nrcs.usda.gov/wps/portal/ nrcs/detail/soils/scientists/?cid=nrcs142p2_054242 United States Department of Agriculture, Natural Resources Conservation Service. 2006. Land resource regions and major land resource areas of the United States, the Caribbean, and the Pacific Basin. U.S. Department of Agriculture Handbook 296. http://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/soils/? cid=nrcs142p2_053624 United States Department of Agriculture, Soil Conservation Service. 1961. Land capability classification. U.S. Department of Agriculture Handbook 210. http:// www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_052290.pdf Custom Soil Resource Report 17 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 15 Appendix B: Plant Species Observed 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 16 Common Name Scientific Name Wetland Indicator Status1 Arroyo willow Salix lasiolepis FACW Bird’s foot trefoil Lotus corniculatus FAC Blue gum Eucalyptus globulus NI Blue wild rye Elymus glaucus FACU Bog rush Juncus effusus FACW Bristly ox-tongue Helminthotheca echioides FAC California bay laurel Umbellularia californica FAC California bee plant Scrophularia californica FAC California sagebrush Artemisia californica NI California wood fern Dryopteris arguta NI Cape ivy Delairea odorata FAC Cherry plum Prunus cerasifera NI Coast live oak Quercus agrifolia NI Coastal gumweed Grindelia stricta FACW Common rush Juncus patens FACW Common Pacific pea Lathyrus vestitus NI Common velvetgrass Holcus lanatus FAC Common verbena Verbena lasiostachys FAC Common yarrow Achillea millefolium NI Cordgrass Spartina sp. OBL Cotoneaster Cotoneaster sp. NI Coyote brush Baccharis pilularis NI Curly dock Rumix crispus FAC English ivy Hedera helix FACU English plantain Plantago lanceolata FAC Fat-hen Atriplex prostrata FACW Field bindweed Convolvulus arvensis NI Foxtail barley Hordeum murinum FACU French broom Genista monspessulana UPL Fremont cottonwood Populus fremontii NI Fringed willowherb Epilobium ciliatum FACW Giant reed Arundo donax FACW Harding grass Phalaris aquatica FACU Himalayan blackberry Rubus armeniacus FAC Italian rye grass Festuca (Lolium) perennis FAC Italian thistle Carduus pycnocephalus NI 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 17 Jersey cudweed Pseudognaphalium luteoalbum FACW Ladies’ tobacco Pseudognaphalium californicum NI Little rattlesnake grass Briza minor FAC Ngaio tree Myoporum laetum FACU Monterey pine Pinus radiata NI Olive Olea europaea NI Pampass grass Cortaderia jubata FACU Panic veldtgrass Ehrharta erecta NI Pennyroyal Mentha pulegium OBL Perennial pepperweed Lepidium latifolium FAC Picklweed Salicornia pacifica OBL Pink honeysuckle Lonicera hispidula FACU Poison oak Toxicodendron diversilobum FAC Rabbitsfoot grass Polypogon monspeliensis FACW Ripgut brome Bromus diandrus NI Saltgrass Distichlis spicata FAC Scarlet pimpernel Lysimachia arvensis FAC Silver wattle Acacia dealbata NI Slender oat Avena barbata NI Slender rush Juncus tenuis FACW Soft brome Bromus hordeaceus FACU Spiny sowthistle Sonchus asper FAC Sticky monkeyflower Diplacus aurantiacus FACU Tall flatsedge Cyperus eragrostis FACW Toyon Heteromeles arbutifolia NI Western sword fern Polystichum munitum FACU NI – Not included in the Arid West 2020 Regional Wetland Plant List (USACE 2020) 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 18 Appendix C: Arid West Data Forms US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP1 DWG Ephemeral Stream Concave 3 37.9091498 -122.4775843 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes R4SB7 4 4 4 4 4 4 Wetland with drainage C 14 30 ft r 2 2 100 0 0 40 80 25 75 0 0 0 0 65 155 2.4 5 ft r 5 ft r Lolium perenne 25 4 FAC Juncus tenuis 20 4 FACW Cyperus eragrostis 10 FACW Polypogon monspeliensis 10 FACW 65%30 ft r 4 4 35.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP1 0 12 10YR 3/2 85 5YR 3/4 15 C PL / M Sandy Clay Loam 4 4 4 4 4 4 4 4 US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP2 DWG Ephemeral Stream Concave 3 37.9091872 -122.4773295 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 4 4 4 4 4 4 C 14 30 ft r 1 2 50 0 0 0 0 15 45 0 0 15 75 30 120 4.0 5 ft r 5 ft r Bromus diandrus 15 4 UPL Lolium perenne 10 4 FAC Briza minor 5 FAC 30%30 ft r 70.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP2 0 12 10YR 3/1 99 5YR 5/6 1 C M Sandy Clay Loam 4 Does not meet redox dark surface since redox is less than 1% 4 4 4 4 4 4 US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP3 DWG Upland Undulating 5 37.9093578 -122.4776858 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 4 4 4 4 4 4 C 14 30 ft r 1 2 50 0 0 0 0 50 150 0 0 30 150 80 300 3.8 5 ft r 5 ft r Briza minor 50 4 FAC Avena barbata 30 4 UPL 80%30 ft r 20.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP3 0 12 10YR 5/4 100 Sandy Clay Loam 4 4 4 4 4 Upland grassland US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP4 DWG Swale Concave 7 37.9097359 -122.4771285 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 4 4 4 4 4 4 C 14 30 ft r 1 2 50 0 0 0 0 50 150 0 0 40 200 90 350 3.9 5 ft r 5 ft r Briza minor 50 4 FAC Avena barbata 40 4 UPL 90%30 ft r 10.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP4 0 10 10YR 5/4 100 Sandy Clay Loam 4 4 4 4 4 4 Sample point in swale US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP5 DWG Ephemeral Stream Concave 2 37.9082845 -122.4768189 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 perecent slopes R4SB7 4 4 4 4 4 4 C 14 30 ft r 1 1 100 25 25 0 0 5 15 0 0 5 25 35 65 1.9 5 ft r 5 ft r Mentha pulegium 25 4 OBL Carduus pycnocephalus 5 UPL Sonchus asper 5 FAC 35%30 ft r 4 4 65.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP5 0 6 Very Rocky and Sandy, very little soil substrate 4 4 Riverwash material, assumed hydric 4 4 4 4 4 4 4 SP1 SP2 SP3 SP4 SP5 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 19 Appendix D: Photographs 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 20 Photo 1. OHWM1 sampling point in ephemeral drainage ES1. OWHM indicators observed included exposed root hairs and roots below an intact soil layer and break in bank slope. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 21 Photo 2. OHWM2 sampling point in ephemeral drainage ES1. OHWM indicators observed included break in bank slope and vegetation stripped from active areas of the channel. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 22 Photo 3. OHWM3 sampling point in ephemeral drainage ES2. OHWM indicators observed included exposed root hairs and roots below an intact soil layer and break in bank. Notice that the drainage is less than 2 feet across at this point. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 23 Photo 4. OHWM4 sampling point in ephemeral drainage ES2. OHWM indicators observed included exposed root hairs and roots below an intact soil layer and break in bank. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 24 Photo 5. Swale downslope of culvert C1. Note the lack of a well-defined bed, bank, and channel indicating infrequent and low volume flows. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 25 Photo 6. Ephemeral drainage ES2 and seasonal wetland SW2 with Arroyo Willow Thickets Alliance and San Francisco Bay in the background. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 26 Photo 7. Ephemeral drainage ES2, seasonal wetland SW1 within the rural-residential land cover. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 27 Photo 8. The HTL was delineated in the field using the limits of bank erosion and wrack line. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 28 Photo 9. Coastal salt marsh within the parcel. The HTL corresponded to the limit of marsh vegetation. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 29 Appendix E: Aquatic Resources Table 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 30 Waters Name State Cowardin Code HGM Code Measurement Type Amount Units Water Type Latitude Longitude Local Waterway ES1 CA R4SB3 Riverine Area 0.05 Acres A2TRIBINT 37.909244° -122.477883° San Francisco Bay ES2 CA R4SB3 Riverine Area 0.17 Acres A2TRIBINT 37.908342° -122.477243° San Francisco Bay SW1 CA R4SB7 Riverine Area 0.023 Acres A2TRIBINT 37.909149° -122.477584° San Francisco Bay SW2 CA R4SB7 Riverine Area 0.004 Acers A2TRIBINT 37.908284° -122.476818° San Francisco Bay 9/12/23, 5:00 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 1/15 Tiburon, California - C…/TITLE IV - LAND IMP…/Chapter 16 - ZONING /16-21 - Residential …/16-21.020 - Purpos…  Tiburon, CA Code of Ordinances TIBURON MUNICIPAL CODE ADOPTION OF CODE SUPPLEMENT HISTORY TABLE TITLE I - GENERAL PROVISIONS AND ADMINISTRATION TITLE II - LICENSES, TAXATION AND FISCAL TITLE III - BUSINESSES, PROFESSIONS AND UTILITIES TITLE IV - LAND IMPROVEMENT AND USE Chapter 13 - BUILDING REGULATIONS* Chapter 13A - REPORTS OF RESIDENTIAL BUILDING RECORDS Chapter 13B - HISTORICAL LANDMARKS Chapter 13C - INDIVIDUAL AND ALTERNATIVE SEWAGE DISPOSAL SYSTEMS Chapter 13D - FLOOD DAMAGE PREVENTION Chapter 13E - WATER EFFICIENT LANDSCAPE Chapter 13F - WATER WELL CONSTRUCTION AND USE Chapter 14 - SUBDIVISION OF LAND Chapter 14A - DRAINAGE AREAS Chapter 14B - PUBLIC FACILITIES DEVELOPMENT FEES Chapter 15 - VIEW AND SUNLIGHT OBSTRUCTION FROM TREES Chapter 15A - TREES Chapter 16 - ZONING  Prev Hit Next Hit  Code of Ordinances   CLOSE  TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U  PRINT 1 Navigation Menu Navigate between Codes, individual ordinances and documents (related documents such as minutes and agendas). 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Next 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 2/15 Article I. - Land Use Code Applicability 16-10 - Purpose and Applicability of Zoning Ordinance 16-12 - Interpretation of Zoning Ordinance 16-14 - Zoning Map Article II. - Zones and Allowable Land Uses 16-20 - Requirements for Approval of Development and New Land Uses 16-21 - Residential Zones 16-21.010 - Purpose. 16-21.020 - Purposes of the residential zones. 16-21.030 - Residential zones allowable land uses and permit requirements. 16-21.040 - Residential zones development standards. 16-22 - Commercial Zones 16-23 - Overlay Zones 16-24 - Oce Zone 16-25 - Marine Zone 16-26 - Public/Quasi-Public Zone 16-27 - Open Space Zone 16-28 - Parks and Recreation Zone Article III. - General Development Standards and Parking Standards 16-30 - Standards for All Development and Land Uses 16-32 - Parking and Loading Standards Article IV. - Standards for Specic Land Use Activities 16-40 - Standards for Specic Land Uses 16-42 - Wireless Communications Facilities ARTICLE V - Zoning Permit Procedures Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 3/15 16-50 - Application Filing and Processing 16-52 - Permit Review and Decisions 16-54 - Permit Implementation, Time Limits, Extensions 16-56 - Enforcement and Penalties ARTICLE VI. - Zoning Ordinance Administration 16-60 - Administrative Responsibility 16-62 - Nonconforming Uses, Structures, and Lots 16-64 - Public Hearings 16-66 - Appeals 16-68 - Amendments to Zoning Ordinance Article VII. - Inclusionary Housing and Density Bonuses 16-70 - Inclusionary Housing and Density Bonuses Article VIII. - Two-Unit Housing Developments 16-77 - Two-Unit Housing Developments Article IX. - Economic Exceptions 16-80 - Economic Exceptions Article X. - Reasonable Accommodation 16-90 - Reasonable Accommodation Article XI. - Denitions 16-100 - Denitions Chapter 16A - SIGNS Chapter 16B - TRIP REDUCTION Chapter 16C - RECYCLABLES COLLECTION AREA TITLE V - PUBLIC WORKS TITLE VI - PUBLIC HEALTH, SAFETY AND WELFARE Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 4/15 STATUTORY REFERENCES FOR CALIFORNIA CITIES ORDINANCE LIST AND DISPOSITION TABLE CODE COMPARATIVE TABLE AND DISPOSITION LIST  16-20.050 - Conicting requirements.16-22 - Commercial Zones  A. B. 1. 16-21 - Residential Zones 16-21.010 - Purpose. The purpose of division 16-21 is to establish the land uses that may be allowed within the residential zones established by section 16-14.020 (zoning map and zones), determine the types of zoning permit (if any) required for each use, and provide standards for site layout and building size. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010) 16-21.020 - Purposes of the residential zones. The purpose of each residential zone is as follows. R-1 (single-family residential) zone. The R-1 zone is intended to promote and encourage the maintenance of a suitable environment for suburban family living on smaller single-family residential lots in older developed areas of the town. The R-1 zone conforms with general plan land use designation medium high density (MH). R-1-B zones. The R-1-B zones are comprised of properties formerly located in unincorporated Marin County that were annexed to the town after incorporation in 1964. These properties were generally developed under County of Marin zoning districts with setbacks that do not correspond to other single-family residential zones in the town. The R-1-B zones conform with general plan land use designation medium high density (MH). R-1-B zones have modified setbacks in order to reduce the creation of nonconforming structures that would otherwise result from annexation of properties that were generally developed with different setback requirements. R-1-B-A (Bel Aire single-family residential) zone. The R-1-B-A zone serves the same purpose as the R-1 zone but is intended to reflect the different front and side setbacks historically found in the Bel Aire Estates neighborhood. The principal uses, conditional     Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 5/15 2. C. D. E. F. 1. uses, and development standards for the R-1-B-A zone shall be the same as the R-1 zone with the exception of the front and side setbacks established in section 16-21.040 (residential zones development standards). R-1-B-2 (modified single-family residential) zone. The R-1-B-2 zone serves the same purpose as the R-1 zone but is intended to reflect the different front and side setbacks with which the properties were developed. The principal uses, conditional uses, and the development standards for the R-1-B-2 zone shall be the same as the R-1 zone with the exception of the front and side setbacks established in section 16-21.040 (residential zones development standards). RO (residential open) zone. The RO zone is intended to promote and encourage the maintenance of a suitable environment for low-density, single-family development on lots larger than those typically found in the R-1 zone. There are two RO zones, RO-1 and RO-2, each having its own development standards. The permitted and conditional uses are the same for both zones. The RO-1 zone conforms with general plan land use designation medium low density (ML). The RO-2 zone conforms with general plan land use designation medium density (M). R-2 (two-family residential) zone. The R-2 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for suburban family living in areas appropriate by location and character for single-family and two-family dwellings. The R-2 zone conforms with general plan land use designation high density (H). R-3 (multifamily residential) zone. The R-3 zone is intended to promote and encourage the establishment and maintenance of a suitable environment for residence in areas appropriate by location and character for multifamily dwellings. The R-3 zone conforms with general plan land use designation very high density (VH). Planned residential development zones. There are numerous planned developments where applicable zoning regulations have been previously established by adoption of master plans, precise plans, precise development plans, conditional use permits, or similar zoning permits. These planned developments are depicted on the map entitled "Planned Development Map," incorporated as section 16-14.020 (zoning map and zones). A current list of the applicable ordinances and/or resolutions governing the planned developments is on file at the community development department. RPD (residential planned development) zone. The RPD zone is intended to protect and preserve open space land as a limited and valuable resource without depriving owners of a reasonable use of their property for residential purposes. The regulations of the zone are designed to insure, to the extent feasible, the conservation of natural resources and the retention of land in its natural or near natural state in order to, among other things,  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 6/15 2. A. B. C. D. 1. 2. 3. assist in the containment of urban sprawl and protect the community from the hazards of fire, flood, seismic and other catastrophic activity, and to otherwise implement the goals and policies of the general plan. The RPD zone conforms with general plan land use designation low density (L) and PD-R planned development residential (PD-R). RMP (residential multiple planned) zone. The RMP zone has the same purposes and shall be governed by the same regulations as the RPD zone (Subsection 1. above) except as otherwise provided herein. The RMP zone conforms with general plan land use designation very high density (VH) and very high density/affordable housing overlay (VH/AHO). (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 564 N.S. , §§ (B), (C), 4-6-2016) 16-21.030 - Residential zones allowable land uses and permit requirements. General permit requirements. Table 2-1 identifies the uses allowed by this zoning ordinance in each residential zone, and the zoning permit required to establish each use, in compliance with section 16-20.030 (allowable land uses and zoning permit requirements). Permitted uses are shown as "P" uses in table 2-1. Permit requirements for certain specific land uses. Where the last column in table 2-1 ("Specific Use Regulations") includes a section number, the referenced section determines whether the use requires a conditional use permit. The referenced section may also refer to other requirements and standards applicable to the use. Additional uses. Additional specific uses which are, in the determination of the director, similar or accessory to those uses listed in table 2-1 shall be permitted only when a conditional use permit is granted therefore as provided in section 16-52.040 (conditional use permit) and shown as "U" uses in table 2-1. Improvement requirements. R-2 zone. Conversion of existing two-family or multifamily dwellings in the R-2 zone into single-family dwellings or buildings containing fewer dwelling units shall be subject to approval of a conditional use permit as provided in section 16-52.040 (conditional use permit). R-3 zone. All improvements proposed for the R-3 zone other than alterations, additions or other changes to existing structures are subject to approval of a conditional use permit as provided in section 16-52.040 (conditional use permit). RPD and RMP zones. Approval of a precise development plan in compliance with the provisions of section 16-52.060 (precise development plan) is required prior to subdivision, grading, or improvements of any kind in the RPD and RMP zones.   Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 7/15  EXPAND TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1- B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - elementary, secondary, or college U U U U U U U Philanthropic or charitable facility U U U U U U U Private residential recreation facilities U U U U U U U  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 8/15 Public park P P P P P P P Playground U U U U U U U Publicly owned building or facility U U U U U U U Religious places of worship U U U U U U U RESIDENTIAL USES Home occupation P P P P P P P 16-52.110 Intermediate or community care facility (3) P P P P P P P Multifamily dwelling ————P —P Accessory dwelling unit /Junior accessory dwelling unit (5) MP MP MP ——MP — 16-52.100/ 16-52.105 Single-family dwelling P P P P —P P Single-family dwelling providing room/board for 1 paying guest for a minimum of 31 consecutive days; vacation rentals are not permitted P P P P —P P Two-family dwelling, attached ———P ——P Two-family dwelling, detached ———P(4)——— 16-40.020 Transitional, supportive housing P P P P P P P Key to Zoning District Symbols R- 1 Single-Family Residential R-3 Multifamily Residential  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 9/15 Notes: (1) See article X (definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code. (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003, are deemed legal nonconforming structures subject to provisions of division 16-62. (5) Also subject to the standards adopted by separate resolution of the town council. (6) Except for chicken keeping and beekeeping as set forth in section 16-40.070. R- 1- B Modied Single-Family Residential RPD Residential Planned Development RO Residential Open RMP Residential Multiple Planned R- 2 Two-Family Residential  EXPAND  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 10/15 TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed LAND USE (1)PERMIT REQUIRED BY DISTRICT Specic Use Regulations R-1 R-1-B RO R-2 R-3 RPD RMP SERVICES - GENERAL Bed and breakfast facility (B&B) U U U ———— Child day-care facilities, small family day-care homes - up to 8 children (5) P P P P P P P Health & Safety Code 1597.3 et seq. Child day-care facilities, large family day-care homes - 9 to 14 children (5) MP MP MP MP MP MP MP Health & Safety Code 1597.46— 1597.465 Child day-care center - 15 or more children U U U U U U U Medical services - Hospital U U U U U U U Real estate tract oce U U U U U U U TRANSPORTATION, COMMUNICATIONS & INFRASTRUCTURE Public utility and communication equipment building U U U U U U U  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 11/15 Notes: (1) See article X (definitions) for land use definitions. (2) The keeping of horses subject to licensing of each horse pursuant to the Tiburon horse license ordinance. Use permits for keeping horses shall automatically terminate upon revocation of license issued under horse license ordinance. (3) As defined by state law or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single-family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code. TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed LAND USE (1)PERMIT REQUIRED BY DISTRICT Specic Use Regulations R-1 R-1-B RO R-2 R-3 RPD RMP Wireless communication facility, amateur or professional U/MP U/MP U/MP U/MP U/MP U/MP U/MP Government Code 65850.6 Key to Zoning District Symbols R- 1 Single-Family Residential R-3 Multifamily Residential R- 1- B Modied Single-Family Residential RPD Residential Planned Development RO Residential Open RMP Residential Multiple Planned R- 2 Two-Family Residential  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 12/15 A. (4) Provided that design review board has approved or conditionally approved a detached two-family dwelling exception, as set forth in section 16-40.020. Detached two-family dwellings that lawfully existed on June 4, 2003, are deemed legal nonconforming structures subject to provisions of division 16-62. (5) When located in a single-family dwelling. (6) See Section 16-42.040 for specifics. Certain modifications, replacements and removals are subject to ministerial review and approval under federal law or are eligible for streamlined discretionary review. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 541 N.S. § 2(A), 8-15-2012; Ord. No. 542 N.S., §§ 2(C) (1), (2), 8-15-2012; Ord. No. 554 N.S. , § 2(A)(Exh. A), 2-18-2015; 555 N.S. , § 2(A)(Exh. A), 2-18-2015; Ord. No. 558 N.S. , § 2, 6-3-2015; Ord. No. 562 N.S ., § 2(A)(Exh. A), 11-18-2015; Ord. No. 568 N.S., § 2(A), 2-1- 2017; Ord. No. 577 N.S. , § 2(A), 5-16-2018) 16-21.040 - Residential zones development standards. Development standards. Each subdivision shall comply with the minimum lot size requirements in table 2-2. Subdividers are advised that division 16.40 (standards for specific land uses) may require a specific land use to be on a lot larger than required by this section. Larger lots may be required based on slope restriction, refer to table 14-7.3 in Municipal Code chapter 14 (subdivision of land) for calculations of minimum lot size based on slope. TABLE 2-2 RESIDENTIAL ZONES DEVELOPMENT STANDARDS   EXPAND  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 13/15 Zone Minimum Lot Area Maximum Lot Coverage Required Lot Width Minimum Setback Requirements Height Limit Maxi FA Front Sides Rear Primary Accessory R-1 10,000 square feet (s.f.) One-story development: Same as Maximum FAR; Two- story or multi-story development: 30% 40 ft. 15 ft.8 ft. 20% depth of lot or 25 ft. (whichever is less) 30 ft.15 ft. S Sec 1 52.0 R-1- B-A 20 ft.6 ft. R-1- B-2 25 ft.10 ft. RO-1 40,000 s.f. 15%70 ft.30 ft.20 ft. RO-2 20,000 s.f. 15%50 ft.30 ft.15 ft. R-2 7,500 s.f. 35%40 ft. 15 ft.8 ft. 3,750 s.f. per dwelling R-3 10,000 s.f. 30%—8 ft..63,500 s.f. per dwelling 1 2 2  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 14/15 B. 1. 2. a. b. Open space standards. R-2 zone usable open space. Minimum required usable open space per dwelling unit in the R-2 zone is three hundred seventy-five square feet with a minimum dimension of not less than twelve feet. R-3 zone usable open space. Minimum required usable open space per dwelling unit in the R-3 zone is as set forth below, with a minimum dimension of not less than twelve feet: Per efficiency or studio apartment: one hundred fifty square feet; Per one bedroom apartment: two hundred square feet; Zone Minimum Lot Area Maximum Lot Coverage Required Lot Width Minimum Setback Requirements Height Limit Maxi FA Front Sides Rear Primary Accessory RPD Established by adopted master/precise plan or precise development plan for development 30 ft. 15 ft. S sec 1 52.0 RMP Established by adopted master/precise plan or precise development plan, or condominium plan for development .3 Notes: 1. Some older planned development approvals do not specify setback requirements, in which case appropriate setbacks are determined by site plan and architectural review. 2. In the R-2 zone, where a lot is contiguous with a submerged or tide lot that lies entirely or partially in t M zone, and all of such property is under the same ownership, the total area of such contiguous lots may used in determining whether the minimum lot area requirements have been met. Notwithstanding any ot provision of this Section to the contrary, no building or accessory building or part thereof shall extend seaward of the zone boundary line between the R-2 zone and the M zone other than as may be permitted compliance with the regulations of the M zone (division 16-25). 3. Unless otherwise specied in a precise development plan. 4. Unless otherwise specied in a Precise Development Plan. 1 3 3  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 9/12/23, 5:01 PM 16-21 - Residential Zones | Code of Ordinances | Tiburon, CA | Municode Library https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH16ZO_16-21REZO_16-21.020PUREZO 15/15 c. d. C. 1. 2. 3.  16-20.050 - Conicting requirements.16-22 - Commercial Zones  Per two-bedroom apartment: two hundred fifty square feet; Per three or more bedroom apartment: three hundred square feet. Density standards. Undeveloped land. Maximum residential densities for undeveloped land in the RPD and RMP zones shall be as established on the land use diagram in the land use element of the general plan. RPD zone developed land. Maximum residential densities for developed land in the RPD zone shall be as established by the adopted master/precise plan, precise development plan, or equivalent zoning permit for the development, as finalized by the recorded subdivision map(s) for the development. Planned developments with recorded subdivision maps are considered to be fully subdivided and are not subject to further subdivision and shall not exceed allowable general plan density limits. RMP zone developed land. Maximum residential densities for developed land in the RMP zone shall be as established by the adopted master and/or precise plans, precise development plans, or condominium plan for the development, as finalized by the recorded subdivision map, or condominium plan, for the development. Planned developments with recorded subdivision maps and/or condominium plans are considered to be fully subdivided and are not subject to further subdivision, and shall not exceed allowable general plan density limits. See Subsection 16-23.050.A (RMP/AHO zone) for RMP affordable housing overlay development incentives. (Ord. No. 519 N.S., § 3(Exh. A), 3-17-2010; Ord. No. 541 N.S., § 2(B), 8-15-2012; Ord. No. 593 N.S. , § 2, 1- 19-2022)  Prev Hit Next Hit  Code of Ordinances TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specic Use Regulations LAND USE (1)R-1 R- 1-B RO R-2 R- 3 RPD RMP AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6)U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities —————U U Open space use —————P P Wildlife sanctuaries —————U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2)U U U ——U U Title VI, 20- 5.1 Golf course/country club U U U ——U U Library, museum U U U U U —— Parochial or other nonprot school - l t d ll U U U U U U U 8/24/23, 10:00 AM (29) Education | Matthew Le Merle | LinkedIn https://www.linkedin.com/in/matthewlemerle/details/education/1/2 Matthew Le Merle Investor at Blockchain Coinvestors Follow ConnectMore Education Stanford University Graduate School of Business MBA, Business Administration 1986 - 1988 University of Oxford MA, Geography (Double First, Open Scholarship) 1981 - 1984 Christ Church, Oxford University Activities and societies: Treasurer, Christ Church Boat Club (First VIII 81-84) Treasurer, Oxford University Exploration Club Member, Halford Mackinder Club Member, Nondescripts Stanford University Graduate School of Business Stanford Directors' Consortium 2013 - 2013 Saïd Business School, University of Oxford Certificate in Blockchain Strategy 2018 - 2018 University of the Arts London Short Course Certificate, Fine and Studio Arts - Oil Painting 2016 - 2016 University of the Arts London Short Course Certificate, Innovation in the Arts 2017 - 2017 Eltham College 1973 - 1980 People also viewed Message Maria Poly • 3rd Fundraising operations and investor relations for VC Funds Message Hong Kim • 3rd Co-founder & CTO at Bitwise Follow Alison Davis • 2nd Fintech VC at Blockchain Coinvestors and board director at Collibra, Fiserv, Kraken, Pacaso and SIVB Kimberly Kupferman • 3rd Head of Investor Relations at Blockchain Coinvestors Home My Network Jobs Messaging Notifications Me For Business Network S Try Premiu 6 23 8/24/23, 10:00 AM (29) Education | Matthew Le Merle | LinkedIn https://www.linkedin.com/in/matthewlemerle/details/education/2/2 About Accessibility Talent Solutions Community Guidelines Careers Marketing Solutions Ad Choices Advertising Sales Solutions Mobile Small Business Safety Center Questions? 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Start now! 6-Month Quote Guarantee Working with you...get a quote today, order when you're ready. 800-945-3800 Start a site for free. Manage your site, social, and marketingfrom one place. See terms on site. Privacy & Terms English (English) 4576 Paradise Drive Tiburon, California Delineation of Wetlands and Other Waters Prepared for: Eric Crandall 4576 Paradise Drive Tiburon, California 94920 Prepared by: MIG 2055 Junction Avenue Suite 205 San Jose, CA 95131 (650) 327-0429 September 2022 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 2 1. Introduction The purpose of this delineation is to identify the extent and distribution of wetlands and other waters occurring at 4576 Paradise Drive in Tiburon, Marin County, California (APN 038-142-02) under conditions existing at the time of the August 2022 survey. The size of the parcel is approximately 9.12 acres (Figures 1 to 3). Within the parcel, two ephemeral drainages and one swale were identified in a biological constraints analysis prepared for the parcel by MIG in August 2022. To determine if these drainages and swale are potential waters of the U.S. and/or state, a formal technical delineation was completed in accordance with the U.S. Army Corps of Engineers (USACE) methodology. The USACE methodology includes collection of technical data on soils, vegetation, and hydrology, which are used to identify wetlands and other waters. The USACE methodology is accepted by both federal and state regulatory agencies. The climate in the region is coastal Mediterranean, with most rain falling in the winter and spring. Mild cool temperatures are common in the winter. Hot to mild temperatures are common in the summer. Climate conditions in the project area include a 30-year average of approximately 43.8 inches of annual precipitation with an average minimum daily temperature of 48ºF and an average maximum daily temperature of 71ºF (Deters 2022). The site is underlain by one soil type, Los Osos-Bonnydoon complex, 15 to 30 percent slopes (NRCS 2022a) (Figure 4). The Bonnydoon series consists of shallow, somewhat excessively drained soils that formed in material weathered from sandstone and shale. Bonnydoon soils are on uplands and have slopes of 5 to 85%. This soil map unit is classified as “well-drained” and is not listed as hydric in Marin County on the National Hydric Soils List (NRCS 2022b). A detailed description of this soil type can be found in Appendix A. The U.S. Fish and Wildlife Service’s National Wetlands Inventory (NWI) map of the parcel is depicted in Figure 5. The NWI identified two temporarily flooded intermittent riverine systems within the parcel (R4SBA) (NWI 2022). NWI maps are based on interpretation of aerial photography, limited verification of mapped units, and/or classification of wetland types using the classification system developed by Cowardin et al. (1979). These data are available for general reference purposes and do not necessarily correspond to the presence or absence of jurisdictional waters. 2. Survey Methods Before the delineation surveys were conducted, topographic maps and aerial photos of the study area were obtained and reviewed from several sources, such as the U.S. Geological Survey (USGS) (Figure 3), Natural Resources Conservation Service (NRCS) (Figure 4), NWI (Figure 5), and Google Earth software (Google Inc. 2022). On August 25, 2022, MIG Senior Biologist David Gallagher performed a technical delineation of 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 3 wetlands and other waters in the parcel, in accordance with the Corps of Engineers 1987 Wetlands Delineation Manual (Corps Manual; Environmental Laboratory 1987). Additionally, the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West (Version 2.0) (Regional Supplement) (USACE 2008a) and A Field Guide to the Identification of the Ordinary High-Water Mark (OHWM) in the Arid West Region of the Western United States (USACE 2008b) were followed to document site conditions relative to hydrophytic vegetation, hydric soils, and wetland hydrology. Mr. Gallagher performed preliminary mapping of the extent and distribution of wetlands and other waters of the U.S. that may be subject to regulation under Section 404 of the Clean Water Act (CWA); and waters of the state that may be subject to regulation under the Porter Cologne Water Quality Control Act, which is administered by the Regional Water Quality Control Board (RWQCB). Mr. Gallagher also surveyed for aquatic and riparian habitat that may be subject to regulation under Sections 1600-1607 of the California Fish and Game Code, which is administered by California Department of Fish and Wildlife (CDFW). 2.1 Identification of Jurisdictional Waters The vegetation, soils, and hydrology in the project area were mapped according to the Routine Determination Method outlined in the Corps Manual (Environmental Laboratory 1987), using updated data forms, vegetation sampling methods, and hydric soil and hydrology indicators developed for the Regional Supplement (USACE 2008a). This three-parameter approach to identifying wetlands is based on the presence of a prevalence or dominance of hydrophytic vegetation, hydric soils, and wetland hydrology. In addition to applying these survey methods, Mr. Gallagher compiled this report in accordance with guidance provided in Updated Map and Drawing Standards for the South Pacific Division Regulatory Program (USACE 2016a) and Information Requested for Verification of Corps Jurisdiction (USACE 2016b). These documents list the information that must be submitted as part of a request for a jurisdictional determination, including: • Vicinity map (Figure 1) • Parcel or study area map (Figure 2) • USGS quadrangle sheet (Figure 3) • Soils map (Figure 4) • National Wetlands Inventory map (Figure 5) • Vegetation communities map (Figure 6) • Delineation map (Figure 7) • Current soil survey report (Appendix A) • Plant species observed (Appendix B) • Arid West Wetland Determination Data Forms (Appendix C) • Written rationale for sample point choice (Section 3.2) • Color photos (Appendix D) • Aquatic resources table (Appendix E) During the survey, the parcel was examined for topographic features, drainages, alterations to hydrology or vegetation, and recent significant disturbance. A determination was then made as ^_Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure1_Vicinity_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 1.5 30.75 Miles K Figure 1 Project Vicinity Oakland San Francisco Richmond San Rafael Mill Valley San Pablo Sausalito San Francisco Bay ^_Project Location APN # 038-142-02Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure2_Parcel_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.15 0.30.075 Miles K Figure 2 Parcel Map Parcel Boundary Ring Mountain Preserve San Francisco Bay P a r a d i s e D r i v e Trestle Glen Blv d \\EgnyteDrive\migcom\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure3_USGS_TOPO_Map_2022_0912.mxd 9/20/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.5 10.25 MilesK Figure 3 USGS Topo Map Parcel Boundary Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure4_Soils_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021; USDA 2022 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.15 0.30.075 Miles K Figure 4 Soil Map NRCS Soils Henneke stony clay loam, 15 to 50 percent slopes Los Osos-Bonnydoon complex, 15 to 30 percent slopes Los Osos-Bonnydoon complex, 30 to 50 percent slopes Tocaloma-Saurin association, very steep Xerorthents-Urban land complex, 0 to 9 percent slopes Water Parcel Boundary Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure5_NWI_Map_2022_0912.mxd 9/19/2022 Source: Google Earth 9/27/2021; NWI 2022 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 0.25 0.50.125 Miles K Figure 5 National Wetlands Inventory Map Wetland Type Estuarine and Marine Deepwater Estuarine and Marine Wetland Freshwater Emergent Wetland Freshwater Pond Riverine Parcel Boundary 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 4 to whether normal environmental conditions were present at the time of the field survey. In the field, the techniques used to identify wetlands included observing the vegetation growing near the soil sample points and characterizing the current surface and subsurface hydrologic features present near the sample points through both observation of indicators and direct observation of hydrology. Features meeting wetland vegetation, soil, and hydrology criteria were then mapped in the field. Geospatial data were collected using a tablet with an Arrow 100 sub-meter GPS receiver and a geo-spatial mobile-device application. 2.2 Identification of Section 404 Jurisdictional Wetlands Where wetland field characteristics were present, Mr. Gallagher examined vegetation, soils, and hydrology using the Routine Determination Method outlined in the Corps Manual (Environmental Laboratory 1987) and the updated data forms, vegetation sampling methods, and hydric soil and hydrology indicators developed for the Regional Supplement (USACE 2008a). Hydrophytic Vegetation. Plants that can grow in soils that are saturated or inundated for long periods of time, which contain little or no oxygen when wetted, are considered adapted to those soils and are called hydrophytic. There are different levels of adaptation, as summarized in Table 2. Some plants can only grow in soils saturated with water (and depleted of oxygen), some are mostly found in this condition, and some are found equally in wet soils and in dry soils. Plants observed at each of the sample study areas were identified to species, where possible, using The Jepson Manual, Vascular Plans of California, Second Edition (Baldwin et al. 2012). The wetland indicator status of each species was obtained from the Arid West 2020 Regional Wetland Plant List (USACE 2020). Wetland indicator species are designated according to their frequency of occurrence in wetlands. For instance, a species with a presumed frequency of occurrence of 67 to 99 percent in wetlands is designated a facultative wetland indicator species. The wetland indicator groups, indicator symbol, and the frequency of occurrence of species, provided as a percentage, within wetlands are shown in Table 1. Table 1. Wetland Indicator Status Categories for Vascular Plants Indicator Category Symbol Frequency (Percent) of Occurrence in Wetlands1 Obligate OBL >99 (Almost always is a hydrophyte, rarely in uplands) Facultative wetland FACW 67 – 99 (Usually a hydrophyte but occasionally found in uplands) Facultative FAC 34 – 66 (Commonly occurs as either a hydrophyte or non-hydrophyte) Facultative upland FACU 1 – 33 (Occasionally is a hydrophyte, but usually occurs in uplands) Upland2 UPL <1% (Rarely is a hydrophyte, almost always in uplands) Not included2 NI Considered to be an upland species Obligate and facultative wetland indicator species are hydrophytes that occur “in areas where the frequency and duration of inundation or soil saturation produce permanently or periodically 1Based on information contained in the Corps Manual. 2Plant species that are not listed in the Arid West 2020 Regional Wetland Plant List (USACE 2020) are considered UPL species 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 5 saturated soils of sufficient duration to exert a controlling influence on the plant species present” (Environmental Laboratory 1987). Facultative indicator species may be considered wetland indicators when found growing in hydric soils that experience periodic saturation. Plant species that are not on the regional list of wetland indicator species are considered upland species. A complete list of the vascular plants observed in the parcel including their current indicator statuses, is provided in Appendix B. Hydric Soils. Up to 12 inches of the soil profile were examined for hydric soil indicators. The National Technical Committee for Hydric Soils (NTCHS) defines a hydric soil as one formed under conditions of saturation, flooding or ponding long enough during the growing season to develop anaerobic conditions in the upper 12 inches of soil (NRCS 2010). Hydric soils include soils developed under sufficiently wet conditions to support the growth and regeneration of hydrophytic vegetation. In general, evidence of a hydric soil includes characteristics such as organic soils (histosols), reducing soil conditions, gleyed soils, soils with bright mottles and/or low matrix chroma, soils listed as hydric by the U.S. Department of Agriculture (USDA) on the National Hydric Soils List (NRCS 2022b), and iron and manganese concretions. Reducing soil conditions can also include circumstances where there is evidence of frequent ponding for long or very long duration. A long duration is defined as a period of inundation for a single event that ranges from 7 days to a month and very long is greater than one month (Environmental Laboratory 1987). Munsell Soil Notations (Munsell 2009) were recorded for the soil matrix of each soil sample. The Munsell color system is based on three color properties: hue, value, and chroma. A brief description of each component of the system is described below, in the order they are used in describing soil color (i.e., hue/value/chroma): 1. Hue. The Munsell Soil Color Chart is divided into five principal hues: yellow (Y), green (G), purple (P), blue (B), and red (R), along with intermediate hues such as yellow-red (YR) and green-yellow (GY). Example of commonly encountered hue numbers include 2.5YR, 10YR, and 5Y. 2. Value. Value refers to lightness, ranging from white to grey to black. Common numerical values for value in the Munsell Soil Color Chart range from 2 for saturated soils to 8 for faded or light colors. Hydric soils often show low-value colors when soils have accumulated sufficient organic material to indicate development under wetland conditions but can show high-value colors when iron depletion has occurred, removing color value from the soil matrix. Value numbers are commonly reported as 8/, 2.5/, and 6/. 3. Chroma. Chroma describes the purity of the color, from “true” or “pure” colors to “pastel” or “washed out” colors. Chromas commonly range from 1 to 8 but can be higher for gleys. Soil matrix chroma values that are 1 or less, or 2 or less when mottling is present, are typical of soils that have developed under anaerobic conditions. Chroma numbers are listed, for example, as /1, /5, and /8. The NRCS Web Soil Survey (NRCS 2022a) was consulted to determine which soil types have been mapped in the parcel (Figure 4). Detailed descriptions of these soil types are provided in 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 6 Appendix A. Wetland Hydrology. Wetland hydrology is defined as an area that is inundated either permanently or periodically at mean water depths less than 6.6 feet, or where the soil is saturated at the surface at some time during the growing season of the prevalent vegetation. The period of inundation or soil saturation varies according to the hydrologic/soil moisture regime and occurs in both tidal and non-tidal situations. Wetland hydrology encompasses all hydrologic characteristics of areas that are periodically inundated or have soils saturated to the surface at some time during the growing season. Wetland hydrology indicators provide evidence that the study area has a continuing wetland hydrologic regime. Primary indicators might include visual observation of surface water (A1), high water table (A2), soil saturation (B1), water-stained leaves (B9), and hydrogen sulfide odor (C1). Secondary indicators might include riverine drift deposits (B3), drainage patterns (B10), and passing score for the FAC-neutral test (D5). Each of the sample points was examined for positive field indicators (primary and secondary) of wetland hydrology, following the guidance provided in the Regional Supplement. Potential jurisdictional wetlands were identified within the parcel. 2.3 Identification of Section 404 Jurisdictional Other Waters “Other waters” includes lakes, slough channels, seasonal ponds, tributary waters, non-wetland linear drainages, and salt ponds. Such areas are identified by the (seasonal or perennial) presence of standing or running water and generally lack hydrophytic vegetation. In non-tidal or muted tidal waters USACE jurisdiction extends to the ordinary high water mark (OHWM) which is defined in 33 CFR Part 328.3 as “the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear, natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation or the presence of litter and debris.” In tidal waters, USACE jurisdiction extends to the landward extent of vegetation associated with salt or brackish water or the high tide line (HTL) (see 33 CFR, Part 328.4). The HTL is defined in 33 CFR, Part 328.3 as “the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The HTL may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gauges, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.” Potential jurisdictional “other waters” were identified within the parcel. 2.4 Identification of Waters of the State The Porter-Cologne Water Quality Control Act (PWQCA) broadly defines waters of the state as “any surface water or groundwater, including saline waters, within the boundaries of the state.” Because PWQCA applies to any water, whereas the CWA applies only to certain waters, 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 7 California’s jurisdictional reach overlaps and may exceed the boundaries of waters of the U.S. For example, Water Quality Order No. 2004-0004-DWQ states that “shallow” waters of the state include headwaters, wetlands, and riparian areas. Where forested habitat occurs, the outer canopy of any riparian trees rooted within top of bank (TOB) may be considered jurisdictional as these trees can provide allochthonous3 input to the channel below. Potential waters of the state were identified within the parcel. 2.5 Identification of CDFW Jurisdiction Ephemeral and intermittent streams, rivers, creeks, dry washes, sloughs, blue line streams on USGS maps, and watercourses with subsurface flows fall under California Department of Fish and Wildlife (CDFW) jurisdiction. Canals, aqueducts, irrigation ditches, and other means of water conveyance may also be considered streams if they support aquatic life, riparian vegetation, or stream-dependent terrestrial wildlife. A stream is defined in Title 14, California Code of Regulations §1.72, as “a body of water that follows at least periodically or intermittently through a bed or channel having banks and that supports fish and other aquatic life. Jurisdiction does not include tidal areas such as tidal sloughs unless there is freshwater input. This includes watercourses having surface or subsurface flow that supports or has supported riparian vegetation.” Using this definition, CDFW extends its jurisdiction to encompass riparian habitats that function as a part of a watercourse. California Fish and Game Code §2786 defines riparian habitat as “lands which contain habitat which grows close to, and which depends upon soil moisture from a nearby freshwater source.” The lateral extent of a stream and associated riparian habitat that would fall under the jurisdiction of CDFW can be measured in several ways, depending on the situation and the type of fish or wildlife at risk. At a minimum, CDFW would claim jurisdiction over a stream’s bed and bank. Where riparian habitat is present, the outer edge of riparian vegetation is generally used as the line of demarcation between riparian and upland habitats. CDFW jurisdictional habitats were identified within the parcel. 3. Survey Results and Discussion A total of nine sample points (SP1 to SP5 and OHWM1a/b to OHWM 4a/b) were examined to identify jurisdictional features (Appendix C; Figure 7). In the parcel, 0.54 acres and 1,103 linear feet of ephemeral streams up to TOB, 0.027 acres of seasonal wetlands, and 0.51 acres of riparian habitat outside of TOB (Arroyo Willow Thickets) potentially regulated by USACE, RWQCB, and CDFW were identified. The results of the August 2022 delineation are described below and summarized in Table 2. The parcel is located within the Central Coast/San Francisco Bay Area Subregions of the 3Allochthonous is a term used describe nutrients and carbon that come from outside the aquatic system. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 8 Central Western Californian Region, both of which are contained within the larger California Floristic Province (Baldwin et al. 2012). Where applicable, vegetation communities were mapped using CDFW’s Vegetation Classification and Mapping Program’s (VegCAMP) currently accepted list of vegetation alliances and associations (CDFW 2022). Five natural communities and land cover types were identified in the parcel: (1) Rural-residential (2) Coast Live Oak Woodland and Forest Alliance, (3) Eucalyptus – Tree of Heaven – Black Locust Groves Semi- natural Alliance, (4) Coyote Brush Scrub Alliance, and (5) Arroyo Willow Thickets Alliance (Figure 6). Table 2. Summary of Potentially Jurisdictional Waters and Habitats within the Parcel Potentially Jurisdictional Waters Acres1 USACE Jurisdictional Total 0.25 Ephemeral Streams (ES1 & ES2) (up to OHWM) 0.22 Seasonal Wetlands (SW1 & SW2) 0.027 RWQCB Jurisdiction Total 0.54 Ephemeral Stream (ES1 & ES2) (up to TOB) 0.51 Seasonal Wetlands (SW1 & SW2) 0.027 CDFW Jurisdiction Total 1.05 Ephemeral Stream (ES1 & ES2) (up to TOB) 0.51 Seasonal Wetlands (SW1 & SW2) 0.027 Arroyo Willow Thickets (riparian habitat) – outside TOB 0.51 1Note: Values are approximate due to rounding. 3.1 Precipitation Data The survey took place during the dry season. Total estimated precipitation at the project area from February 2022 to July 2022 was 3.7 inches, which was approximately 20% of 30-year average (1986-2015) for the same period, which was drier than normal to normal conditions (Deters 2022). The region was experiencing an extreme to moderate drought as estimated by the Palmer Drought Severity Index (PDSI). The drier than normal to normal conditions were considered when assessing the biotic habitats present in the parcel. The boundaries of waters remained clear owing to the presence of hydrology indicators and hydrophytic vegetation. 3.2 Rationale for Sample Point Choice OHWM1a/b and OHWM2a/b were selected to delineate the OHWM in the lower and upper reaches of ephemeral drainage ES1 (Figure 7; Photos 1 and 2 in Appendix D). Most of ES1 is within the rural-residential land cover and no riparian habitat is present beyond the channel at its outlet, which is within the Willow Thickets Alliance (Figure 7). Geomorphic field indicators of the OHWM included exposed root hairs and roots below an intact soil layer, break in bank slope, natural line impressed on the bank, and drift (organic and non-organic debris). Vegetative field indicators of the OHWM included vegetation stripped from active areas of the channel, vegetation below OHWM that starts to thicken above OHWM due to lack of disturbance from Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure6_Vegetation_Communities_Map_2022_0912.mxd 9/20/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 200 400100Feet K Figure 6 Vegetation Communities Map San Francisco Bay Par a d i s e D r i v e Parcel Boundary Coast Live Oak Woodland and Forest Alliance Coyote Brush Scrub Alliance Eucalyptus-Tree of Heaven- Black Locust Groves Semi-Natural Alliance Seasonal Wetland Rural-residential Willow Thickets Alliance Swale Ephemeral Stream !(!(!(!( !( !( !( !( !( !( !( !( !( !(!( !(!( !(!( !(!( !( !( !( !(!(SP1 SP2 SP5 SP4 SP3 SW1 SW2 4b4a 3b3a 2b2a 1b1a PP 6 PP 9 PP 8 PP 7 PP 5 C4 C3 C2 C1Z:\Shared\San Jose\Bio\16232_Tiburon 4576 Paradise Dr BIO\GIS\MXD\Figure7_Delineation_Map_2022_0912.mxd 9/20/2022 Source: Google Earth 9/27/2021 4576 Paradise Drive Delineation of Wetlands and Other Waters 0 150 30075Feet K Figure 7 Preliminary Identification of Waters of the U.S./State Paradise Dr Parcel Boundary Coast Live Oak Woodland and Forest Alliance Coyote Brush Scrub Alliance Eucalyptus-Tree of Heaven- Black Locust Groves Semi-Natural Alliance Rural-residential Seasonal Wetland Willow Thickets Alliance High Tide Line OrdinaryHigh Water Mark (OHWM) Top of Bank Swale !(OHWM Sample Point !(PP- Photo Point !(SP- Wetland Sample Point !(Culvert !(!(!(!( !( !(!( !( !(!( SP1 SP2 SP3 SW1 2b2a PP 7 !(!( !( !(!(SP5SW23b PP 6 PP 8 ES2 ES1 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 9 moderate events, and areas above the OHWM fully vegetated due to lack of disturbance by moderate events. OHWM3a/b and OHWM4a/b were selected to delineate the OHWM in the lower and upper reaches of ephemeral drainage ES2 (Figure 7; Photos 3 and 4 in Appendix D). The banks and channel of ES2 within the Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance were generally devoid of understory vegetation due to a thick layer of bark litter and the shading of the mature eucalyptus trees. The channel was generally sparsely vegetated except near OHWM3. No riparian habitat is present beyond the channel except near its outlet, which is adjacent to the Willow Thickets Alliance (Figure 7). Geomorphic field indicators of the OHWM included exposed root hairs and roots below an intact soil layer, break in bank slope, and drift (organic and non-organic debris). Vegetative field indicators of the OHWM included vegetation stripped from active areas of the channel, vegetation below OHWM that starts to thicken above OHWM due to lack of disturbance from moderate events, and areas above the OHWM fully vegetated due to lack of disturbance by moderate events. SP1 was selected to examine the section of ephemeral drainage ES1 dominated by hydrophytic vegetation (Figure 7; Appendix C). Vegetation present included Italian rye grass (Festuca perennis; FAC), rabbitsfoot grass (Polypogon monspeliensis; FACW), slender rush (Juncus tenuis; FACW), and tall flatsedge (Cyperus eragrostis; FACW). Hydric soil indictors observed included redox depressions in the matrix and pore linings. Hydrological indicators, including drainage patterns and the FAC-Neutral Test were observed. SP2 was selected to examine the section of ephemeral drainage ES1 where hydrophytic vegetation is intermixed with upland vegetation downstream of SP1 (Figure 7; Appendix C). Vegetation present included little rattlesnake grass (Briza minor), Italian rye grass, and ripgut brome (Bromus diandrus; UPL). Hydric soil indicators observed included redox depressions but did not meet the threshold for classification of a hydric soil. Hydrological indicators, drainage patterns and sediment deposits were observed. SP3 was selected to examine the upland area adjacent to ES1 (Figure 7; Appendix C). Vegetation present included little rattlesnake grass and slender oat (Avena barbata; UPL). No hydric soil or hydrological indicators were observed at this sample point. SP4 was selected to examine the swale below culvert C1 (Figure 7; Appendix C). Vegetation present included little rattlesnake grass and slender oat. No hydric soil or hydrological indicators were observed at this sample point. SP5 was selected to investigate where ephemeral drainage ES2 empties onto the beach just above the HTL (Figure 7; Appendix C). Vegetation present included Italian thistle (Carduus pycnocephalus; UPL), pennyroyal (Mentha pulegium; OBL), and spiny sowthistle (Sonchus asper; FAC). Hydric soils were not observed but the substrate was composed of rocky material and sand (riverwash) likely transported by movement of water in the stream. Hydrological indicators observed included drainage patterns, the FAC-Neutral Test, and sediment deposits. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 10 3.3 Project Area Conditions and Observations This preliminary delineation assumes that normal circumstances prevailed at the time of the August 2022 delineation, and the results are based upon the conditions present. The survey was performed using the “Routine Method of Determination” using three parameters, as outlined in the Regional Supplement. The parcel is situated on a moderately sloping hillside with several swales. Some of these swales may convey flows during or immediately after rain events due to their low topographic positions. However, these swales did not have a well-defined bed, bank, and channel, indicating ephemeral and low volume flow patterns. However, they were mapped to illustrate possible flow patterns within the parcel (Figure 7; Photo 5 in Appendix D). Culvert C1 likely collects runoff from Paradise Drive and residential development upslope of the parcel into the swales just downslope of the culvert as well as down the dirt access road into the ephemeral drainage ES1 (Figure 7). Culverts C2, C3, and C4 likely collect runoff from Paradise Drive, up-slope residential development, and surrounding open space areas west of the parcel. The HTL was delineated to indicate the jurisdictional limit of tidal waters in the parcel. The HTL was identified in the field by the wrack line, presence of hydrophytic vegetation, elevation, and limits of bank erosion. The wrack consisted of organic and non-organic materials, crustacean shells, and litter (Figure 7; Photo 8 in Appendix D). In some areas along the shoreline, the HTL corresponded to the limit of coastal marsh vegetation (Photo 9 in Appendix D). Vegetation included coastal gumweed (Grindelia stricta; FACW), cordgrass (Spartina sp.; OBL), fat hen (Atriplex prostrata; FACW), perennial pepperweed (Lepidium latifolium; FAC), pickleweed (Salicornia pacifica; OBL), and saltgrass (Distichlis spicata; FAC). The HTL was not delineated along the southern section of the shoreline due to the presence of vertical cliffs. 3.4 Photo Points Photo point labels, coordinates, and rationale for the photos are include in Table 3. Photos are included in Appendix D. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 11 Table 3. Coordinates and Rationale for Photo Points Label Latitude Longitude Rationale Photo 1 37.909090° -122.476945° OHWM1 Photo 2 37.909295° -122.477961° OHWM2 Photo 3 37.908269° -122.477023° OHWM3 Photo 4 37.908650° -122.478451° OHWM4 Photo 5 37.909796° -122.477258° Swale topography Photo 6 37.908342° -122.477243° Ephemeral drainage ES2, SW2, and Arroyo Willow Thickets Photo 7 37.909244° -122.477883° Ephemeral drainage ES1 and SW1 Photo 8 37.908321° -122.476750° HTL Photo 9 37.909087° -122.476787° Coastal salt marsh 3.5 Identification of Section 404 Potentially Jurisdictional Waters Approximately 0.22 acres (ES1 and ES2) and 1,103 linear feet (0.05 aces and 328 feet for ES1 and 0.17 acres and 775 feet for ES2) of Section 404 other waters (ephemeral stream) were mapped in the parcel up to the OHWM (Figure 7; Photos 6 and 7, Appendix D). Ephemeral Stream (ES1 and ES2). Both ephemeral streams flow in a west to east direction and empty into San Francisco Bay. No water was observed in the streams at the time of the delineation, but evidence of recurrent water flow through the stream was observed in the form of a defined bed and bank. Ephemeral streams only flow during or immediately after rain events and both streams receive runoff from swales and sheet flow from surrounding upland areas Sections of the ephemeral streams may retain moisture longer than the surrounding upland areas and some areas may be mesic, especially in spring. At the time of the survey, no evidence of tidal action was observed within both streams. At the confluence of the streams and San Francisco Bay, both channels are above the HTL due to significant difference in elevation. Therefore, it is likely that both streams are not subject to regular tidal action. However, storm surge along with a king tide may result in temporary tidal inundation of both streams. 3.6 Identification of Section 404 Potentially Jurisdictional Wetlands Approximately 0.027 acres of Section 404 wetlands (seasonal wetlands, SW1 (0.023 acres) and SW2 (0.004 acres) were observed within the ephemeral streams: SW1 was located within the OHWM of ES1 and SW2 was located within the OHWM of SW2 (Figure 7; Photos 6 and 7, Appendix D). Seasonal Wetland (SW1 and SW2). Seasonal wetlands are generally inundated by shallow water, or have high groundwater levels, for variable periods from winter to spring, but they may be completely dry for most of the summer and fall. Dominant vegetation can include strongly 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 12 hydrophytic vegetation when the wetland is inundated or saturated and non-hydrophytic, upland species after the wetland dries out. 3.7 Identification of Potentially Jurisdictional Waters of the State The extent of Section 401 waters of the state (RWQCB jurisdiction) in the project area includes a total of 0.54 acres, including 0.25 acres within Section 404 jurisdiction as described above and an additional 0.29 acres of habitat up to the TOB of ES1 and ES2, including 0.20 acres of Eucalyptus – Tree of Heaven – Black Locust Groves Semi-natural Alliance, 0.053 acres of rural- residential, 0.029 acres of Arroyo Willow Thickets, and 0.013 acres of Coast Live Oak Woodland and Forest Alliance (Figure 7; Photos 6 and 7, Appendix D). Characteristics of waters of the U.S are described above in Sections 3.5 and 3.6. In the field, TOB was identified as the first distinct break in the bank slope above the active flood plain of the stream. The active floodplain is the area (e.g., bank or terrace) adjacent to and receiving frequent over-bank flow from the low-flow channel. The limits of the active flood plain were determined by evidence of scour along the stream banks, break in slope, a textural change in substrate (e.g., from cobble to a finer-grained matrix), and an increase in vegetative cover and maturity above the active flood plain. The current practice of the San Francisco RWQCB is to claim all areas up to the top of bank, but it may also claim riparian habitat that extends beyond the top of bank and areas within the 100-year flood plain. 3.8 Identification of CDFW Potentially Jurisdictional Habitats The parcel contains two ephemeral streams with defined bed and bank topography along with associated riparian habitat, as defined by CDFW. Riparian habitat was mapped by the dripline of trees at the outer extent of riparian vegetation. Streambed features were mapped by the top of bank (which can extend beyond the OHWM that is used to measure the extent of waters of the U.S.). The extent of CDFW jurisdiction includes all waters of the state (0.54 acres) as described in Section 3.7 above and an additional 0.51 acres of Arroyo Willow Thickets that extend beyond the TOB of the ephemeral streams. The extent of riparian habitat beyond the TOB was determined by the outer dripline of riparian vegetation (Figure 7; Photo 6, Appendix D). 4. References Baldwin, Goldman, Keil, Patterson, Ronatti, and Wilkin (eds.) 2012. The Jepson Manual: Vascular Plants of California. 2nd Edition. University of California Press, Berkeley, California. [CDFW] California Department of Fish and Wildlife. 2022. VegCAMP Natural Communities Lists. Accessed August 2022 from https://www.wildlife.ca.gov/data/vegcamp/natural-communities. Cowardin, L. M., V. Carter, F. C. Golet, and E. T. LaRoe. 1979. Classification of Wetlands and Deepwater Habitats of the United States. U. S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. Jamestown, ND: Northern Prairie Wildlife Research Center Home Page. (Version 04DEC98). 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 13 Deters, J. 2022. Antecedent Precipitation Tool (Version 1.0). U.S. Army Corps of Engineers Regulatory Program. Environmental Laboratory. 1987. U.S. Corps of Engineers Wetlands Delineation Manual. Department of the Army. Google Inc. 2022. Google Earth Pro (Version 7.1.5.1557) [Software]. Available from earth.google.com. Munsell. 2009. Soil Color Charts, Munsell Color X-rite. Grand Rapids, Michigan. [NRCS] Natural Resources Conservation Service. 2010. Field Indicators of Hydric Soils in the U.S.: A Guide for Identifying and Delineating Hydric Soils (Version 7.0). U.S. Department of Agriculture. Prepared with the National Technical Committee for Hydric Soils. [NRCS] Natural Resources Conservation Service. 2022a. Web Soil Survey. U.S. Department of Agriculture. Accessed September 022 from http://websoilsurvey.nrcs.usda.gov. [NRCS] National Resource Conservation Service. 2022b. National Hydric Soils List. Accessed September 2022 from http://www.nrcs.usda.gov/wps/portal/nrcs/main/soils/use/hydric/. [NWI] National Wetlands Inventory. 2022. Wetlands Mapper. U.S. Fish and Wildlife Service Accessed September 2022 from http://www.fws.gov/wetlands/Wetlands-Mapper.html. [USACE] U.S. Army Corps of Engineers. 2008a. U.S. Army Corps of Engineers. 2008. Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0), ed. J. S. Wakeley, R. W. Lichvar, and C. V. Noble. ERDC/EL TR-08-28. Vicksburg, MS: U.S. Army Engineer Research and Development Center. [USACE] U.S. Army Corps of Engineers. 2008b. A Field Guide to the Identification of the Ordinary High-Water Mark (OHWM) in the Arid West Region of the Western United States. August 2008. U.S. Army Engineer Research and Development Center. USACE] U.S. Army Corps of Engineers. 2016a. Updated Map and Drawing Standards for the South Pacific Division Regulatory Program. [USACE] U.S. Army Corps of Engineers. 2016b. Information Needed for Verification of Corps Jurisdiction, San Francisco District. Revised April 2016. https://www.spn.usace.army.mil/Portals/68/docs/regulatory/2%20-%20Info%20Req.pdf [USACE] U.S. Army Corps of Engineers 2020. National Wetland Plant List, version 3.5. Accessed August 2022 from http://wetland-plants.usace.army.mil/. U.S. Army Corps of Engineers Engineer Research and Development Center Cold Regions Research and Engineering Laboratory, Hanover, NH. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 14 Appendix A: Soil Survey Report United States Department of Agriculture A product of the National Cooperative Soil Survey, a joint effort of the United States Department of Agriculture and other Federal agencies, State agencies including the Agricultural Experiment Stations, and local participants Custom Soil Resource Report for Marin County, California 4576 Paradise Drive Tiburon CA NaturalResourcesConservationService August 30, 2022 Preface Soil surveys contain information that affects land use planning in survey areas. They highlight soil limitations that affect various land uses and provide information about the properties of the soils in the survey areas. Soil surveys are designed for many different users, including farmers, ranchers, foresters, agronomists, urban planners, community officials, engineers, developers, builders, and home buyers. Also, conservationists, teachers, students, and specialists in recreation, waste disposal, and pollution control can use the surveys to help them understand, protect, or enhance the environment. Various land use regulations of Federal, State, and local governments may impose special restrictions on land use or land treatment. Soil surveys identify soil properties that are used in making various land use or land treatment decisions. The information is intended to help the land users identify and reduce the effects of soil limitations on various land uses. The landowner or user is responsible for identifying and complying with existing laws and regulations. Although soil survey information can be used for general farm, local, and wider area planning, onsite investigation is needed to supplement this information in some cases. Examples include soil quality assessments (http://www.nrcs.usda.gov/wps/ portal/nrcs/main/soils/health/) and certain conservation and engineering applications. For more detailed information, contact your local USDA Service Center (https://offices.sc.egov.usda.gov/locator/app?agency=nrcs) or your NRCS State Soil Scientist (http://www.nrcs.usda.gov/wps/portal/nrcs/detail/soils/contactus/? cid=nrcs142p2_053951). Great differences in soil properties can occur within short distances. Some soils are seasonally wet or subject to flooding. Some are too unstable to be used as a foundation for buildings or roads. Clayey or wet soils are poorly suited to use as septic tank absorption fields. A high water table makes a soil poorly suited to basements or underground installations. The National Cooperative Soil Survey is a joint effort of the United States Department of Agriculture and other Federal agencies, State agencies including the Agricultural Experiment Stations, and local agencies. The Natural Resources Conservation Service (NRCS) has leadership for the Federal part of the National Cooperative Soil Survey. Information about soils is updated periodically. Updated information is available through the NRCS Web Soil Survey, the site for official soil survey information. The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or a part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require 2 alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. 3 Contents Preface....................................................................................................................2 How Soil Surveys Are Made..................................................................................5 Soil Map..................................................................................................................8 Soil Map................................................................................................................9 Legend................................................................................................................10 Map Unit Legend................................................................................................11 Map Unit Descriptions.........................................................................................11 Marin County, California..................................................................................13 141—Los Osos-Bonnydoon complex, 15 to 30 percent slopes..................13 References............................................................................................................16 4 How Soil Surveys Are Made Soil surveys are made to provide information about the soils and miscellaneous areas in a specific area. They include a description of the soils and miscellaneous areas and their location on the landscape and tables that show soil properties and limitations affecting various uses. Soil scientists observed the steepness, length, and shape of the slopes; the general pattern of drainage; the kinds of crops and native plants; and the kinds of bedrock. They observed and described many soil profiles. A soil profile is the sequence of natural layers, or horizons, in a soil. The profile extends from the surface down into the unconsolidated material in which the soil formed or from the surface down to bedrock. The unconsolidated material is devoid of roots and other living organisms and has not been changed by other biological activity. Currently, soils are mapped according to the boundaries of major land resource areas (MLRAs). MLRAs are geographically associated land resource units that share common characteristics related to physiography, geology, climate, water resources, soils, biological resources, and land uses (USDA, 2006). Soil survey areas typically consist of parts of one or more MLRA. The soils and miscellaneous areas in a survey area occur in an orderly pattern that is related to the geology, landforms, relief, climate, and natural vegetation of the area. Each kind of soil and miscellaneous area is associated with a particular kind of landform or with a segment of the landform. By observing the soils and miscellaneous areas in the survey area and relating their position to specific segments of the landform, a soil scientist develops a concept, or model, of how they were formed. Thus, during mapping, this model enables the soil scientist to predict with a considerable degree of accuracy the kind of soil or miscellaneous area at a specific location on the landscape. Commonly, individual soils on the landscape merge into one another as their characteristics gradually change. To construct an accurate soil map, however, soil scientists must determine the boundaries between the soils. They can observe only a limited number of soil profiles. Nevertheless, these observations, supplemented by an understanding of the soil-vegetation-landscape relationship, are sufficient to verify predictions of the kinds of soil in an area and to determine the boundaries. Soil scientists recorded the characteristics of the soil profiles that they studied. They noted soil color, texture, size and shape of soil aggregates, kind and amount of rock fragments, distribution of plant roots, reaction, and other features that enable them to identify soils. After describing the soils in the survey area and determining their properties, the soil scientists assigned the soils to taxonomic classes (units). Taxonomic classes are concepts. Each taxonomic class has a set of soil characteristics with precisely defined limits. The classes are used as a basis for comparison to classify soils systematically. Soil taxonomy, the system of taxonomic classification used in the United States, is based mainly on the kind and character of soil properties and the arrangement of horizons within the profile. After the soil 5 scientists classified and named the soils in the survey area, they compared the individual soils with similar soils in the same taxonomic class in other areas so that they could confirm data and assemble additional data based on experience and research. The objective of soil mapping is not to delineate pure map unit components; the objective is to separate the landscape into landforms or landform segments that have similar use and management requirements. Each map unit is defined by a unique combination of soil components and/or miscellaneous areas in predictable proportions. Some components may be highly contrasting to the other components of the map unit. The presence of minor components in a map unit in no way diminishes the usefulness or accuracy of the data. The delineation of such landforms and landform segments on the map provides sufficient information for the development of resource plans. If intensive use of small areas is planned, onsite investigation is needed to define and locate the soils and miscellaneous areas. Soil scientists make many field observations in the process of producing a soil map. The frequency of observation is dependent upon several factors, including scale of mapping, intensity of mapping, design of map units, complexity of the landscape, and experience of the soil scientist. Observations are made to test and refine the soil-landscape model and predictions and to verify the classification of the soils at specific locations. Once the soil-landscape model is refined, a significantly smaller number of measurements of individual soil properties are made and recorded. These measurements may include field measurements, such as those for color, depth to bedrock, and texture, and laboratory measurements, such as those for content of sand, silt, clay, salt, and other components. Properties of each soil typically vary from one point to another across the landscape. Observations for map unit components are aggregated to develop ranges of characteristics for the components. The aggregated values are presented. Direct measurements do not exist for every property presented for every map unit component. Values for some properties are estimated from combinations of other properties. While a soil survey is in progress, samples of some of the soils in the area generally are collected for laboratory analyses and for engineering tests. Soil scientists interpret the data from these analyses and tests as well as the field-observed characteristics and the soil properties to determine the expected behavior of the soils under different uses. Interpretations for all of the soils are field tested through observation of the soils in different uses and under different levels of management. Some interpretations are modified to fit local conditions, and some new interpretations are developed to meet local needs. Data are assembled from other sources, such as research information, production records, and field experience of specialists. For example, data on crop yields under defined levels of management are assembled from farm records and from field or plot experiments on the same kinds of soil. Predictions about soil behavior are based not only on soil properties but also on such variables as climate and biological activity. Soil conditions are predictable over long periods of time, but they are not predictable from year to year. For example, soil scientists can predict with a fairly high degree of accuracy that a given soil will have a high water table within certain depths in most years, but they cannot predict that a high water table will always be at a specific level in the soil on a specific date. After soil scientists located and identified the significant natural bodies of soil in the survey area, they drew the boundaries of these bodies on aerial photographs and Custom Soil Resource Report 6 identified each as a specific map unit. Aerial photographs show trees, buildings, fields, roads, and rivers, all of which help in locating boundaries accurately. Custom Soil Resource Report 7 Soil Map The soil map section includes the soil map for the defined area of interest, a list of soil map units on the map and extent of each map unit, and cartographic symbols displayed on the map. Also presented are various metadata about data used to produce the map, and a description of each soil map unit. 8 9 Custom Soil Resource ReportSoil Map 41956504195690419573041957704195810419585041958904195930419597041960104195650419569041957304195770419581041958504195890419593041959704196010545790 545830 545870 545910 545950 545990 546030 545790 545830 545870 545910 545950 545990 546030 37° 54' 37'' N 122° 28' 45'' W37° 54' 37'' N122° 28' 33'' W37° 54' 25'' N 122° 28' 45'' W37° 54' 25'' N 122° 28' 33'' WN Map projection: Web Mercator Corner coordinates: WGS84 Edge tics: UTM Zone 10N WGS84 0 50 100 200 300Feet 0 25 50 100 150Meters Map Scale: 1:1,820 if printed on A portrait (8.5" x 11") sheet. Soil Map may not be valid at this scale. MAP LEGEND MAP INFORMATION Area of Interest (AOI) Area of Interest (AOI) Soils Soil Map Unit Polygons Soil Map Unit Lines Soil Map Unit Points Special Point Features Blowout Borrow Pit Clay Spot Closed Depression Gravel Pit Gravelly Spot Landfill Lava Flow Marsh or swamp Mine or Quarry Miscellaneous Water Perennial Water Rock Outcrop Saline Spot Sandy Spot Severely Eroded Spot Sinkhole Slide or Slip Sodic Spot Spoil Area Stony Spot Very Stony Spot Wet Spot Other Special Line Features Water Features Streams and Canals Transportation Rails Interstate Highways US Routes Major Roads Local Roads Background Aerial Photography The soil surveys that comprise your AOI were mapped at 1:24,000. Warning: Soil Map may not be valid at this scale. Enlargement of maps beyond the scale of mapping can cause misunderstanding of the detail of mapping and accuracy of soil line placement. The maps do not show the small areas of contrasting soils that could have been shown at a more detailed scale. Please rely on the bar scale on each map sheet for map measurements. Source of Map: Natural Resources Conservation ServiceWeb Soil Survey URL: Coordinate System: Web Mercator (EPSG:3857) Maps from the Web Soil Survey are based on the Web Mercator projection, which preserves direction and shape but distorts distance and area. A projection that preserves area, such as the Albers equal-area conic projection, should be used if more accurate calculations of distance or area are required. This product is generated from the USDA-NRCS certified data as of the version date(s) listed below. Soil Survey Area: Marin County, CaliforniaSurvey Area Data: Version 15, Sep 9, 2021 Soil map units are labeled (as space allows) for map scales 1:50,000 or larger. Date(s) aerial images were photographed: Mar 7, 2021—Mar 31, 2021 The orthophoto or other base map on which the soil lines were compiled and digitized probably differs from the background imagery displayed on these maps. As a result, some minor shifting of map unit boundaries may be evident. Custom Soil Resource Report 10 Map Unit Legend Map Unit Symbol Map Unit Name Acres in AOI Percent of AOI 141 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 9.1 100.0% Totals for Area of Interest 9.1 100.0% Map Unit Descriptions The map units delineated on the detailed soil maps in a soil survey represent the soils or miscellaneous areas in the survey area. The map unit descriptions, along with the maps, can be used to determine the composition and properties of a unit. A map unit delineation on a soil map represents an area dominated by one or more major kinds of soil or miscellaneous areas. A map unit is identified and named according to the taxonomic classification of the dominant soils. Within a taxonomic class there are precisely defined limits for the properties of the soils. On the landscape, however, the soils are natural phenomena, and they have the characteristic variability of all natural phenomena. Thus, the range of some observed properties may extend beyond the limits defined for a taxonomic class. Areas of soils of a single taxonomic class rarely, if ever, can be mapped without including areas of other taxonomic classes. Consequently, every map unit is made up of the soils or miscellaneous areas for which it is named and some minor components that belong to taxonomic classes other than those of the major soils. Most minor soils have properties similar to those of the dominant soil or soils in the map unit, and thus they do not affect use and management. These are called noncontrasting, or similar, components. They may or may not be mentioned in a particular map unit description. Other minor components, however, have properties and behavioral characteristics divergent enough to affect use or to require different management. These are called contrasting, or dissimilar, components. They generally are in small areas and could not be mapped separately because of the scale used. Some small areas of strongly contrasting soils or miscellaneous areas are identified by a special symbol on the maps. If included in the database for a given area, the contrasting minor components are identified in the map unit descriptions along with some characteristics of each. A few areas of minor components may not have been observed, and consequently they are not mentioned in the descriptions, especially where the pattern was so complex that it was impractical to make enough observations to identify all the soils and miscellaneous areas on the landscape. The presence of minor components in a map unit in no way diminishes the usefulness or accuracy of the data. The objective of mapping is not to delineate pure taxonomic classes but rather to separate the landscape into landforms or landform segments that have similar use and management requirements. The delineation of such segments on the map provides sufficient information for the development of resource plans. If intensive use of small areas is planned, however, onsite investigation is needed to define and locate the soils and miscellaneous areas. Custom Soil Resource Report 11 An identifying symbol precedes the map unit name in the map unit descriptions. Each description includes general facts about the unit and gives important soil properties and qualities. Soils that have profiles that are almost alike make up a soil series. Except for differences in texture of the surface layer, all the soils of a series have major horizons that are similar in composition, thickness, and arrangement. Soils of one series can differ in texture of the surface layer, slope, stoniness, salinity, degree of erosion, and other characteristics that affect their use. On the basis of such differences, a soil series is divided into soil phases. Most of the areas shown on the detailed soil maps are phases of soil series. The name of a soil phase commonly indicates a feature that affects use or management. For example, Alpha silt loam, 0 to 2 percent slopes, is a phase of the Alpha series. Some map units are made up of two or more major soils or miscellaneous areas. These map units are complexes, associations, or undifferentiated groups. A complex consists of two or more soils or miscellaneous areas in such an intricate pattern or in such small areas that they cannot be shown separately on the maps. The pattern and proportion of the soils or miscellaneous areas are somewhat similar in all areas. Alpha-Beta complex, 0 to 6 percent slopes, is an example. An association is made up of two or more geographically associated soils or miscellaneous areas that are shown as one unit on the maps. Because of present or anticipated uses of the map units in the survey area, it was not considered practical or necessary to map the soils or miscellaneous areas separately. The pattern and relative proportion of the soils or miscellaneous areas are somewhat similar. Alpha-Beta association, 0 to 2 percent slopes, is an example. An undifferentiated group is made up of two or more soils or miscellaneous areas that could be mapped individually but are mapped as one unit because similar interpretations can be made for use and management. The pattern and proportion of the soils or miscellaneous areas in a mapped area are not uniform. An area can be made up of only one of the major soils or miscellaneous areas, or it can be made up of all of them. Alpha and Beta soils, 0 to 2 percent slopes, is an example. Some surveys include miscellaneous areas. Such areas have little or no soil material and support little or no vegetation. Rock outcrop is an example. Custom Soil Resource Report 12 Marin County, California 141—Los Osos-Bonnydoon complex, 15 to 30 percent slopes Map Unit Setting National map unit symbol: hf2f Elevation: 50 to 1,500 feet Mean annual precipitation: 25 to 35 inches Mean annual air temperature: 59 to 63 degrees F Frost-free period: 270 to 320 days Farmland classification: Not prime farmland Map Unit Composition Los osos and similar soils:60 percent Bonnydoon and similar soils:20 percent Minor components:17 percent Estimates are based on observations, descriptions, and transects of the mapunit. Description of Los Osos Setting Landform:Hills Landform position (two-dimensional):Backslope Landform position (three-dimensional):Side slope Down-slope shape:Concave Across-slope shape:Convex Parent material:Residuum weathered from sandstone and shale Typical profile H1 - 0 to 18 inches: loam H2 - 18 to 38 inches: clay H3 - 38 to 42 inches: bedrock Properties and qualities Slope:15 to 30 percent Depth to restrictive feature:20 to 40 inches to paralithic bedrock Drainage class:Well drained Runoff class: Very high Capacity of the most limiting layer to transmit water (Ksat):Moderately low to moderately high (0.06 to 0.20 in/hr) Depth to water table:More than 80 inches Frequency of flooding:None Frequency of ponding:None Available water supply, 0 to 60 inches: Low (about 5.7 inches) Interpretive groups Land capability classification (irrigated): 4e Land capability classification (nonirrigated): 4e Hydrologic Soil Group: D Ecological site: R015XC032CA - FINE LOAMY CLAYPAN Hydric soil rating: No Description of Bonnydoon Setting Landform:Hills Custom Soil Resource Report 13 Landform position (two-dimensional):Backslope Landform position (three-dimensional):Side slope Down-slope shape:Concave Across-slope shape:Concave Parent material:Residuum weathered from shale, or sandstone Typical profile H1 - 0 to 15 inches: gravelly loam H2 - 15 to 19 inches: bedrock Properties and qualities Slope:15 to 30 percent Depth to restrictive feature:10 to 20 inches to paralithic bedrock Drainage class:Somewhat excessively drained Runoff class: High Capacity of the most limiting layer to transmit water (Ksat):Moderately high to high (0.57 to 1.98 in/hr) Depth to water table:More than 80 inches Frequency of flooding:None Frequency of ponding:None Available water supply, 0 to 60 inches: Very low (about 1.9 inches) Interpretive groups Land capability classification (irrigated): 6e Land capability classification (nonirrigated): 6e Hydrologic Soil Group: D Ecological site: R015XC037CA - SHALLOW GRAVELLY LOAM Hydric soil rating: No Minor Components Tocaloma Percent of map unit:2 percent Hydric soil rating: No Slumps Percent of map unit:2 percent Hydric soil rating: No Slopes less than 15 percent Percent of map unit:2 percent Hydric soil rating: No Yorkville Percent of map unit:2 percent Hydric soil rating: No Unnamed, deep Percent of map unit:2 percent Hydric soil rating: No Unnamed, shallow Percent of map unit:2 percent Hydric soil rating: No Unnamed, gravelly Percent of map unit:2 percent Hydric soil rating: No Custom Soil Resource Report 14 Saurin Percent of map unit:2 percent Hydric soil rating: No Unnamed Percent of map unit:1 percent Landform:Depressions Hydric soil rating: Yes Custom Soil Resource Report 15 References American Association of State Highway and Transportation Officials (AASHTO). 2004. Standard specifications for transportation materials and methods of sampling and testing. 24th edition. American Society for Testing and Materials (ASTM). 2005. Standard classification of soils for engineering purposes. ASTM Standard D2487-00. Cowardin, L.M., V. Carter, F.C. Golet, and E.T. LaRoe. 1979. Classification of wetlands and deep-water habitats of the United States. U.S. Fish and Wildlife Service FWS/OBS-79/31. Federal Register. July 13, 1994. Changes in hydric soils of the United States. Federal Register. September 18, 2002. Hydric soils of the United States. Hurt, G.W., and L.M. Vasilas, editors. Version 6.0, 2006. Field indicators of hydric soils in the United States. National Research Council. 1995. Wetlands: Characteristics and boundaries. Soil Survey Division Staff. 1993. Soil survey manual. Soil Conservation Service. U.S. Department of Agriculture Handbook 18. http://www.nrcs.usda.gov/wps/portal/ nrcs/detail/national/soils/?cid=nrcs142p2_054262 Soil Survey Staff. 1999. Soil taxonomy: A basic system of soil classification for making and interpreting soil surveys. 2nd edition. Natural Resources Conservation Service, U.S. Department of Agriculture Handbook 436. http:// www.nrcs.usda.gov/wps/portal/nrcs/detail/national/soils/?cid=nrcs142p2_053577 Soil Survey Staff. 2010. Keys to soil taxonomy. 11th edition. U.S. Department of Agriculture, Natural Resources Conservation Service. http:// www.nrcs.usda.gov/wps/portal/nrcs/detail/national/soils/?cid=nrcs142p2_053580 Tiner, R.W., Jr. 1985. Wetlands of Delaware. U.S. Fish and Wildlife Service and Delaware Department of Natural Resources and Environmental Control, Wetlands Section. United States Army Corps of Engineers, Environmental Laboratory. 1987. Corps of Engineers wetlands delineation manual. Waterways Experiment Station Technical Report Y-87-1. United States Department of Agriculture, Natural Resources Conservation Service. National forestry manual. http://www.nrcs.usda.gov/wps/portal/nrcs/detail/soils/ home/?cid=nrcs142p2_053374 United States Department of Agriculture, Natural Resources Conservation Service. National range and pasture handbook. http://www.nrcs.usda.gov/wps/portal/nrcs/ detail/national/landuse/rangepasture/?cid=stelprdb1043084 16 United States Department of Agriculture, Natural Resources Conservation Service. National soil survey handbook, title 430-VI. http://www.nrcs.usda.gov/wps/portal/ nrcs/detail/soils/scientists/?cid=nrcs142p2_054242 United States Department of Agriculture, Natural Resources Conservation Service. 2006. Land resource regions and major land resource areas of the United States, the Caribbean, and the Pacific Basin. U.S. Department of Agriculture Handbook 296. http://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/soils/? cid=nrcs142p2_053624 United States Department of Agriculture, Soil Conservation Service. 1961. Land capability classification. U.S. Department of Agriculture Handbook 210. http:// www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs142p2_052290.pdf Custom Soil Resource Report 17 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 15 Appendix B: Plant Species Observed 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 16 Common Name Scientific Name Wetland Indicator Status1 Arroyo willow Salix lasiolepis FACW Bird’s foot trefoil Lotus corniculatus FAC Blue gum Eucalyptus globulus NI Blue wild rye Elymus glaucus FACU Bog rush Juncus effusus FACW Bristly ox-tongue Helminthotheca echioides FAC California bay laurel Umbellularia californica FAC California bee plant Scrophularia californica FAC California sagebrush Artemisia californica NI California wood fern Dryopteris arguta NI Cape ivy Delairea odorata FAC Cherry plum Prunus cerasifera NI Coast live oak Quercus agrifolia NI Coastal gumweed Grindelia stricta FACW Common rush Juncus patens FACW Common Pacific pea Lathyrus vestitus NI Common velvetgrass Holcus lanatus FAC Common verbena Verbena lasiostachys FAC Common yarrow Achillea millefolium NI Cordgrass Spartina sp. OBL Cotoneaster Cotoneaster sp. NI Coyote brush Baccharis pilularis NI Curly dock Rumix crispus FAC English ivy Hedera helix FACU English plantain Plantago lanceolata FAC Fat-hen Atriplex prostrata FACW Field bindweed Convolvulus arvensis NI Foxtail barley Hordeum murinum FACU French broom Genista monspessulana UPL Fremont cottonwood Populus fremontii NI Fringed willowherb Epilobium ciliatum FACW Giant reed Arundo donax FACW Harding grass Phalaris aquatica FACU Himalayan blackberry Rubus armeniacus FAC Italian rye grass Festuca (Lolium) perennis FAC Italian thistle Carduus pycnocephalus NI 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 17 Jersey cudweed Pseudognaphalium luteoalbum FACW Ladies’ tobacco Pseudognaphalium californicum NI Little rattlesnake grass Briza minor FAC Ngaio tree Myoporum laetum FACU Monterey pine Pinus radiata NI Olive Olea europaea NI Pampass grass Cortaderia jubata FACU Panic veldtgrass Ehrharta erecta NI Pennyroyal Mentha pulegium OBL Perennial pepperweed Lepidium latifolium FAC Picklweed Salicornia pacifica OBL Pink honeysuckle Lonicera hispidula FACU Poison oak Toxicodendron diversilobum FAC Rabbitsfoot grass Polypogon monspeliensis FACW Ripgut brome Bromus diandrus NI Saltgrass Distichlis spicata FAC Scarlet pimpernel Lysimachia arvensis FAC Silver wattle Acacia dealbata NI Slender oat Avena barbata NI Slender rush Juncus tenuis FACW Soft brome Bromus hordeaceus FACU Spiny sowthistle Sonchus asper FAC Sticky monkeyflower Diplacus aurantiacus FACU Tall flatsedge Cyperus eragrostis FACW Toyon Heteromeles arbutifolia NI Western sword fern Polystichum munitum FACU NI – Not included in the Arid West 2020 Regional Wetland Plant List (USACE 2020) 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 18 Appendix C: Arid West Data Forms US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP1 DWG Ephemeral Stream Concave 3 37.9091498 -122.4775843 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes R4SB7 4 4 4 4 4 4 Wetland with drainage C 14 30 ft r 2 2 100 0 0 40 80 25 75 0 0 0 0 65 155 2.4 5 ft r 5 ft r Lolium perenne 25 4 FAC Juncus tenuis 20 4 FACW Cyperus eragrostis 10 FACW Polypogon monspeliensis 10 FACW 65%30 ft r 4 4 35.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP1 0 12 10YR 3/2 85 5YR 3/4 15 C PL / M Sandy Clay Loam 4 4 4 4 4 4 4 4 US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP2 DWG Ephemeral Stream Concave 3 37.9091872 -122.4773295 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 4 4 4 4 4 4 C 14 30 ft r 1 2 50 0 0 0 0 15 45 0 0 15 75 30 120 4.0 5 ft r 5 ft r Bromus diandrus 15 4 UPL Lolium perenne 10 4 FAC Briza minor 5 FAC 30%30 ft r 70.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP2 0 12 10YR 3/1 99 5YR 5/6 1 C M Sandy Clay Loam 4 Does not meet redox dark surface since redox is less than 1% 4 4 4 4 4 4 US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP3 DWG Upland Undulating 5 37.9093578 -122.4776858 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 4 4 4 4 4 4 C 14 30 ft r 1 2 50 0 0 0 0 50 150 0 0 30 150 80 300 3.8 5 ft r 5 ft r Briza minor 50 4 FAC Avena barbata 30 4 UPL 80%30 ft r 20.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP3 0 12 10YR 5/4 100 Sandy Clay Loam 4 4 4 4 4 Upland grassland US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP4 DWG Swale Concave 7 37.9097359 -122.4771285 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 percent slopes 4 4 4 4 4 4 C 14 30 ft r 1 2 50 0 0 0 0 50 150 0 0 40 200 90 350 3.9 5 ft r 5 ft r Briza minor 50 4 FAC Avena barbata 40 4 UPL 90%30 ft r 10.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP4 0 10 10YR 5/4 100 Sandy Clay Loam 4 4 4 4 4 4 Sample point in swale US Army Corps of Engineers Arid West – Version 2.0 WETLAND DETERMINATION DATA FORM – Arid West Region Project/Site: City/County: Sampling Date: Applicant/Owner: State: Sampling Point: Investigator(s): Section, Township, Range: Landform (hillslope, terrace, etc.): Local relief (concave, convex, none): Slope (%): Subregion (LRR): Lat: Long: Datum: Soil Map Unit Name: NWI classification: Are climatic / hydrologic conditions on the site typical for this time of year? Yes No (If no, explain in Remarks.) Are Vegetation , Soil , or Hydrology significantly disturbed? Are “Normal Circumstances” present? Yes No Are Vegetation , Soil , or Hydrology naturally problematic? (If needed, explain any answers in Remarks.) SUMMARY OF FINDINGS – Attach site map showing sampling point locations, transects, important features, etc. Hydrophytic Vegetation Present? Yes No Hydric Soil Present? Yes No Wetland Hydrology Present? Yes No Is the Sampled Area within a Wetland? Yes No Remarks: VEGETATION – Use scientific names of plants. Dominance Test worksheet: Number of Dominant Species That Are OBL, FACW, or FAC: (A) Total Number of Dominant Species Across All Strata: (B) Percent of Dominant Species That Are OBL, FACW, or FAC: (A/B) Prevalence Index worksheet: Total % Cover of: Multiply by: OBL species x 1 = FACW species x 2 = FAC species x 3 = FACU species x 4 = UPL species x 5 = Column Totals: (A)(B) Prevalence Index = B/A = Hydrophytic Vegetation Indicators: Dominance Test is >50% Prevalence Index is ≤3.01 Morphological Adaptations1 (Provide supporting data in Remarks or on a separate sheet) Problematic Hydrophytic Vegetation1 (Explain) 1Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic. Absolute Dominant Indicator Tree Stratum (Plot size:) % Cover Species? Status 1. 2. 3. 4. = Total Cover Sapling/Shrub Stratum (Plot size: ) 1. 2. 3. 4. 5. = Total Cover Herb Stratum (Plot size: ) 1. 2. 3. 4. 5. 6. 7. 8. = Total Cover Woody Vine Stratum (Plot size:) 1. 2. = Total Cover % Bare Ground in Herb Stratum % Cover of Biotic Crust Hydrophytic Vegetation Present? Yes No Remarks: 4576 Paradise Drive-Tiburon Tiburon/Marin County 2022-08-25 Eric Crandall California SP5 DWG Ephemeral Stream Concave 2 37.9082845 -122.4768189 WGS 84 Los Osos-Bonnydoon complex, 15 to 30 perecent slopes R4SB7 4 4 4 4 4 4 C 14 30 ft r 1 1 100 25 25 0 0 5 15 0 0 5 25 35 65 1.9 5 ft r 5 ft r Mentha pulegium 25 4 OBL Carduus pycnocephalus 5 UPL Sonchus asper 5 FAC 35%30 ft r 4 4 65.0 4 US Army Corps of Engineers Arid West – Version 2.0 SOIL Sampling Point: Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Depth Matrix Redox Features (inches) Color (moist) % Color (moist) % Type1 Loc2 Texture Remarks 1Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains. 2Location: PL=Pore Lining, M=Matrix. Hydric Soil Indicators: (Applicable to all LRRs, unless otherwise noted.) Indicators for Problematic Hydric Soils3: Histosol (A1) Sandy Redox (S5) 1 cm Muck (A9) (LRR C) Histic Epipedon (A2) Stripped Matrix (S6) 2 cm Muck (A10) (LRR B) Black Histic (A3) Loamy Mucky Mineral (F1) Reduced Vertic (F18) Hydrogen Sulfide (A4) Loamy Gleyed Matrix (F2) Red Parent Material (TF2) Stratified Layers (A5) (LRR C) Depleted Matrix (F3) Other (Explain in Remarks) 1 cm Muck (A9) (LRR D) Redox Dark Surface (F6) Depleted Below Dark Surface (A11) Depleted Dark Surface (F7) Thick Dark Surface (A12) Redox Depressions (F8) 3Indicators of hydrophytic vegetation and Sandy Mucky Mineral (S1) Vernal Pools (F9) wetland hydrology must be present, Sandy Gleyed Matrix (S4) unless disturbed or problematic. Restrictive Layer (if present): Type: Depth (inches):Hydric Soil Present? Yes No Remarks: HYDROLOGY Wetland Hydrology Indicators: Primary Indicators (minimum of one required; check all that apply) Secondary Indicators (2 or more required) Surface Water (A1) Salt Crust (B11) Water Marks (B1) (Riverine) High Water Table (A2) Biotic Crust (B12) Sediment Deposits (B2) (Riverine) Saturation (A3) Aquatic Invertebrates (B13) Drift Deposits (B3) (Riverine) Water Marks (B1) (Nonriverine) Hydrogen Sulfide Odor (C1) Drainage Patterns (B10) Sediment Deposits (B2) (Nonriverine) Oxidized Rhizospheres along Living Roots (C3) Dry-Season Water Table (C2) Drift Deposits (B3) (Nonriverine) Presence of Reduced Iron (C4) Crayfish Burrows (C8) Surface Soil Cracks (B6) Recent Iron Reduction in Tilled Soils (C6) Saturation Visible on Aerial Imagery (C9) Inundation Vis ble on Aerial Imagery (B7) Thin Muck Surface (C7) Shallow Aquitard (D3) Water-Stained Leaves (B9) Other (Explain in Remarks) FAC-Neutral Test (D5) Field Observations: Surface Water Present? Yes No Depth (inches): Water Table Present? Yes No Depth (inches): Saturation Present? Yes No Depth (inches):(includes capillary fringe) Wetland Hydrology Present? Yes No Describe Recorded Data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: - - - - - - - - SP5 0 6 Very Rocky and Sandy, very little soil substrate 4 4 Riverwash material, assumed hydric 4 4 4 4 4 4 4 SP1 SP2 SP3 SP4 SP5 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 19 Appendix D: Photographs 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 20 Photo 1. OHWM1 sampling point in ephemeral drainage ES1. OWHM indicators observed included exposed root hairs and roots below an intact soil layer and break in bank slope. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 21 Photo 2. OHWM2 sampling point in ephemeral drainage ES1. OHWM indicators observed included break in bank slope and vegetation stripped from active areas of the channel. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 22 Photo 3. OHWM3 sampling point in ephemeral drainage ES2. OHWM indicators observed included exposed root hairs and roots below an intact soil layer and break in bank. Notice that the drainage is less than 2 feet across at this point. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 23 Photo 4. OHWM4 sampling point in ephemeral drainage ES2. OHWM indicators observed included exposed root hairs and roots below an intact soil layer and break in bank. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 24 Photo 5. Swale downslope of culvert C1. Note the lack of a well-defined bed, bank, and channel indicating infrequent and low volume flows. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 25 Photo 6. Ephemeral drainage ES2 and seasonal wetland SW2 with Arroyo Willow Thickets Alliance and San Francisco Bay in the background. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 26 Photo 7. Ephemeral drainage ES2, seasonal wetland SW1 within the rural-residential land cover. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 27 Photo 8. The HTL was delineated in the field using the limits of bank erosion and wrack line. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 28 Photo 9. Coastal salt marsh within the parcel. The HTL corresponded to the limit of marsh vegetation. 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 29 Appendix E: Aquatic Resources Table 4576 Paradise Drive Delineation of Wetlands and Other Waters September 2022 MIG 30 Waters Name State Cowardin Code HGM Code Measurement Type Amount Units Water Type Latitude Longitude Local Waterway ES1 CA R4SB3 Riverine Area 0.05 Acres A2TRIBINT 37.909244° -122.477883° San Francisco Bay ES2 CA R4SB3 Riverine Area 0.17 Acres A2TRIBINT 37.908342° -122.477243° San Francisco Bay SW1 CA R4SB7 Riverine Area 0.023 Acres A2TRIBINT 37.909149° -122.477584° San Francisco Bay SW2 CA R4SB7 Riverine Area 0.004 Acers A2TRIBINT 37.908284° -122.476818° San Francisco Bay ALEXANDER ORTIZ CONSULTING ENGINEER 1250I Newell Avenue , #221 Walnut Creek, California 94596 925/876-1955 State of California July 17, 2023 Department of Housing and Community Development A1288CG Sacramento, California Via E-mail Attention: Mrs. Melinda Coy (Melinda.Coy@hcd.ca.gov) Mr. Brandon Yung (Brandon.Yung@hcd.ca.gov) RE: Geotechnical Civil Engineering Consultation Response to Concerns Voiced by Sierra Pines Group, LLC Official Proposed Residential Property Redevelopment 4576 Paradise Drive Tiburón, California Ladies, Gentlemen: Mr. Eric Crandall of Sierra Pines Group, LLC, has communicated to this office that your bureau has received a complaint, dated July 10, 2023, that was prepared by Mr. Tony François of Briscow, Ivester, and Bazel, LLP, regarding the proposed redevelopment of their property at the subject site. Discussions of this claim with Mr. Crandall have indicated that Mr. François judges in unsubstantiated fashion that the property is unsuitable for residential redevelopment as presently proposed. This e-letter presents reply, from a geotechnical civil engineering standpoint, to said dismissal. In preparing this correspondence, it is also understood that, as a companion obstacle, suit has been filed against the Town of Tiburón through Mr. François’ outfit. . Pertinent Background Heretofore, this office was engaged by Sierra Pines Group, LLC, to perform a geotechnical engineering study of the subject site directed at providing pertinent professional design and construction recommendations required for a substantial multi- unit residential project proposed as redevelopment of the property. The resulting technical report was the product of the con- duct of field investigation and companion data procurement programs and of engineering analyses. The scope of work fur- nished included (1) site reconnaissance, (2) project discussions with Mr. Crandall, (3) review of available and published ge- otechnical and geologic information, (4) a field investigation program, (5) engineering analyses of the data that were col- lected, and (6) report preparation. Site geotechnical conditions found in-situ were discussed and sound opinions, conclusions, and recommendations appropriate to the project were presented. Discussion On the basis of the field and office studies expounded in the aforementioned report, from a geotechnical civil engineering standpoint, the subject site is suitable for residential development such as and/or similar to that being contemplated; densities of 10 to 12.4 dwelling units per acre, and greater, included. Under the auspices of the employment of common logic, there are no associated siting constraints for any foreseen site improvements provided that the pertinent conclusions and recom- mendations presented in the report are incorporated into the required design and construction of the ultimate project. For additional information, reference to the text of the report of the study may be made. The opinions and conclusions presented in this letter are made in accordance with generally accepted civil engineering prin- ciples and practices. This warranty is in lieu of all other warranties either express or implied. If you have any questions regarding this letter, please call. Yours sincerely, Alexander Ortiz Copies: Addressee (Through Mrs. Coy and Mr. Yung – 1 Each) Sierra Pines Group, LLC (1 – Via E-Mail) Attention: Mr. Eric Crandall ALEXANDER ORTIZ CONSULTING ENGINEER 1250I Newell Avenue , #221 Walnut Creek, California 94596 925/876-1955 August 21, 2023 A1288CG Town of Tiburón Community Development Department, Planning Division Via E-mail: dtasini@townoftiburón.org Attention: Miss Dina Tasini RE: Geotechnical Civil Engineering Consultation Response to Apprehensions Aired by Tiburón Resident Proposed Residential Site Redevelopment Sierra Pines Group, LLC, Property at 4576 Paradise Drive Tiburón, California Ladies, Gentlemen: In following the request of Mr. Eric Crandall of Sierra Pines Group, LLC, this e-letter presents comment, from a geotechnical civil engineering standpoint, to complaints that were expressed by Mr. Matthew Le Merle, owner of an outlying property located at 4545 Paradise Drive, pertinent to the realization of the referenced proposed subject project. His objections were conveyed (1) in his presentation titled, “Ephemeral Streams, Marsh, and Landslide Zone, Ring Mountain, Tiburón, Marín County, California”, dated August 13, 2023, and (2) in an August 17, immediate, thereof follow-up synopsis. These were delivered to Mesdames Christy Fong and Kris Wyek of your bureau; the subject site being referred to therein as “Site H”. Review of Mr. Le Merle’s opera indicates that he judges that the subject site is unsuitable for residential redevelopment as presently proposed; but is acceptable to him in a form that he considers to be more just. Pertinent Background In his August 12, 2023, e-mail transmittal of production (1), cited above, Mr. Le Merle declared that, “. . . , given that I am a lifelong geographer and geomorphologist, I took a stab at creating a report for inclusion in both files for Site H 92 unit de- velopment, . . . “, and for another property that is unrelated to the subject of this correspondence. In his presentations Mr. Le Merle furthermore states that he has long-time and continuous associations with prestigious British geographic societies, and that he has been a special advisor to United States, State of California, San Francisco Bay Area, and City of San Francisco government and/or government-associated organizations. Hence, it is being understood that he has thereby established these credentials as the basis (1) for performing research beyond that of his personal interest in the development of Site H, (2) for performing technical analyses of the data that he collected, and (3) for providing to your bureau, your mayor, and your town council apropos opinions, conclusions, and directives pertinent to the subject project. And it is also being understood that his associations as special advisor to government agencies, as aforementioned, have been conducted under his capacity of geog- rapher and/or geomorphologist. Heretofore, this office was engaged by Sierra Pines Group, LLC, to perform a geotechnical engineering study of the sub- ject site directed at providing pertinent professional design and construction recommendations required for a substantial multi-unit residential project proposed as redevelopment of the property. The resulting technical report was the product of the conduct of field investigation and companion data procurement programs and of associated engineering. The scope of work furnished included (1) site reconnaissance, (2) project discussions with Mr. Crandall, (3) review of available and pub- lished geotechnical and geologic information, (4) a field investigation program, (5) engineering analyses of the data that were collected, and (6) report preparation. Site geotechnical conditions found in-situ and, as applicable and/or as deemed neces- sary, beyond its borders were discussed, and sound opinions, conclusions, and recommendations appropriate to the project were presented. The undersigned’s overall familiarity with the project site and with its influencing surroundings (extending to a radius well beyond the summit of Ring Mountain) commenced with his initial reconnaissance conducted on May 22, 2019; his familiarity with the neighborhood dating to 1987. About Mr. Le Merle Information freely provided and available to the public personally by Mr. Le Merle, indicate that he professionally identifies himself by the title of “Investor;”; his transmittal to your bureau further distinguishing him currently as managing partner and chief executive officer of a virtual currency concern. During his professional lifetime, he has held numerous posts, executive A1288CG Page 2 and rank-and-file, at numerous institutions associated to the world of finance; and he is an author of best-seller magnitude. Numerous involvements, engagements, connections, associations, publications, et cétera are listed as companion to many apparently high-risk investment enterprises dating back to the early 1980s (his college days); the history of his education originating in the early 1970s. Mr. Le Merle’s available résumé is nothing less than very impressive. And tangible results of his acumen as an investor of very high regard and renowned accomplishment in this field are exemplified by his executive positions and such landmarks as is his residence. Mr. Le Merle reports having earned the degree of Master of Arts in geography at Oxford University nearly 40 years ago. However, other than in his herein-cited, freshly-issued publications, any indication regarding his professional experience within the realms of the fields of geography and geomorphology appears to be nonexistent. In further pertinence to Mr. Le Merle, it is also considered noteworthy (1) that 4545 Paradise Drive is not located within in- fluencing immediacy of the subject site, and vice versa, (2) that he did not simply identify himself to you as a concerned citi- zen voicing a series of personal complaints, (3) that he did not furnish record of license and/or certification that officially indorsed him to present his work as authority, and (4) that he did not authenticate any of his presentations with his signature. Furthermore, other than informing having made site visits unrelated to the subject project in 2006 and 2016, no indication that any sort of personal applicable reconnaissance and/or three-dimensional field work was conducted in the development of his so-declared authoritative compositions; Sierra Pines Group, LLC, having purchased the property in 2019. Residential Housing Many adjectives may be employed to refine, classify, clarify, modify, identify association with, et cétera, a subject. In con- ducting this discussion, the subject is housing – residential housing in particular – and how the subject site (4576 Paradise Drive) may host residential housing. Mr. Le Merle appears to have a preoccupation with the type of housing that is identified in his work as, “high density”. The undersigned also has a preoccupation. But it is with the type of housing that is identified in his work as, “residential”. Many other identifier possibilities to describe the subject of “housing” exist. Some of these identifiers (and there are likely dozens) are included in the logic model flowcharts presented immediately below (which should be self-explanatory) to illustrate the suitability, from a geotechnical civil engineering point-of-view, of the subject site to residential housing. “Anything other than low density housing should not be approved,” is the statement that concludes the summary that was presented in Mr. Le Merle’s first opus. The undersigned considers that this statement presents a level of prejudice toward residential housing at the site that is completely unwarranted. About Mr. Le Merle’s Presentations Mr. Le Merle’s presentations appear to be the product of an agglomeration of cut-and-paste operations of readily available subject matter found online amalgamated somehow through “stabbing” to create a “report”. Furthermore, his information is presented in a technically alarming, inflammatory, misleading, and inaccurately interpreted manner. Notwithstanding, evalu- ation of the work that was introduced to you may be succinctly summarized through the assessment of the one-and-only drawing that was apparently crafted by his hand: Vis-à-vis Site H, the substance of presentation titled, “Exhibit G, Approximate Map of Ephemeral Stream 4545, Marsh and Landslides”, found in his August 13 production, is evaluated to be beyond the ken of anything that can technically be dis- cussed with any sort of rationality. Lamentably, this exhibit exemplifies the body of his work. “Fake news” that, actually, is fake. Before the advent of the Internet, information such as that employed by Mr. Le Merle in the creation of his presentations, though specialized and obscure by its nature, was readily available to the public. However, it was generally found in the form of printed material that was cumbersome and sometimes difficult and expensive to procure. Therefore, it was typically secured only by people who had special interests and/or professional needs and understood how to treasure its availability and to properly employ it. Mr. Le Merle’s work is an unfortunate example of the misuse of available material found breezily online. A1288CG Page 3 Conclusions Given the aforestated circumstances, it is difficult to coin proper narrative concerning Mr. Le Merle’s work. However, by understanding the domain of geotechnical engineering, the reality of the matter, is that geographic and geologic conditions found in situ at Site H are not unusual for Tiburón. Hence, as many others have heretofore already locally done, the property can be readily redeveloped through the employment of present-day, generally accepted standards of, conceptual, design, en- gineering, and construction practice. The site is surrounded by long-existent development; influencing uphill sites having to have handled predominantly worse site development issues than the subject. It should also be observed that available and published information analyzed in conjunction with developing opinions conclusions and recommendations for the redevel- opment of Site H, considerable amounts of which are not found online, date to the early 1870s. It should also be observed that, on the basis of the field and office studies expounded in the aforementioned report that was prepared by this office, from a geotechnical civil engineering standpoint, the subject site is suitable for residential develop- ment such as and/or similar to that being presently contemplated. Under the auspices of the employment of common logic, there are no associated siting constraints for any foreseen site improvements provided that the pertinent conclusions and rec- ommendations presented in the report are incorporated into the required design and construction of the ultimate project. For additional information, reference to the text of the report of the study may be made. The opinions and conclusions presented in this letter are made in accordance with generally accepted civil engineering prin- ciples and practices. . This warranty is in lieu of all other warranties either express or implied. If you have any questions regarding this letter, please call. Yours sincerely, Alexander Ortiz Copies: Addressee (1) Sierra Pines Group, LLC (1 – Via E-Mail) Attention: Mr. Eric Crandall 8/16/23, 2:31 PM AOL Mail - RE: 4576 Paradise Drive about:blank 1/2 RE: 4576 Paradise Drive From:Nicole Momsen (nmomsen@marinwater.org) To:eric94920@aol.com Date:Wednesday, August 16, 2023 at 02:30 PM PDT Hello, That is correct. Water service is currently available for the project. The applicant would be required to comply with the District's rules and regulations and pay appropriate fees and charges. Water availability will be dependent on the District’s water resources and will be determined at that time. Please note, required fire flows for new development are set by the fire department. If the District’s existing system is inadequate to provide the required fire flow, the applicant will be required to bear the cost of the necessary improvements needed to meet said flow. Thank you, Nicole Momsen Engineering Technician Office: 415.945.1531 nmomsen@marinwater.org 220 Nellen Avenue, Corte Madera, CA 94925 From: Eric Crandall <eric94920@aol.com> Sent: Wednesday, August 16, 2023 2:24 PM To: Nicole Momsen <nmomsen@marinwater.org> Subject: 4576 Paradise Drive Nicole, Thanks for the call back yesterday regarding MMWD's ability to potentially provide water service to an additional 93 units at 4576 Paradise Drive in Tiburon. My understanding is that MMWD currently has the capacity to provide water service to an additional 93 units on my site, and that there are no known constraints to providing that water service. I also understand that only once an application is submitted, can a definitive answer be provided regarding service. Is that accurate? 8/16/23, 2:31 PM AOL Mail - RE: 4576 Paradise Drive about:blank 2/2 Thank you, Eric Crandall 1260 Lake Blvd, Suite 226 | Davis, CA 95616-5668 | 530.757.1291 TheMcMullenCompany.com August 30, 2023 Eric Crandall Sierra Pines Group, LLC 4576 Paradise Drive Tiburon, CA 94920 Re: Assessor’s Parcel No. 038-142-02 located in Tiburon, California Analysis of Fire Flow Requirements and Land Use Density Dear Mr. Crandall, The following reflects my analysis and opinions regarding the fire code requirements and land use density decisions, specifically as they apply to Assessor’s Parcel No. 038-142-02 in Tiburon, California. The information contained herein is based on over 50 years of fire-related experience, including having served as the Chief California State Fire Marshal and a former Commissioner with the California Building Standards Commission which adopts the California Fire Code. As a court qualified forensic fire expert, I have participated in the development of fire codes and standards at both the State and National levels, and I am attaching my curriculum vitae to this report that further identifies my qualifications. My overview of the area in question and specifically AP No. 038-142-02, included observations made electronically of the County of Marin Assessor’s Parcel records and maps, various views from Google Earth mapping and general street circulation maps. In addition, I have reviewed issues identified in the Paradise Drive Visioning Plan prepared by the Marin County Community Development Agency in 1998 and the current fire code requirements of the Tiburon Fire Protection District (TFPD) in terms of the fire flow. It is my understanding there is no specific development proposal pending; therefore, this report is general in nature regarding fire flow and land use density for this parcel. Land Use Density and the Fire Code of TFPD The Fire Code as amended and adopted by TFPD does not address land use density in residential neighborhoods in terms of establishing the minimum fire flow requirements. However, as a point of discussion, the basis for establishing the minimum fire flow requirements for residential communities consisting of one and two-family dwellings as well as townhouses within the TFPD’s jurisdiction is determined by the following factors: (1) Square footage of the building. (2) Automatic fire sprinkler systems. (3) Fire rated separations where required. 1260 Lake Blvd, Suite 226 | Davis, CA 95616-5668 | 530.757.1291 TheMcMullenCompany.com Within the TFPD, all one and two-family dwellings and townhouses are required to be provided with automatic fire sprinklers throughout without exception. The calculations for the required fire flow based on square footage of the largest single building without fire rated separations is divided into two-categories; buildings less than 3,600 square feet and buildings exceeding 3,600 square feet. A minimum fire flow for buildings in the aforementioned categories that is less than 3,600 square feet in area is 1,000 gallons per minute. Buildings over 3,600 square feet are individually calculated in incremental increases as outlined in the TFPD’s fire code. Fire Suppression Water Supplies There is no correlation between land use density and the fire flow requirements for buildings and there are no pending applications for development on the parcel in question. For discussion purposes, the County of Marin Paradise Drive Visioning Plan from 1998 suggests that downhill sloping properties along Paradise Drive have the potential for fire flows of 1,000 gallons per minute. It is important to note that the subject property has access to Trinidad Drive and could take advantage of a connection to that water main as well to supplement the water supply at the Trinidad connection. In the event that a development proposal is filed and it was determined that the required fire flows were not adequate, this could be corrected through additional storage or several other methods of fire flow increases. Summary It is my professional and expert opinion that any consideration of increasing use densities is not related to fire flows. The fire code as adopted by the TFPD does not use density to calculate and identify required fire flow for one and two-family dwellings and townhouses. There are multiple safeguards in place once a development plan is submitted to amend the plans with all the various fire code requirements set forth by the TFPD and the applicable building code, including the determination of the required fire flow. Further, it is my expert opinion that a decision to increase the requested land use density for 93 units on the parcel in question should not be based on an unknown factor such as fire flow as the design criteria for the site will eventually dictate the allowable density. It is my expert opinion that a decision to increase the requested land use density for the parcel in question is not based on fire flow. Respectfully submitted, James F. McMullen Forensic Fire Expert 8/4/23, 5:31 PM AOL Mail - Town of Tiburon Housing Element-Inclusion of Site H about:blank 1/2 Town of Tiburon Housing Element-Inclusion of Site H From:Eric Crandall (eric94920@aol.com) To:Melinda.Coy@hcd.ca.gov; brandon.yung@hcd.ca.gov Date:Tuesday, June 6, 2023 at 01:21 PM PDT Ms. Coy and Mr. Yung, I am the owner of 4576 Paradise Drive in Tiburon, which is included in the Town of Tiburon’s Housing Element as Site H. I am writing to confirm that there is owner interest in developing housing on this site within the planning period, and that we have done a significant amount of due diligence, and determined that the density proposed is feasible. Site H has a realistic and demonstrated potential for redevelopment in this current housing cycle. Among other things, we had an environmental assessment done, a geotechnical site study, and had experienced and knowledgeable developers (Harmonie Park) evaluate the site at the density proposed by the Town. Harmonie Park consulted with architects and civil engineers who they've worked with on similar projects to evaluate the feasibility of the site. We have determined that development at the density proposed by Tiburon is absolutely feasible, and the site is unquestionably suitable for housing at the proposed density. The reason for my letter is that there are some nearby residents who are opposed to the inclusion of Site H in the Housing Element, and are asking the Town of Tiburon to remove it because they claim that it is not suitable as a proposed site under HCD guidelines (along with a number of other reasons like traffic, neighborhood compatibility, etc). Furthermore, these residents have said, "Tiburon cannot afford to risk rejection of its Housing Element, due to Site H . . ." It is my belief that because Tiburon adopted their Housing Element without removing Site H, these same residents may contact HCD in an attempt to convince the State that Site H is not suitable for residential development at this density. Should you receive such communications, please consider the motivation behind these comments. Like many sites in Tiburon, there are various constraints at Site H. These constraints are why this 10 acre site is only being projected to accommodate an additional 93 units. Were it not for these constraints, the proposed density could be much higher. While these nearby residents have claimed the property isn’t suitable for development because it is in a flood zone, is in a very high fire risk zone, and contains protected wetlands, there is no documentation to support these false claims. While the property is in a WUI zone, it is not in a very high fire severity zone as claimed. This property fronts the San Francisco Bay, but is not in a flood zone. While there are two small ephemeral drainageways on the property, and permits may be required from the Department of Fish and Game if they are disturbed, the drainageways do not significantly reduce the site’s development potential. There are no wetlands on the property as defined by the US Fish and Wildlife Service, which is the same definition used by the Town of Tiburon. Both myself and Harmonie Park have consulted with experts to determine if Site H is viable and suitable for residential development at the density proposed in Tiburon’s Housing Element. All parties involved determined that it is absolutely viable, and suitable for development. 8/4/23, 5:31 PM AOL Mail - Town of Tiburon Housing Element-Inclusion of Site H about:blank 2/2 Harmonie Park has submitted its own letter, stating that they performed due diligence on the site and determined it was a good site for development at the proposed density. While I am sympathetic to the residents in close proximity to the site who don’t want multifamily housing built near them, their claims that the site is not suitable for residential development at the density proposed by the Town of Tiburon is not true, and simply a last ditch effort to get a viable site removed from the Housing Element. Should you have any questions or concerns, please feel free to contact me. Thank you, Eric Crandall Sierra Pines Group LLC 8/4/23, 5:30 PM AOL Mail - 4576 Paradise Drive (Site H) in Tiburon's Housing Element about:blank 1/1 4576 Paradise Drive (Site H) in Tiburon's Housing Element From:Eric Crandall (eric94920@aol.com) To:melinda.coy@hcd.ca.gov; brandon.yung@hcd.ca.gov Date:Tuesday, July 11, 2023 at 12:39 PM PDT Ms. Coy and Mr. Yung; I am the owner of the property located at 4576 Paradise Drive in Tiburon, which has been included in the Town of Tiburon’s Housing Element as Site H. I had previously submitted a letter letting you know that there was owner interest in developing this site, that experts had determined that the site was suitable, and that the density proposed by the Town was feasible. I also explained that there were neighbors in close proximity to the site who I anticipated may contact you in an effort to convince you that my site is not viable. I wanted to see if you had received any correspondence regarding my site, and if so, if it might be possible to receive copies of what was received. I also wanted to let you know that I am available to answer any questions you may have about my property. Thank you, Eric Crandall Sierra Pines Group LLC EricCrandall@aol.com (415) 250-4434 Ms. Coy and Mr. Yung; Thank you for providing me with a copy of the letter you received from Tony Francois of Briscoe Ivester & Bazel that was sent on behalf of some neighbors of my property who have organized as The Committee to Preserve the Paradise Cove Salt Marsh, Tidelands, and Neighborhood Safety to oppose the inclusion of Site H in Tiburon’s Housing Element. After reviewing it, I have a number of general comments. In addition, I would like to provide you with some additional details of the process we went through to determine that Site H was suitable for 10-12.4 units per acre. Finally, I would like to address some of the many false, inaccurate, and misleading claims Mr. Francois makes in his letter. Affirmatively Furthering Fair Housing While the State of California, and HCD have taken great strides to affirmatively further fair housing, wealthy residents in neighborhoods of single-family homes are still attempting to utilize their resources to protect their neighborhoods from the changes required by the State. The fact that these neighbors can use their resources to delay or prevent changes in their neighborhoods contradicts State Law. Neighborhoods with fewer resources are unable to mount similar challenges, leading to a continuation of the same patterns of segregation which the law seeks to change. According to HCD’s Guidance on Affirmatively Furthering Fair Housing, municipalities and State agencies must: (1) administer programs and activities relating to housing and community development in a manner that affirmatively furthers fair housing, and (2) take no action that is inconsistent with this obligation. Affirmatively furthering fair housing means “taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities.” These new statutory obligations charge all public agencies with broadly examining their existing and future policies, plans, programs, rules, practices, and related activities and make proactive changes to promote more inclusive communities. I would suggest that the Town of Tiburon is taking their obligation to affirmatively further fair housing seriously, and included Site H, despite it being unpopular with neighbors, in order to follow the law. I would encourage HCD to keep this in mind related to letters of opposition when they are received from neighbors attempting to maintain the status quo. While HCD has an obligation to evaluate comments received on Housing Elements to ensure that Housing Elements conform with statutory requirements, HCD should consider the entirety of the comments received. By that, I mean who is the comment being made by, what is their motivation for making the comment, and what changes is the commenter requesting. I believe that these factors need to be considered in order for HCD to assist cities in meeting their obligations to affirmatively further fair housing. If HCD were to give the same weight to a letter from an attorney representing a group of neighbors seeking to prevent development near them that they give to a letter from a developer demonstrating the viability of a site for development, it would be impossible to overcome the existing patterns of segregation, as only wealthy residents are able to retain expensive attorneys to draft 74-page letters (with 9 exhibits) to try and prevent housing near them. Is Site H Suitable for Development at a Density of 10-12.4 Units Per Acre? The letter goes into great detail about why Site H is not suitable for development. The motivation of Mr. Francois’ clients is clear, and the letter uses misinformation, half-truths, and creative wording to try and argue that our nearly 10 acre site is only suitable for up to four units. This is not true, as agreed by the numerous experts I consulted with. Not only is the site suitable for development, but it will provide much needed housing in Tiburon, including 20% of units that are affordable to lower or moderate-income residents as required by Tiburon’s inclusionary housing ordinance. We did extensive due diligence in determining the development potential of the site. While the neighbors obtained copies of our Biological Constraints Analysis and Delineation of Waters through a data leak, they have not spoken to the biologist who wrote the reports to determine what effect the potential constraints identified might pose to future development as we have. They have also not seen our topographic map, our boundary survey, our geotechnical report, or our archaeological review, and have not been party to the conversations we’ve had with developers, civil engineers, architects and biologists about developing the site. The letter’s conclusion that the site can only feasibly accommodate four units on nearly 10 acres is not consistent with the opinion you received from Harmonie Park Development, nor is it supported by the facts. The State is in a housing crisis because of densities like the one Mr. Francois’ clients think are appropriate for a 10 acre infill site. Tiburon did not arbitrarily assign Site H a density of 10 units per acre as the letter alleges. The Town of Tiburon initially contacted me in August of 2022 and asked if I’d be interested in changing the density on my property to 20 units per acre. At that time, I started due diligence to determine what density the site could realistically accommodate. This included the following: -Boundary Survey -Topographic Map -Biological Constraints Analysis -Archaeological Assessment -Delineation of Waters of the United States and state -Geotechnical Report -Consulting with developers -Consulting with commercial realtors -Consulting with civil engineers -Consulting with architects When the Town Council was discussing my site at their meeting, I became aware that they were not going to be using my site for affordable housing, which meant it could be set at a density lower than 20 units per acre. I let Town Staff know that my site could accommodate up to 10 units per acre across the entire site. This number was not just pulled out of thin air. I had been consulting with developers and civil engineers who were provided with the reports we had done. These experts had analyzed the reports, spoken to their authors, and visited the site. Many discussions were had to try and determine what a realistic capacity was. While the letter claims the density of 10 units per acre was arbitrarily made up by the Town to meet their shortfall, that couldn’t be further from the truth. In addition, it is inconsistent with the quote provided from a Town Council meeting where my site was being discussed, which says: “The property owner for 4576 Paradise has emailed me during this meeting. . . and said, ‘Perhaps you could increase my density and I could use a greater portion of my property and I could potentially do more units at a lower density on more of the property; for instance 9 acres at 10 units per acre which would give you more.’” The Town did not arbitrarily arrive at 10 units per acre. I suggested it to them based on all of the due diligence we had done, and through that process we determined the site could realistically be developed at that density. Mr. Francois’ clients seem to believe that since the property's previous land use designation was 1 unit per acre, then 10 units per acre can’t possibly be feasible. The previous density had nothing to do with what was feasible for the site, and everything to do with what Tiburon wanted on the site. It was zoning like this that led to our housing crisis and the enactment of new state laws. Tiburon should not be faulted for changing the density on properties in order to conform to State housing laws. The letter contends that if Tiburon previously stated the property had a likely maximum of four units, based on its previous land use designation, how could it now be 93? The answer is that the property was never physically constrained to having four to nine units, it was simply constrained by the zoning and land use designation. You’ve received multiple letters from both myself, and Harmonie Park Development confirming that this is a viable site at the proposed density, with verifiable owner interest in developing the property within the planning period. Biological Constraints The letter claims that there are, “three expert environmental analyses describing the substantial detrimental impact of development of the Site itself and the San Francisco Bay waters.” That is false. While there are three different reports, they are not what is described in letter. The first was a Biological Constraints Memo commissioned by me and done by MIG so that I could determine the viability of developing my site, and what constraints we may have. The second was also commissioned by me and done by MIG, and was a Delineation of Waters so that I could get a more detailed picture of the potential constraints of the drainageways. The third was an environmental assessment done by a neighbor who was getting a permit for their dock. It only looked at the impacts of their dock, and it did not consider any impacts of development on my site. While the letter contends that the Biological Constraints Analysis we had done somehow indicates the site is not suitable for development at the density proposed by the Town of Tiburon, it does not say that. Here is what it does say: -“The parcel is situated between Paradise Drive and San Francisco Bay and is surrounded by suburban development . . .” This is an infill site we’re talking about. -Of the nearly 10 acres on the site, the report identifies just 0.54 acres of ephemeral streams up to the top of the bank and 0.51 acres of Arroyo Willow Thickets Alliance, which are the only two land cover types, habitats, and natural communities identified that pose any meaningful development constraints. So 1.05 acres of a nearly 10 acre site had some constraints identified. If that portion of the property wasn’t touched, there are still nearly 9 acres available. -Impacts to the two ephemeral streams “may be subject to the jurisdiction by the USACE and RWQCB.” -“The two ephemeral drainages, including the seasonal wetlands do not meet the USFWS’s definition of a wetland due to lack of a high-water table or shallow water.” All setbacks have been evaluated, and we have determined that they will not pose an issue with developing the site to the density listed in Tiburon’s Housing Element. Site H does not contain any wetlands according to the definition of the United States Fish and Wildlife Service, which is the same definition used by the Town of Tiburon as well as referenced in numerous state laws. -Regarding the two ephemeral streams identified, the report states, “Due to the lack of persistent flows, the drainages have little value to aquatic life.” -“If development within the parcel includes design features that would encroach within the ephemeral streams, the Willow Thickets Alliance, and Bay waters the impacts would likely be considered significant under CEQA and require mitigation.” So if future development happens on the most sensitive 1.05 acres of the site, it may require mitigation under CEQA. That is a far cry from preventing more than four homes on the site. The modification of those drainageways would not necessarily be required in order to develop the site, and permits for modifying drainages are commonly issued with some type of mitigation. As we have not put together any development proposal, we have not discussed what permits may or may not be required with the relevant agencies. -4.46 acres of the site was identified as “rural residential” which essentially has no biological value. “. . . the rural residential areas of the parcel provide relatively low-quality habitat for wildlife species.” -Regarding Special-Status Plants, it says, “Because there is no potential for special-status plant species to occur within the parcel, there are no CEQA or regulatory considerations for development within the parcel.” -Regarding Special Status Animals, it says, “Project activities within or adjacent to Bay waters may indirectly impact special status fish . . .” If a proposed project on the site is within or adjacent to Bay waters, there could be CEQA impacts, and permits may be required from the USACE and the RWQCB. There were no other issues identified with Special-Status Animals. -The report does identify nesting birds and roosting bats as potential issues, but mitigation is very simple and straightforward, such as performing tree removal between September 15 and February 1. That’s it. Those were all the potential constraints identified in the Biological Constraints Analysis and Delineation of Waters. There are certainly some constraints, and areas which will have to be avoided or mitigated in any future development. Keep in mind that the only real constraints were on 1.05 acres of the site, so if that portion of the site was simply avoided, there would be no real impacts. These reports were reviewed with their author as well as civil engineers, architects, and developers, and it was determined that while there were site constraints, they would not prohibit the site being developed at the density of 10-12.4 units per acre included in Tiburon’s Housing Element. Geotechnical Report The letter also talks about various alleged issues with soil stability at the site. My geotechnical study determined that development could occur anywhere on the site using normal practices. Here’s what the geotechnical study says: -“From a technical standpoint, any required structure that common sense would perceive may be located anywhere within the site.” -“On the basis of field and office studies, from a geotechnical civil engineering standpoint, the site is suitable for residential development such as and/or similar to that being contemplated.” -“Technically, there are no associated siting constraints for any foreseen site improvements . . .” -Regarding driveways to the site which the letter claims could not be accomplished due to the steep slope, the geotechnical report notes that there are two existing driveways on the site (which are used daily by my family to access our property), and does not identify any issues with the current access or adding addition access points. The geotechnical study found no geotechnical related issues that make the site unsuitable or infeasible for development as claimed in the letter. Does Paradise Drive or Other Infrastructure Limit the Development Potential of Site H? Site H is located between Paradise Drive and Trinidad Drive. Paradise Drive is one of two ways in and out of Tiburon. Site H is not “at the end” of any road. It is 3 miles from Highway 101, 1.3 miles from State Route 131, and 3.8 miles from downtown Tiburon. There are approximately 250 homes in a subdivision built on filled tidelands that is adjacent to the property and where the majority of the members of the Committee live; their only access is from Paradise Drive. Paradise Drive, although it is a winding two-lane road, does not experience delays by Site H and has adequate capacity for additional traffic. It is correct that it is a popular bicycle route without bike lanes, like many roads in Marin County. However, aside from pointing out existing deficiencies and community concerns, the letter provides no evidence that development of Site H would create additional safety hazards or that those hazards could not be mitigated. The site already has two driveways from Paradise Drive. The storm drains referenced in the letter are upstream from Site H, and any future development on Site H at the density proposed by the Town would not impact these “very old” drain pipes, whether or not they may need to be replaced. While the letter states that the Sanitary District “likely does not have capacity”, this is not based on any evidence. The EIR prepared for the General Plan, including the Housing Element, did not identify any specific deficiencies associated with the development of Site H. Is the Site Otherwise Not Physically Suitable for Development? The letter claims that Site H, “is in a flood prone area” and, has, “an average slope of 58°,- steeper than most double-black diamond ski slopes”. These claims are simply not true. First, the site does not have an average slope of 58° which approximately equivalent to a 160% slope. It also does not even have an average slope of 58%, which is very different from 58°. The majority of the site slopes gently from Paradise Drive towards its eastern edge. Our surveyor calculated the average slope for the site as approximately 27%, or 15.1°. However, the average slope in the middle of the property from Paradise Drive down to the water is just 13%, or 7.4°. The property is also not flood prone as claimed. Only the small part of the property (the beach), fronting or located within San Francisco Bay and subject to tidal action, is shown within a FEMA flood zone. Does the Recently Filed Lawsuit Constrain Development? The Committee has filed suit against the Town of Tiburon for including Site H in the Town’s Housing Element. Committee members have also stated that they will file suit against any development on Site H approved by the Town. It is possible that litigation may delay development on Site H; but HCD can certainly not allow threats of litigation by wealthy neighbors to determine whether sites are feasible for development. Tiburon Did Utilize a Public Process in Adding Site H to the Housing Element? Tiburon did utilize a public process when choosing to include Site H. This process was covered extensively in the local paper (in 11 front page stories) where the property address and my name was mentioned. The site was not added “on the fly” as alleged. It was included in Staff Reports at seven publicly noticed meetings. Please see the attached documentation shown as Exhibit A. Does Tiburon Really Have Better Alternatives Than Site H? The Town of Tiburon included Site H because they were following State law and preparing a Housing Element with sites that are likely to be developed within the planning period. The members of the Town Council were proactively trying to meet the State’s requirements, despite objections from some members of the public. The letter proposes three alternatives to use instead of Site H: use of Site J, adding the units to those already planned in Downtown Tiburon, and replacing Site H with accessory dwelling units (ADUs). The suggestion that Site J be used demonstrates that the Committee’s concerns are not environmental but rather concerned only with the location of Site H near their homes. First of all, this site is not within the Town of Tiburon, so it cannot be used unless and until it is annexed. That site is shown on www.MarinMap.org (the County GIS maps) to have an average slope over 33%, steeper than Site H. Drainage from the site flows ultimately into San Francisco Bay and additionally drains into “very old” culverts that cross Paradise Drive, affecting downhill properties. That site also steeply fronts both Paradise Drive and Trestle Glen Blvd. and has no current access. There has been no review by the Town to determine the viability of that site. The Town could not, in good faith, include this site in their Housing Element. The Committee is also pushing the Town of Tiburon to remove Site H and replace it with ADU’s, as shown in Exhibits 8 and 9 to the letter, where the members have attempted to craft the Town’s ADU survey to emphasize: 1) that the purpose is to remove Site H from the Housing Element; and 2) that no commitment is required, only an expression of interest. HCD’s consistent position has been that the number of ADUs claimed in the Housing Element cannot be substantially greater than those issued in the past three years. As a substitute for Site H, ADUs will not provide homeownership opportunities and are unlikely to provide family housing; when rented, most are used for friends and family. The third option that the Committee members are proposing is to remove Site H, and increase the density of housing in downtown Tiburon, adding 93 – 118 units to the 434 – 516 units already planned in downtown Tiburon. Increasing density downtown would concentrate all the planned multi-family housing in downtown Tiburon, in violation of state laws requiring that municipalities proactively affirmatively further fair housing. What Is the Actual Motivation for Claiming the Site Isn’t Suitable? These are not “ground truthers” trying to expose the Town of Tiburon for using a bogus site to meet their RHNA. On the contrary, these are neighbors concerned about adding multi-family housing in their exclusive neighborhood of multi-million dollar single family homes. In doing so, they have hired an attorney to write you a lengthy letter trying to convince you that the property owner and developers who say the site can be developed are wrong. As the owner of the property, given the small buffer in Tiburon’s Housing Element, there are serious issues created by the “No Net Loss” law if I agree to a density above what can actually be built, so why would I do that? Here are some of the concerns neighbors in opposition to Site H voiced in public comments: “Site H is not an appropriate place for the type of people that we’re suggesting should join our community.” -Mark Holstrom in public comment at the Town Council May 22nd meeting “The city should NOT come into an area of single family homes and just go ahead and build a 93 unit complex. It’s not right. I know there is a state obligation to build more units but this is not the place!” -Robert Wolfson in written comments to the Planning Commission for their May 10th meeting “Now these homeowners are faced with the loss of their constitutional right to privacy by the prospect of several stories of high density housing peering into their windows and back yards.” -Marianne Fogerty in written comments to the Planning Commission for their May 10th meeting “We are deeply concerned and emotionally fearful that this project will destroy our neighborhoods, disintegrate their character and negatively impact the future value of our homes.” -Rick Coven in written comments to the Town Council for their May 22nd meeting “To add insult to injury, I think it goes without saying that this decision will also negatively impact property values in the neighborhood which is unreasonable and unfair.” -Anthony Vidergauz in written comments to the Planning Commission for their May 24th meeting I share these comments to give you an insight into how strongly these neighbors oppose this change in density, which is why they’ve hired an attorney to simultaneously claim the site isn’t feasible, and filed a lawsuit to try and prevent Site H from being included in the Town’s Housing Element at this density. Their claims that “there are numerous, substantial and documented impediments to the very high density development of Site H” is just not true. There are surely constraints, which is why the entire site is not listed with a minimum density of 20 units per acre that was initially discussed. The allegation that Tiburon is aware of issues that make Site H unsuitable for development and did not disclose them is a cleverly worded claim designed to paint the Town in a negative light. The truth of the matter is, Tiburon could not tell HCD about issues that made Site H unsuitable for development because they do not exist. The Town of Tiburon received, as part of the record, letters from myself and Harmonie Park Development stating that the site is viable for development at the density proposed. If the site is not viable as the letter contends, why do these neighbors feel it is necessary to sue Tiburon to have the site removed from the Housing Element? If you are to believe the claims made in the letter, then Site H’s “actual capacity is no more than four units.” If that were really true, this group of neighbors would not have sued Tiburon, nor would they have written this letter. Site H is An Excellent Site for the Planned Development I hope this letter answers any questions you may have about the suitability of Site H for housing at a density of 10-12.4 units per acre included in the Town of Tiburon’s Housing Element. While the site is designated for above moderate income housing, Tiburon’s inclusionary ordinance requires that at least 20 per cent of the housing be affordable, which will provide at least 18 lower or moderate-income households with the opportunity to be located in a beautiful, high resource area, with access to Tiburon’s excellent public schools. The site also provides a rare opportunity to provide family housing at a townhouse density and at a much lower cost than required to purchase the existing large single-family homes in the vicinity. Mr. Peter Prows, a partner in the Briscoe firm and one of the attorneys of record in the litigation against the Town regarding Site H, said on “The California Appellate Law Podcast” on September 18, 2022: “Single family homes often, you know, they require more development footprint, and when you’re building in more green space or open space, then you can have greater impacts to species, to wetlands than you would if the development was concentrated, especially with concentrated infill, you know, existing neighborhoods.” As we have demonstrated here, Site H has the capacity to cluster development at a moderate density in the most developable parts of the site, and with fewer impacts to species and wetlands than the construction of large estate homes as proposed by the letter on this infill site. If you have any questions, or require any additional information regarding Site H, please feel free to contact me at (415) 250-4434 or Eric94920@aol.com. Thank you, Eric Crandall Sierra Pines Group LLC Mr. Yung and Ms. Coy; I recently read the letter from Tony Francois dated July 26, 2023, which once again tries to argue that development on my site at 4576 Paradise Drive in Tiburon is not suitable for development of 10-12.4 units per acre. If the members of The Committee to Preserve the Paradise Cove Salt Marsh, Tidelands and Neighborhood Safety actually believed the site wasn’t feasible, they would not be paying their attorney to sue the Town of Tiburon, and to send you multiple letters in an effort to further these false claims. I am writing to you to reconfirm that as the property owner of Site H, there is no question that the site is suitable for development of 93-118 housing units. In order to determine this, we had a topographic map done, a boundary survey done, a geotechnical report done, a biological constraints analysis done, a delineation of waters report done, and an archaeological review done. We then reviewed the findings of all of these reports, discussed them with their authors, and consulted with developers and civil engineers with experience developing properties such as mine at similar densities. These experts determined that the site was suitable for the proposed density, and viable for development. You have received multiple letters from the developers we consulted with (Harmonie Park) confirming the site is viable, and that the claims made by Mr. Francois, and others, are without merit. Physical Constraints We have reviewed all the potential physical constraints in detail, and had specialists put together reports for us to review. There are no physical site constraints that would prevent the development of the site at the density included in Tiburon’s Housing Element. Site slope: A licensed surveyor estimated our average slope at approximately 27%, and the average slope in the central portion of the property at approximately 13%. The average slope is nowhere near the 58% claimed in the letter, and the slope of the property does not create an impediment to development at a minimum density of 10 units per acre. Access: The property is currently accessed by two separate driveways that provide vehicular access to the property in the center and on the north side of the property. The existing access would likely be sufficient for future development at 10-12.4 units per acre, but there is no reason additional driveways could not be added if necessary. Additional driveways could easily be located in the center of the property, on the south corner of the property, and on the eastern border of the property which fronts Trinidad Drive. Access to the property does not create an impediment to development at a minimum density of 10 units per acre. Streams: The two streams that run through the property do not provide any impediment to accessing the property as alleged. They also do not provide an impediment to developing the property. The streams occupy just 0.54 acres of the nearly 10-acre site, so the streams could be avoided entirely. The streams could also be culverted in all or in part. While this would require permits from CDFW and some type of mitigation, it is a feasible alternative. Density bonus law could be used to waive any setback requirements that made development infeasible. The presence of the two streams does not create an impediment to development at a minimum density of 10 units per acre. Water and Shoreline Areas: While it is likely that stormwater will have to be treated before it drains into San Francisco Bay to avoid impacting water quality, this does not create an impediment to development. Similarly, the Arroyo Willow Thickets Alliance that was identified in a 0.51 acre portion of the site does not create an impediment to development. Permits could be obtained for development where it’s located, or this small portion of the property could be avoided entirely. The proximity to water and shoreline areas does not create an impediment to development at a minimum density of 10 units per acre. R-3-10 Zoning: While the R-3-10 zoning does not allow “Open Space” as a permitted use, that is in reference to the property being dedicated for open space. Nothing about R-3-10 zoning prohibits open space on the property as part of any future development, and there is a maximum lot coverage allowed by R-3-10 zoning. Nothing in the zoning requires that the entire lot be clearcut and paved as the letter suggests. This does not create an impediment to development at a minimum density of 10 units per acre. Special Status Plant and Animal Species: The biological constraints analysis found no special status plants on the site. The only concern was the potential for birds and/or bats to live in the trees. Avoiding birds and bats can be done simply with surveys and with limiting the period of construction. There were no other special status animals identified on the site. There is also the potential for special status species to live in San Francisco Bay adjacent to the site, but the project would not be located in the Bay; as described above, stormwater would need to be treated. CDFW has not identified any special status species on the site, and neither did the MIG report. We discussed the findings of the biological constraints analysis done by MIG with the author, and determined that nothing in his findings would prevent the site from being developed at a minimum density of 10 units per acre. Wetlands: No wetlands are on the site as far as the USFWS and Town of Tiburon are concerned. Under CDFW’s definition, there are small portions of the streams that are considered seasonal wetlands. Any modification of the streams would require a permit from CDFW, so the fact that parts of the streams may be considered wetlands by CDFW does nothing to impede development. Wetlands do not create an impediment to development at a minimum density of 10 units per acre. Geotechnical Concerns: A detailed geotechnical study was done on the property, and the author of the study submitted his own letter to you confirming that there was no reason that the property could not be developed at a density of 10-12.4 units per acre. The geotechnical study determined that housing could be constructed anywhere on the property, and there were no geotechnical constraints as to where to build on the site. There were no impediments to development found by the geotechnical report. Bicycles: The fact that people ride bikes along Paradise Drive, which fronts the site, does not provide any constraint to development on the property. VMT Mitigation: The VMT mitigation measures required by Tiburon's EIR do not make the development of 93 units on my site infeasible as claimed in the letter. While we did request Tiburon change some language in their EIR regarding mitigation, the changes we requested were not substantive in nature, and would not have meaningfully changed what was written. The required mitigation if the VMT is above the threshold is putting together a Transportation Demand Management plan. The VMT mitigation measures do not create an impediment to development at a minimum density of 10 units per acre. Storm Drains: The “very old” storm drain pipes that are referred to are upstream from my site, so they would not be impacted by any development on my site, and therefore do not constrain development of my site in any way. Fire Hydrants: If 93-118 units were developed on my site, I expect that additional fire hydrants would need to be installed, and there is no reason why that would impede development of my site. Fire Risk: Site H is not in a Very High Fire Risk zone as alleged according to Cal Fire Maps. Nothing about the fire zone would be a constraint to development of my site. Paradise Drive Maintenance: While parts of Paradise Drive are maintained by Tiburon, and parts are maintained by the County of Marin, there is no dispute about who is responsible for maintenance, nor any issues with maintaining the road that would be an impediment to development. Sewer: A sewer line runs along the property’s western boundary, as well as along part of the property’s eastern boundary. We have not yet submitted a development plan, and so do not know what, if any upgrades may be required for the sewer service. To meet Tiburon’s inclusionary housing ordinance, 20% of any future development will likely be affordable, meaning that service providers are required to prioritize service. There is no reason to believe that sewer hookups will be an impediment to development of the site. Flood Prone Area: The only portion of the site that is in a FEMA flood zone, is a small portion (approximately 600 sf) adjacent to San Francisco Bay that is the beach for the property. This part of the site is unlikely to be developed. Flooding or flood zones do not create an impediment to development at a minimum density of 10 units per acre. Legal Constraints If neighbors opposed to a project could file a lawsuit and that lawsuit would be considered an “impediment to the development” of the site, then wealthy neighbors would successfully stifle all new development near them. This would be in conflict with laws requiring jurisdictions to affirmatively further fair housing. An attorney for the Committee was quoted in the local paper saying that they would file suit against me if we submitted an application to build on the site. It is possible that these angry neighbors may use the courts to temporarily delay development on the site. However, HCD cannot allow the threat of litigation by wealthy neighbors to determine whether sites are feasible. The Site is Feasible It’s clear that the members of the Committee will spare no expense and leave no stone unturned in trying to prevent Site H from being included in Tiburon’s Housing Element at a minimum density of 10 units per acre. Their claims that the site isn’t feasible are nothing more than another attempt to stop something that they know is absolutely feasible. Ironically, many of the members live in multi-million dollar homes in a neighborhood where the allowed density is 5.6 units per acre. We have done a significant amount of due diligence, commissioned reports and studies, and consulted with experts. The site is absolutely feasible for development at a density of 10-12.4 units per acre. If you have any questions, please feel free to contact me. Thank you, Eric Crandall Sierra Pines Group LLC Mr. Yung and Ms. Coy; I’ve had a chance to review yet another letter from Mr. Francois. He continues to claim that my nearly 10 acre infill site is not viable for development at a density of 10-12.4 units per acre. None of the claims in the letter from Mr. Francois dated July 28, 2023 are an impediment to developing my site at 4576 Paradise Drive in Tiburon at the density listed in Tiburon’s Housing Element. Fire Protection Tiburon recently certified an EIR that looked at the impacts created from their updated General Plan, including their Housing Element, that included an increase in density at my site. The Tiburon Fire Department expressed no concerns about providing fire protection services to my site at the increased density. Mr. Francois uses a 1998 document that is included in Marin County’s General Plan to justify his argument that water flow for fire prevention is an issue at the site. However, Mr. Francois again misrepresents a report. The 1998 “Paradise Drive Visioning Plan” that he references and attaches as Exhibit 1 says, “The water system can generally deliver 1,000 gpm fire flows along Paradise Drive from the Corte Madera Town Limits to Trestle Glen Boulevard . . .,” providing adequate fire flows. My site at 4576 Paradise Drive is located between the Corte Madera Town Limits and Trestle Glen Boulevard, where the “Paradise Drive Visioning Plan” determined there were adequate fire flows of at least 1000 gpm. In addition, my site is located on the downhill side of Paradise Drive, meaning that gravity would assist in increasing water flow and pressure. In response to paramedic Mr. Royal’s comment, I expect any future development will likely require additional fire hydrants. Fire protection and adequate fire flow are not issues that will present a constraint on developing my site at a density of 10-12.4 units per acre. Sewer Service The letter again misrepresents the “Paradise Drive Visioning Plan.”. The plan expresses concerns about the lack of sewers south of Trestle Glen Boulevard. The plan says nothing about areas north of Trestle Glen Boulevard, which are served by Sanitary District No. 2, and where my property is located. There is nothing in the record from Sanitary District No. 2 regarding concerns about including my site in the Housing Element, and Sanitary District No. 2 also expressed no concerns about providing sewer services to my site at the increased density in comments on Tiburon’s EIR. Sewer service is available to my site from Sanitary District No. 2, and the details of how that service will be provided will be determined when we submit a development proposal. This does not pose a constraint to developing my site at a density of 10-12.4 units per acre. Ephemeral Streams and Habitat The letter continues to misrepresent the biological reports that we commissioned to help determine the viability of the site. These reports found that just over an acre of our nearly ten acre site was affected by ephemeral streams and willow habitat. It also found that there were no federally regulated wetlands on the site as the letter alleges. We have addressed these issues in detail in previous correspondence. None of the biological or habitat issues identified in the letter (or in the biological constraints analysis), nor any related Town policies, presents a constraint to developing my site at a density of 10-12.4 units per acre. Paradise Drive There is no dispute over maintenance of Paradise Drive as the letter claims. We have addressed this issue in detail in previous correspondence. Nothing about the site's location and access to Paradise Drive presents a constraint to developing my site at a density of 10-12.4 units per acre. Please feel free to contact me if you have any additional questions or concerns. Thank you, Eric Crandall Sierra Pines Group, LLC EXHIBIT A The site at 4576 Paradise Drive in Tiburon was first discussed by the Town Council at their August 31,2022 meeting.That meeting was more than eight months before Tiburon adopted their Housing Element.The Draft Housing Element was an Agenda item,and my property address was listed in the Staff Report.At the meeting,there were multiple slides in Staff’s presentation on the possible inclusion of my site.While the Town Council did not choose to include Site H in their draft Housing Element at this meeting,it was discussed that it could be an option in the future if needed. Here is the front page article in The Ark newspaper from September 7,2022 that specifically mentioned the site,along with my name and address. You can see below that the article mentioned the property address,my name,where the site was located,and that Tiburon was considering increasing the density. Tiburon did not “hide”anything in Staff Reports as alleged.All meetings were properly noticed, and the Staff Reports included all the relevant information.The site was discussed at the meetings,and public comments were made.In addition,the local paper reported on all of these happenings. There were another two publicly noticed Town Council meetings in January of 2023 where my site was again discussed.On January 18,2023 the 2040 Draft Housing Element was an Agenda item.My site was discussed in the Staff Report,and included in a chart with different potential densities as shown below: As you can see,the Town Council was considering changing the density on a portion of the Site that was suitable for a higher minimum density. There were 5 written comments submitted in support of adding the Site to the Housing Element. Below is an excerpt from one of them: There was public comment taken,and multiple people commented on the inclusion of my site. On the front page of the Tiburon Ark on January 25th,2023 they mentioned my site in the sub-head,the lede,and also talked about my property in the story including my name and property address. The article says,“another early site is now back in the mix”when referring to my site.That is because it was publicly known that the site had been previously considered months before. There was another publicly noticed Town Council Meeting on January 25th,2023.The Draft Housing Element was an agenda item,and my site,and its proposed density was included in the Staff Report which is shown below: There was public comment taken at the meeting.In the February 1 edition of the Tiburon Ark, there was another front page story and my property was again listed by address along with my name.Below is the front page story including a map that shows Site H,as well as the paragraph that discusses my site. This front page article in The Ark on February 1,2023 included a map on the front page that showed my property was now included in Tiburon’s Draft Housing Element.The article once again contained my name and the property address.It also included the general location of the property,and the fact that the Town was designating the site for 93 units of multifamily housing. So by February 1,2023 there had been three publicly noticed Town Council meetings where my site was discussed in the Staff Report and at the meeting,along with three front page articles in the local paper that mentioned my site by address (and my name).There was even a map on the front page of one issue of The Ark showing all the sites included in Tiburon’s Housing Element,including Site H. The claim that there wasn’t proper notice to the community is simply not accurate.First of all, the Town properly noticed all meetings,which is why the letter does not claim that proper legal notice was not done.The letter does not define what they believe “fair notice to the community or time to meaningfully participate”actually is,but it seems three public meetings which were covered in front page stories in the local paper would give “fair notice”to the community and provided plenty of time to “meaningfully participate in the process”. However,the public process was far from over,and there was still plenty of time for the public to participate.In addition to the three front page articles provided and the April 26,2023 front page story where the letter claims their clients learned about the inclusion of Site H,there were additional front page articles in The Ark that discussed my site on the following dates: May 3,2023 The headline was,“Neighbors make 11th-hour push to drop Paradise Drive site for housing” May 10,2023 The headline was,“Neighbors are alarmed to find 82 unit Paradise Drive concept online” May 17,2023 The headline was,“Nix Paradise Drive sites and add 4th stories downtown,panel says” May 31,2023 The headline was,“Tiburon stands firm on downtown,Paradise Drive sites for housing” June 7,2023 The headline was,“Tiburon commission urges council to delay rezoning site for more housing” The sub head was,“Neighbors,panel want to remove options for property near Paradise Cay” June 14,2023 The headline was,“Tiburon to seek second units as way to drop Paradise Drive housing site” July 12,2023 The headline was,“Residents sue Tiburon over Paradise Drive housing site” There have been no fewer than eleven front page stories in The Ark regarding the inclusion of Site H in Tiburon’s Housing Element since Tiburon first considered the site in August of 2022. There were also seven publicly noticed meetings where public comment was taken,as well as a well-publicized Open House to discuss the General Plan and EIR prior to adoption. As was stated in the letter,“well over a hundred Community comments were submitted to the Town Counsel for its May 22,2023,meeting to adopt the General Plan,EIR,2d Draft Housing Element”.That sounds to me like plenty of people were aware,and had the opportunity to meaningfully participate in the process. It seems that the actual complaint is that the Town Council didn’t do what his clients wanted them to,and his clients have now chosen to utilize their significant financial resources and take whatever steps are necessary to try and keep multi-family homes from being built near them as evidenced by the 74 page letter from their attorney,the lawsuit filed against the Town of Tiburon, and the publicly made threat to sue me if I submit a project. It’s possible that some of Mr.Francois’clients may not have found out until the April 26,2023 edition of The Ark newspaper,but that wasn’t because Tiburon had not been taking public comment while considering adding the site to their Housing Element,or that it had not been previously covered by The Ark. Following that April 26,2023 article in The Ark that Mr.Francois references,there was a publicly noticed Planning Commission meeting on May 10,2023 that members of his Committee participated in. There was then a Town Council meeting on May 22,2023 that his Committee members again participated in. There was another Planning Commission meeting on May 24,2023 where his Committee members made comments. Most recently there was a Town Council meeting on June 7 where members of his Committee commented yet again. I would argue that there was in fact fair notice to the community,and that not only did they have time to meaningfully participate in the process,but they did meaningfully participate.My site was first discussed on August 31,2022,which was covered in a front page story in The Ark,and then was discussed again at another six public meetings and another 10 front page stories over the next nine months. The letters claim that,“The Saturday (April 29,2023)Open House was the first time that Tiburon disclosed to the community at large that the “new site near Paradise Cay”mentioned in The Ark was 4576 Paradise Drive”is clearly false.It had been included in three Staff Reports,had been discussed at three Town Council meetings,and had been included in three front page articles in The Ark prior to that article.All of which included the property address. He further claims that the only way residents could know about the inclusion of my site was to, “constantly scour the Town’s Tiburon.org website.”Clearly that’s not true.The letter conveniently has failed to mention these other front page stories,as they don’t support the story he’s trying to sell you. If the members of the Committee to Preserve did not become aware of this proposed density change until an April 26th article in The Ark,it was because they did not read the front page articles in The Ark on September 7,2022,January 25th,2023,and February 1,2023 or follow the public Housing Element process. Tiburon clearly allowed for meaningful public participation.As you know,if municipalities were not allowed to add sites to their Housing Elements if there was opposition from the neighbors, there would be a very limited number of sites available (if any).While the letter claims there wasn’t public participation regarding Site H,what they are actually complaining about is that the Town of Tiburon decided to include Site H even after hearing his clients objections during the public participation process. Harmonie Park Development | 221 Bachman Avenue | Los Gatos, CA 95030 Brandon Yung Melinda Coy State of CA Department of Housing and Community Development via email: brandon.yung@hcd.ca.gov; Melinda.Coy@hcd.ca.gov July 14, 2023 RE: Response to Letter dated July 10, 2023 from The Committee to Preserve the Paradise Cove Salt Marsh (the “Committee”) regarding inclusion of 4576 Paradise Drive (the “Property”) in Town of Tiburon’s Housing Element – Builder Response Dear Mr. Yung and Ms. Coy, This correspondence serves to supplement our attached May 8, 2023 and May 22, 2023 letters provided to Tiburon Planning Commission, Tiburon Town Council, and the State of CA Department of Housing and Community Development regarding the property at 4576 Paradise Drive, Tiburon. Harmonie Park is a leading real estate development company in Silicon Valley, with over 7 million square feet currently under development management. We have expertise in every aspect of the development process, from acquisition and partnership structuring to entitlements to design to construction coordination. The Partners of Harmonie Park have over 50 years of combined development experience in premium infill locations, including challenging sites in Novato, Los Gatos, Moraga, Danville, and Monte Sereno. Harmonie Park Development was engaged in late 2022 to provide our professional opinion to the property owner on the feasibility of multifamily, townhome construction at the Property. The Property is an infill site conveniently located less than 15 miles from downtown San Francisco, with established single-family residential homes located to the immediate north, south, east and west. Due diligence studies were completed, including biological and geotechnical reports, to ensure that development on the site at a higher density than was previously contemplated was feasible. These reports – despite their characterization by opponents to development of the site -- demonstrated that there were significant developable areas on the site where 93 units of multifamily housing could be constructed. Further, the reports provided appropriate mitigations for any identified impacts of development. The comments in The Committee to Preserve the Paradise Cove Salt Marsh (Committee) letter are factually inaccurate. Although limited portions of the site are steep, there are significant flat or gently rolling areas. The characterization of the site as having an average slope of 58 degrees is false. In fact, the site has a range of slopes, with the average slope at 27 percent (15.1 degrees), and the average slope from the middle of the property to the bay frontage is approximately 13 percent (7.4 degrees). Development potential is not eliminated by slopes of this nature, as is evident by many other developments with similar geotechnical characteristics. As can be seen in the aerial photo of the site, the site has limited Bay frontage. In total, there are approximately 0.54 acres of ephemeral streams identified (to top of bank) and 0.51 acres of Arroyo Willow Thickets present on the Property. Regulations, including those of the Regional Water Quality Control Board, would not only closely control any development in estuaries, waterways, or other water features, it would also require that stormwater be retained and treated on-site, protecting the area from pollution. Our proposed approach would be to cluster multifamily townhomes on the flatter, more easily developable parts of the property. Although 2 this has been referenced by others as being very-high density development, an overall density of only 10 units per acre only modestly exceeds single-family densities. The letter to HCD dated July 10, 2023 from attorneys retained by The Committee, and similar testimony at the May public hearings before the Planning Commission and City Council, outlines issues that we have experienced working through as residential developers in high-barrier-to-entry markets like Tiburon. These are not unique to the Property and have not stopped recent development on similar properties within the Bay Area. These issues include traffic and bicycle safety, geotechnical and biological constraints, aging infrastructure, and unfortunately, anti-development lawsuits such as the recent one filed by the Committee. After almost 50 years of combined development experience, the Principals of Harmonie Park have become accustomed to public sentiments such as those expressed by the Committee, as they are consistently used to thwart infill development in premier locations. Harmonie Park was approached with the question of development viability for 4576 Paradise Drive due to our experience in developing challenging properties in challenging communities, including those noted above, throughout the Bay Area. As stated in our previous letters to HCD, we find the referenced concerns such as those identified in the July 10th, 2023 letter are NOT objective evidence that the development of the Property is not feasible. These concerns would typically be addressed in coordination with the related agencies as a part of any application for any additional development at 4576 Paradise Drive. The mere presence of the features noted in the letter (and previous communication) does not mean that the site is not a feasible housing element site for multi-family residential. Nor does it preclude the implementation of appropriate mitigation measures once objective environmental review is completed. These concerns should not eliminate the opportunity for a new residential neighborhood to be established in Tiburon. There is no objective evidence that 4576 Paradise Drive is not a viable multifamily site. Harmonie Park typically partners with homebuilders to build townhomes, and interest in the property from our homebuilder counterparts has been very strong. From our perspective, the more likely concern is that this IS a viable site, and therefore that 93 homes would be developed adjacent to established single family residential homes on an A+ property. Utilizing the types of concerns as have been presented by The Committee is a typical “Not in My Backyard” strategy – consistent with anti-development messaging we have heard during our combined 50+ years of residential development experience – and precisely why we have an acute housing deficiency in Tiburon, the Bay Area, and California as a whole. We appreciate Housing and Community Development’s time and consideration and welcome any questions. Sincerely, Wendi Baker Principal Harmonie Park Development cc: Eric Crandall Harmonie Park Development | 221 Bachman Avenue | Los Gato s , CA 95030 2083\02\3518785.1 Town of Tiburon Planning Commission c/o Dina Tasina, Director of Community Development via email: pccomments@townoftiburon.org and dtasini@townoftiburon.org Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 May 9, 2023 RE: Item PH-1 Planning Commission Public Hearing, May 10, 2023 Dear Chair Williams and Planning Commission: In the Fall of 2022, we were introduced to the owner of 4576 Paradise Drive, Eric Crandall, by a mutual friend. The Town of Tiburon had approached Mr. Crandall about including the property in the Town’s draft Housing Element at a minimum density of up to 20 houses per acre. It is currently in the draft Housing Element as Site H. Collectively, the principals at Harmonie Park Development have over 50 years of real estate development experience which includes representation of and partnership with some of the area’s largest home builders and over a decade of work with one of the State’s largest affordable housing developers. Today, Harmonie Park is directly involved in the entitlement or construction of over 2,600 homes in the Bay Area. Based on this experience, the mutual friend thought we would be qualified to provide professional opinion of the viability of constructing a project of the scale that is envisioned by the Town at 4576 Paradise Drive. It is our professional opinion that a project of 95 units, at a minimum density of 10 units per acre, is, in fact, viable and that this site presents a unique opportunity for the Town of Tiburon to significantly add to its historically suppressed housing stock. Unfortunately, there was a bug found in a recent update of a plugin that one of our consultants uses to protect our internal website files and it enabled a neighbor access to private, internal documents including a conceptual plan that appears in NextDoor and is referenced by a letter composed by Mr. Jeff Chanin. These were private documents that were not submitted to any public agency, including to the Town, and the concept plan had not been shared with Mr. Crandall. The concept plan was an early analysis using the base information (general boundary survey and topographical map) provided by the property owner and high-level assumptions with architects and civil engineers. It is a common analysis used to determine if a specific building type which is tied to standard density per acre could even be considered. In this case, we were testing townhomes (vs. single family detached homes or condominiums) which in our experience can result in a density of 20 units per acre. To be clear, Harmonie Park has not been asked to develop the site nor do we have plans to do so but any development proposal – townhomes or otherwise-- would be required to further study the site to develop an actual proposed site plan. In our professional opinion and based on our preliminary conversations with our design team, it is possible to accommodate both the housing inventory needs identified by the Town as well as the natural features of the site. For-sale affordable housing does not need to be near services or public transit to be successful. For affordable builders seeking to leverage low-income housing tax credits or other sources of public funding, a building site closer to services does result in a project being more competitive for such funding. However, for-sale, inclusionary affordable housing construction is a cost borne by the market rate PUBLIC COMMENT ITEM PH1 – MAY 10, 2023 PLANNING COMMISSION 2 2083\02\3518785.1 developer and, ultimately, the underlying landowner. In this instance, density does not automatically translate to a property having a higher property value, as construction costs, fees, and affordable housing requirements for higher density often decrease value. Given this, it makes sense that Mr. Crandall would complete some analysis if the Town had approached him to consider additional density on their property. This is why Harmonie Park explored 4576 Paradise Drive, and we believe the site should continue to be included in the Town’s Housing Element Site Inventory. We are hopeful that the Planning Commission sees the opportunity in keeping 4576 Paradise Drive in the Housing Element, certifies the Environmental Impact Report, and approves the Town of Tiburon General Plan 2040 including the Housing Element. Sincerely, Wendi Baker Principal cc: Eric Crandall Brandon Yung and Melinda Coy, State of CA Department of Housing and Community Development Brandon Yung Melinda Coy State of CA Department of Housing and Community Development via email: brandon.yung@hcd.ca.gov; Melinda.Coy@hcd.ca.gov May 22, 2023 RE: Inclusion of 4576 Paradise Drive in Town of Tiburon’s Housing Element - Item PH-1 City Council Meeting Public Hearing, May 22, 2022 Dear Mr. Yung and Ms. Coy, This correspondence serves to supplement our attached May 9, 2023 letter provided to Tiburon Planning Commission and the State of CA Department of Housing and Community Development regarding the property at 4576 Paradise Drive, Tiburon. We have also included Town Staff and Council Members in the distribution. On May 10, 2022, after significant pressure from the local neighborhood, the Tiburon Planning Commission convened and recommended removing the property located at 4576 Paradise Drive from the Draft Housing Element. In addition to written comments, nearly two dozen neighbors of the site provided verbal comments opposing the property’s inclusion in the Draft Housing Element. Harmonie Park provided our opinion to the property owner on the feasibility of multifamily, townhome construction at this property. Including the 93 allocations identified in the housing element will provide the rare opportunity to enable affordable housing and market rate townhomes to be constructed in an A+ location. Concerns on record over viability to deliver affordable housing at this location include access to transit, access to high performing schools and jobs, access to amenities, access to health care facilities and grocery stores, proximity to available infrastructure and utilities, and the site not scoring high for housing tax credits. These concerns, however, lack practical experience on the delivery of townhomes, and specifically, affordable, for-sale, inclusionary housing. Throughout their combined 50+ years of homebuilding, Harmonie Park’s principals have developed thousands of homes – from estate homes to multi-family apartments – in premium locations throughout the Bay Area, including hundreds of inclusionary, for-sale affordable homes. Inclusionary, for-sale affordable housing, which is the most likely type of affordable housing that will be created at 4576 Paradise Drive, will not seek tax credits. These homes would be very attractive to market rate and lower-income families, who would be thrilled for the opportunity to own a home in a wonderful school district. Future residents at 4576 Paradise Drive would enjoy sensational views and a gorgeous neighborhood. As smaller townhomes, the market rate homes would be priced well below the single-family homes that surround the property. The continued reference of preliminary biological reports in letters to Tiburon Council by Mr. Chanin (that he did not pay for, commission, or request permission of use by the property owner) do not preclude development at 4576 Paradise Drive. These types of professional reports are required for any project with features that may include consideration for potential mitigation. The conclusions in Mr. Harmonie Park Development | 221 Bachman Avenue | Los Gatos, CA 95030 2083\02\3518785.1 PUBLIC COMMENT ITEM XXX – MAY 22, 2023 TIBURON CITY COUNCIL 2 2083\02\3518785.1 Chanin’s letter that the presence of these features entirely eliminates the property as being a feasible housing element site for multi-family residential are his opinion, and not based on development expertise. Concerns about utilities, including sewer service, will be addressed in coordination with the related agencies as a part of any application for any additional development at 4576 Paradise Drive. It is typical to consider upgrades for the many utilities that service new projects. Options such as onsite lift stations, pipe resizing, and rerouting are commonly explored, thereby addressing potential constraints. Stated simply: There is no objective evidence that 4576 Paradise Drive is not a viable multifamily site. On May 22nd, 2023, the Tiburon City Council will consider the adoption of the Housing Element. There remains significant neighborhood pressure to remove 4576 Paradise Drive from the Housing Element, including the recommendation by the Tiburon Planning Commission. Harmonie Park would like to state that, in our professional opinion, the development of 4576 Paradise Drive is viable. If removal occurs, it will not be due to the viability of the site for the identified housing allocation. Rather, it is due to a preference for no more than seven high-end, single-family detached homes. Sincerely, Wendi Baker Principal cc: Eric Crandall Dina Tasina, Director of Community Development Ben Stock, Town of Tiburon City Attorney Mary Wagner, Town of Tiburon Assistant City Attorney Mayor Ryan Vice Mayor Fredericks Council Member Thier Council Member Welner Harmonie Park Development | 221 Bachman Avenue | Los Gato s , CA 95030 2083\02\3518785.1 Town of Tiburon Planning Commission c/o Dina Tasina, Director of Community Development via email: pccomments@townoftiburon.org and dtasini@townoftiburon.org Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 May 9, 2023 RE: Item PH-1 Planning Commission Public Hearing, May 10, 2023 Dear Chair Williams and Planning Commission: In the Fall of 2022, we were introduced to the owner of 4576 Paradise Drive, Eric Crandall, by a mutual friend. The Town of Tiburon had approached Mr. Crandall about including the property in the Town’s draft Housing Element at a minimum density of up to 20 houses per acre. It is currently in the draft Housing Element as Site H. Collectively, the principals at Harmonie Park Development have over 50 years of real estate development experience which includes representation of and partnership with some of the area’s largest home builders and over a decade of work with one of the State’s largest affordable housing developers. Today, Harmonie Park is directly involved in the entitlement or construction of over 2,600 homes in the Bay Area. Based on this experience, the mutual friend thought we would be qualified to provide professional opinion of the viability of constructing a project of the scale that is envisioned by the Town at 4576 Paradise Drive. It is our professional opinion that a project of 95 units, at a minimum density of 10 units per acre, is, in fact, viable and that this site presents a unique opportunity for the Town of Tiburon to significantly add to its historically suppressed housing stock. Unfortunately, there was a bug found in a recent update of a plugin that one of our consultants uses to protect our internal website files and it enabled a neighbor access to private, internal documents including a conceptual plan that appears in NextDoor and is referenced by a letter composed by Mr. Jeff Chanin. These were private documents that were not submitted to any public agency, including to the Town, and the concept plan had not been shared with Mr. Crandall. The concept plan was an early analysis using the base information (general boundary survey and topographical map) provided by the property owner and high-level assumptions with architects and civil engineers. It is a common analysis used to determine if a specific building type which is tied to standard density per acre could even be considered. In this case, we were testing townhomes (vs. single family detached homes or condominiums) which in our experience can result in a density of 20 units per acre. To be clear, Harmonie Park has not been asked to develop the site nor do we have plans to do so but any development proposal – townhomes or otherwise-- would be required to further study the site to develop an actual proposed site plan. In our professional opinion and based on our preliminary conversations with our design team, it is possible to accommodate both the housing inventory needs identified by the Town as well as the natural features of the site. For-sale affordable housing does not need to be near services or public transit to be successful. For affordable builders seeking to leverage low-income housing tax credits or other sources of public funding, a building site closer to services does result in a project being more competitive for such funding. However, for-sale, inclusionary affordable housing construction is a cost borne by the market rate PUBLIC COMMENT ITEM PH1 – MAY 10, 2023 PLANNING COMMISSION 2 2083\02\3518785.1 developer and, ultimately, the underlying landowner. In this instance, density does not automatically translate to a property having a higher property value, as construction costs, fees, and affordable housing requirements for higher density often decrease value. Given this, it makes sense that Mr. Crandall would complete some analysis if the Town had approached him to consider additional density on their property. This is why Harmonie Park explored 4576 Paradise Drive, and we believe the site should continue to be included in the Town’s Housing Element Site Inventory. We are hopeful that the Planning Commission sees the opportunity in keeping 4576 Paradise Drive in the Housing Element, certifies the Environmental Impact Report, and approves the Town of Tiburon General Plan 2040 including the Housing Element. 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Select Language LinkedIn Corporation © 2023 Show more Follow Privacy & Terms English (English) 2083\03\3586740.1 8/16/2023 August 22, 2023 Council Members and Planning Commissioners; I am the owner of the property at 4576 Paradise Drive, which is also referred to as Site H in Tiburon’s recently adopted Housing Element. I recently reviewed the information presented in the submission from Matthew Le Merle dated August 13th, 2023 and a separate submission dated August 17th, 2023. They seek to utilize data from large areas and apply it specifically to Site H. This has led to numerous claims that are contradicted by expert reports done on Site H. Only site-specific studies can actually identify the existing conditions on a site. The US Geological Survey and California Geological Survey maps provided as part of the submissions are helpful guides to the soil conditions in the general area, but you would never be allowed to build based on the level of detail on these maps. A review of Exhibits I, J, and K from the August 13th submission shows that the conditions the maps shown near Site H are the same as those found in many other parts of Tiburon that are developed with housing at a variety of densities. The USGS map has a disclaimer that says, “The method of compilation and resolution of 1:125,000 (1 inch = 2 miles) limits use of the map to regional considerations. It provides a basis for initial evaluation . . .” The CGS map has a disclaimer that says, “The Department of Conservation makes no warranties as to the suitability of this product for any particular purpose.” Under both the Tiburon 2040 General Plan and the County of Marin General Plan, any development in the area would be required to produce a site-specific geotechnical analysis that could be relied upon for development on that site. Such a report has been done on Site H, and determined that development could occur on any portion of the site. A letter to that effect from a licensed geotechnical engineer has been provided to the Town. Regarding ephemeral streams and other waters, the BLM maps and the maps found at www.MarinMap.org cannot be relied upon for accurate locations of ephemeral streams, marshes, wetlands, etc. They also provide disclaimers regarding the information they provide. Only a site-specific study would include the level of detail sufficient to be used for any future development. We had a “Delineation of Wetlands and Other Waters” report done by a large environmental consulting firm which identified the locations of the jurisdictional waters on the site and was submitted to the Town. This report determined that there were ephemeral streams that occupied just 0.54 acres of the nearly 10 acre site. The locations of water features shown in the August 13th and August 17th submissions are not consistent with what was found in the site- specific study. The submissions claim that no development is allowed in areas near ephemeral streams or old landslides. It is claimed that Federal, State, County, and Tiburon policies would prohibit development of Site H. That is not true. While there are polices in place (like those that require a geotechnical report to be done), there is nothing that restricts developing outright as alleged. 2083\03\3586740.1 8/16/2023 There is no reason that development at Site H would not be allowed under the policies in place in Tiburon’s 2040 General Plan. Additionally, the documents claim that the drainageways that cross my property cause flooding on both Paradise Drive and on my site. I have owned the property since 2019, and what is described in the submissions is not consistent with what I have witnessed since I purchased the property (or have observed being a resident of Paradise Drive since 1980). The author states that he has an active “landslide gully” on his property, which is upslope of Site H, and so Site H can not be developed. What he does not explain is why he is not concerned about the homes at 4535 Paradise Drive, 4515 Paradise Drive, and 4575 Paradise Drive, and Paradise Drive itself. If there is in fact an active landslide where he describes it, all of these homes and Paradise Drive would be in its path before it reached Site H. Homes at 4633 Paradise, 4545 Paradise, 4625 Paradise, 4525 Paradise, and 4505 Paradise are along side what the “landslide gulley”, and according to the submission would also be in peril. I’ve spoken to one of these homeowners, and he has not been notified that there is an active landslide pointed towards his home that may place him and his family in danger as seems to be claimed. The submission further claims, “A second landslide gulley above Site H exists to the North of Madsen Lane” and that there was a “catastrophic landslide” there recently. A quick glance at the map provided in the submission shows that the location he’s shown and described is North of Site H, and any current or future issues in this area would have no impact on Site H. There are, however, numerous homes that do sit above, next to, and below the area described. It’s unclear if the author has made an effort to contact these homeowners with his concerns. Neither science nor common sense support the claim that our cows may somehow increase the risk of landslide by reducing the vegetation on Site H. The weeds, scotch broom, and poison oak that the cows are eating are not doing anything to hold the ground together and prevent landslides or earthquake triggered slips. While trees and other vegetation can help reduce erosion, they do not prevent landslides. I am not qualified to offer an opinion on if Site H is geotechnically safe to develop, or if any of the homes above my site were safe to build. I had a geotechnical study done by a licensed geotechnical engineer to make that determination (he determined there were no limitations as to where we could build on the site using standard engineering and construction practices). I know that nearly all the homes above me had the same, as these reports were reviewed by my geotechnical engineer as part of his research for his report. I assume they also determined that it was safe to construct homes on those sites. There is no evidence to support the claim that Site H, “is home to wildlife species, including endangered.” To the contrary, there was a Biological Constraints Analysis done that found no evidence of any endangered species on the site. 2083\03\3586740.1 8/16/2023 The August 13th submission has numerous unattributed quotes in support of the author’s position. It appears that all seven of those quotes are the author quoting things he wrote in the same submission. I found the practice of not attributing quotes to a source confusing, and the fact that he was quoting himself, a bit misleading. Much of the information provided in the August 13th submission comes from a draft EIR done by the Marin County Open Space District in September of 2013. The EIR was done on their proposed Road and Trail Management Plan, which looked at improvements they wanted to make on their lands throughout the County, and had nothing to do with Site H, nor does it examine any part of Site H. The draft EIR discusses recent slides in some locations, but none related to Ring Mountain or Tiburon. One of the main items noted by the author, which is from the draft EIR, is the likelihood of landslides on slopes steeper than 27.5 degrees (52% slope). While it has been erroneously stated that the average slope of Site H is 58 degrees (160%), that is false. A licensed surveyor determined the average slope of Site H to be 27%, which is 16 degrees. A copy of that letter is attached. The Town of Tiburon already has a policy that addresses development on slopes steeper than 40%, which is well under the threshold of 52% slopes that is cited. While the August 13th and August 17th submissions make claims based on some very general maps, these claims are contradicted by the site-specific reports which have been done. The bottom line is that the Town of Tiburon requires site-specific studies to be done prior to development. Had those studies not already been completed, it would be possible for someone to speculate what they might conclude. There is no need to speculate, as those expert studies have been done, and they did not identify any constraints that would prevent Site H from being developed at the density of 10-12.4 units per acre. As impressive as Mr. LeMerle’s resume appears, and while he presents his submission as a report from a qualified professional, his submission is simply an opinion from a local resident. While he does have a Masters in Geography from Oxford, he is no more qualified than you or I are to offer an opinion on building on Site H, or any other property. A professional opinion on any landslide issues, or other soil related conditions, would be obtained from a licensed geotechnical engineer or a state certified engineering geologist. His expertise in geography also does not qualify him to offer a professional opinion on ephemeral streams or any other water features, and if they are present on a site. The conclusion that on Site H “Anything other than low density housing should not be approved” is telling. If site conditions existed that would prevent the development Site H, the site would not be suitable for housing at any density. Conversely, if a site is determined to be technically suitable for low density housing, it would also be suitable for higher density housing. Eric Crandall Chair Williams and Commissioners; I am the owner of the property at 4576 Paradise Drive,also referred to as Site H.There were a significant number of submissions to your Commission that purport to have information relevant to my property.I am writing to you today because much of the information that was submitted is inaccurate,misleading,or just incorrect.I previously prepared a response to the first documents that were submitted.Subsequently,additional documents were submitted,which this letter attempts to address. The letters,reports,and other submissions were made by Matthew Le Merle.While Mr.Le Merle may be a successful investor,author,and have a masters in geography,that does not qualify him to issue a report with opinions on the soil conditions of my site.Nor is he qualified to offer a professional opinion on the status or location of streams and other waters on my site. Reports from qualified professionals who visited my site have been done,and reached dramatically different conclusions than Mr.Le Merle reached after looking on the internet for his data. The maps utilized in the submissions are helpful for understanding what is happening in the general area,but can not be relied upon for conditions on any one site.Site specific studies are required,and these studies on Site H have been completed. Contrary to what is stated in the submissions,Federal,State,County,and Tiburon policies do not prohibit development on my property.There are at least three homes and Paradise drive between the alleged “landslide gully”at 4545 Paradise and my property,so it is unlikely that any stability issues Mr.Le Merle has on his site would impact mine.The alleged “landslide gully”at 4639 Paradise is too far to the north to have any impact on my property. Site H does not flood every year and become a standing marsh in most years as alleged.I have owned it since 2019,and we have had record rains in multiple years since I purchased the property.I have not experienced what he has described. The soil conditions are also not what have been described.We had a geotechnical report done and it determined that all portions of the site could be built on utilizing standard engineering and construction methods. There is no evidence showing there are endangered species on the property as claimed,and there is a report that found there were none present. Here are some specific responses to claims made in various submissions. Late mail 2:Nothing in the Tiburon 2040 General Plan would prevent site H from being developed.The different hazards maps show site H to have similar characteristics to many other areas of Tiburon that have been developed at a variety of densities. Late mail 6:This map has a disclaimer on it that says,“The Department of Conservation makes no warranties as to the suitability of this product for any particular purpose.”This is not a map that shows site specific conditions,or can be used to allow or prevent development. Late mail 7:Nothing in the Department of Conservation statutes prevents my site from being developed Late mail 8:It is claimed that,“there is a great deal of Site H relevant USGS work here ...” There is nothing specific to Site H anywhere in the report.It alleges that on page 21 “the USGS states that the Tiburon Peninsula has perhaps the highest concentration of landslides in the Bay Area.”Please make sure you look at page 21,and you will see the USGS says nothing of the sort.It does show a map that shows normalized storm rainfall and locations of landslides.If you look at page 3 you will see another map that just shows debris flows.This paints a clearer picture,as rainfall isn’t shown.While this information is helpful to understand landslide potential in the Bay Area,none of this is more specific to site H than it is to any other property in Tiburon. Late mail 10:The Earthquake Triggered Landslides document provided is not any more relevant to my site than it is to the rest of the Bay Area.It identifies “steep slopes that are greater than 25°”.25°is 46%.My site has an average slope of 27%which is 15°.The area property near the drainageways that seems to be of specific concern has an average slope of just 13%which is less than 8°.It also states that the majority of landslides triggered by earthquakes were “on the tops of ridges.”My site is not located anywhere near a ridge. Late Mail 11:I found no evidence to support the claim that the hydrological surveys were done “on the ground”as claimed.The map is unquestionably inaccurate as it shows a drainage through the middle of my site that is actually routed through a drain pipe under Paradise Drive to the southern drainage way.This would be apparent to anyone who looked at the drainages from the street. The BLM Map terms of use state: “These data are provided by BLM ‘as is’and may contain errors or omissions.the user assumes the entire risk associated with use of these data and bears all responsibility in determining whether these data are fit for the User’s intended use.” “The data are not better than the original sources from which they were derived,and both scale and accuracy may vary across the data set.These data may not have the accuracy,resolution, completeness,timeliness,or other characteristics appropriate for applications that potential users of the data may contemplate.” “These data are neither legal documents nor land surveys,and must not be used as such.” A biologist from CDFW inspected the site,identified two drainage ways and found no violations on my site.A Delineation of Waters report by a different biologist also identified two drainage ways on my site.These reports were written specifically about my site,by qualified professionals.These reports do not contain any of the disclaimers that are associated with the BLM maps,because they were done specifically on my site.Both of these reports have previously been submitted to the Town of Tiburon. Late mail 12:Despite claims to the contrary,it is not a fact that 5 ephemeral streams are on my property.CDFW identified two drainageways in their site visit,and the Delineation of Waters report also identified two. It is alleged that Tiburon has,“allowed the current owner of site H to tamper with,and break existing US laws with regard to ephemeral streams ...”That is false.CDFW (who regulates streams in California)came out unannounced to do an investigation after allegations from neighbors about that I had modified the drainageways on my property.They identified no violations. The claim that I misled the town in my application to keep cows is contradicted by the documents provided.Prior to getting cows,we read that cows eat all the same sorts of things goats eat.We can confirm that our cows eat the broom here as well as poison oak. The document provided on Scotch broom says that the species affected are “equines, chickens”.It says nothing about bovine,cows,or cattle.Apparently the author saw “effects on livestock”and assumed it affected all livestock equally instead of reading which species it actually affected.This is just another of many factual errors in what has been submitted. The allegation that,“The reason why the owner has added cattle is to eat protected botany including perhaps Tiburon Mariposa Lilies,and to scare away protected and endangered species perhaps including red legged frogs and Great Egrets in the ephemeral marsh”is totally unsupported by fact,and is absolutely false.Our biological assessment determined that our site does not support any special status plants,that our ephemeral streams offer little value to aquatic life,and that the site is not home to any special status species. It’s unfortunate that Mr.Le Merle and his family were not able to keep their goats.I don’t know the circumstances of that,but it is totally unrelated to our keeping of cows. Late mail 13:Nothing in the National Landslide Prevention Act,State law or USGS recommendations prevent my property from being developed as alleged.A geotechnical report would be required,but that has already been done,and it determined that there were no geotechnical limitations to where on my site improvements could be constructed. Late mail 14:Mr.Le Merle is not qualified to offer an expert assessment of ephemeral streams or soil conditions.The handout says he has a masters in “Geo”but it is geography not geology. The BLM map he shows is incorrect.The landslide maps he shows are also not correct for my site. Late mail 19:This submission states,“the marsh has standing water right now in August 2023.” You have all visited my site,and I’m sure you’re wondering where the marsh is.There is no “marsh”on my property,and nowhere on my property where there is currently standing water that is not at the shoreline and San Francisco Bay.There are multiple reports from qualified professionals,including a biologist with the California Department of Fish and Wildlife that document the actual conditions on my site.Both of these reports were previously submitted to Tiburon. Thank you for your service to our Town. Eric Crandall 57 In the Name of the Environment Part III: CEQA, Housing, and the Rule of Law Jennifer Hernandez This is the third study of all state court lawsuits filed under the California Environmental Quality Act (“CEQA”); this Study examined lawsuits filed statewide over three years, between 2019 and 2021. All three studies identified housing as the top target of CEQA lawsuits challenging agency approvals of private projects. California’s housing crisis has caused the state to have the worst housing-adjusted poverty rate in the United States; California also continues to have the highest rate, and highest number, of unsheltered homeless residents. Housing production has remained essentially flat (at about 110,000 housing units per year) notwithstanding the enactment of more than one hundred new housing laws since 2017; the state still needs about three million more homes. Although CEQA’s status quo defenders assert that CEQA is not a material factor in housing production, this Study confirms that, in 2020 alone, CEQA lawsuits sought to block approximately 48,000 approved housing units statewide—just under half of the state’s total housing production. Many housing laws also mandated that local and regional agencies adopt and implement plans to accommodate more housing. CEQA lawsuits filed during the study period challenged agency housing plans that allowed more than one million new housing units. Non-housing projects to accommodate housing and population growth, such as transportation and water infrastructure, are also a major target of CEQA lawsuits. CEQA lawsuits (and lawsuit claims) relating to Jennifer Hernandez practices environmental and land use law in the California offices of Holland & Knight. Many other members of Holland & Knight’s West Coast Land Use and Environment and Real Estate Practice Groups contributed to the study of CEQA lawsuits evaluated in this report, including Nicholas Quinlivan, Scott Levin Gesundheit, Nathaniel R. Bernstein, Deborah Brundy, Melanie Chaewsky, Emily Warfield, John H. Irons, Stevens A. Carey, Ariel B. Robinson, Brad Brownlow, Daniel Golub, David Friedman, Norman Carlin, Brian Bunger, and Emily Lieban. While the author is grateful to these contributors and to other parties who are focused on the need to modernize CEQA, the opinions and recommendations in this Article are the author’s and should not be attributed to any other person or organization, to Holland & Knight, or any client of the firm. This Article cites to media reports and other specified sources for factual information about examples of CEQA lawsuits and the litigation practices of individuals and groups–they were not independently investigated by the authors. 58 Chapman Law Review [Vol. 26:1 climate change, including greenhouse gas emissions (“GHG”) and vehicle miles travelled, a top topic of CEQA lawsuits, even though California already has the lowest per capita GHG in the nation and has enacted scores of GHG and climate change laws and regulations. The study includes data, and examples, of all CEQA lawsuits filed during the study period, to explain how CEQA works today—not historically, and not rhetorically. The study also examines how the unpredictability of CEQA lawsuit outcomes has created a de facto, low-cost, no-risk strategy for project opponents to preserve the environmental status quo and block even benign and beneficial projects until litigation (inclusive of appeals) is completed—typically about in four to five years. This judicial outcome uncertainty has made lenders, investors, and grantors unwilling to fund projects while CEQA lawsuits remain pending, thereby allowing CEQA petitioners to avoid the judicial preliminary injunction process, in which they must persuade a judge that they are likely to prevail on the merits, and will suffer irreparable harm unless the project is halted. A judge can also require petitioners to post a bond to cover delay damages if their lawsuit is ultimately determined to be meritless. Judicial uncertainty in CEQA lawsuits has, in practice, meant that judges can only stand by for the eighteen to twenty-four months of delay that petitioners obtain by the simple act of a filing a lawsuit and paying a small court filing fee. CEQA lawsuit outcome uncertainty is also a profoundly influential factor in how much time and money is spent on CEQA compliance (especially for projects more likely to be sued, such as housing in wealthier communities, as was shown in the second of this CEQA study series). The study examines CEQA jurisprudence in contrast to the administrative jurisprudential factors typically applied to statutes and regulations, and explains the practical consequences of judicially-imposed expansions of CEQA—and judicially-rejected enacted legislation imposing, by statute, interpretive and remedy constraints on judicial outcomes in CEQA lawsuits. One potential explanation for this judicial rejection of the plain language of statutes, such as prohibiting courts from imposing a CEQA remedy to stop construction of a legislative office building in Sacramento unless the office building caused health or safety harms or adversely affected a previously-unknown significant tribal resource; notwithstanding this statutory language, the appellate court stopped this construction project based on historic resource and aesthetic concerns. 2022] In the Name of the Environment Part III 59 This Article notes that CEQA lawsuits are also filed as “writs”—not ordinary civil lawsuits—which have a long history and tradition of vesting extraordinary discretion in the judiciary, which acts as a separate and co-equal branch of government and has an independent role in enforcing the Rule of Law, including through use of its equitable authorities. Courts enforce statutes all the time, however, in both writ and non-writ proceedings, and the key attributes of the Rule of Law—including knowing in advance what the law requires—have not constrained many judicial decisions that expand CEQA well beyond what is required by any clear, discernable compliance mandate in CEQA statutes or implementing regulations. Legislative reform of CEQA, unless acceptable to powerful special interests such as certain labor and environmental organizations, remains mired in Sacramento’s politics. The actual pattern of CEQA lawsuits, reflected in this and the prior two studies, should give pause to CEQA’s status quo defenders, who— like this author—often personally profit from CEQA’s unbounded costs and schedules. CEQA’s most visible status quo defenders assert their allegiance to the environment and “environmental justice” (though not other civil rights); they have been buoyed by special interests who wield CEQA as a sword to protect proprietary (and often economic) interests. CEQA’s statutory bias is to preserve the status quo, even when the status quo is causing ongoing harms to people (including hard working families who never voted to abandon the California Dream of homeownership but have been priced out by the housing crisis), or the environment (which needs change to prevent forest fires and catastrophic floods, and achieve massive change to energy production and climate adaptation). With multi-year studies followed by an over four-year litigation slog, CEQA’s foundational prioritization of procedural perfection undermines solving urgent housing, civil rights and environmental priorities. California has enacted thousands of environmental laws and regulations since CEQA was signed into law in 1970. CEQA’s extended adolescent fixation on process over progress—inclusive of unpredictable, grandiose, and chaos-inducing behaviors and outcomes—needs to grow up. This Study makes the same three CEQA reform suggestions as prior studies, and adds one more. First, end anonymous CEQA lawsuits: parties filing CEQA lawsuits need to identify who they are, and show that they are suing to protect the environment, just like they’ve always had to do when suing under federal environmental lawsuits. Second, end 60 Chapman Law Review [Vol. 26:1 duplicative CEQA lawsuits: once a project or plan has completed the CEQA process, no new CEQA lawsuits can be filed as the project is constructed and plan is implemented—progress must occur and process must end. Third, match the remedy to the crime: if an agency made a mistake and didn’t study an impact enough, then the appropriate judicial remedy in CEQA—as already prescribed in the CEQA statute itself—is for a judge to require more study and mitigation, without rescinding project approvals and requiring agencies and applicants to re-do the CEQA process for another two years, followed by another six years of litigation after that. Housing delayed in housing denied, and a deficient traffic study shouldn’t result in a six year re-run of CEQA processing. Fourth, and new for this Study: this author’s plea for the judiciary to return to the norms of administrative law jurisprudence, and cannons of statutory construction, when deciding CEQA cases. Simply: no Legislative reform will be effective without judicial outcome predictability consistent with the Rule of Law. INTRODUCTION ...........................................................................62 I. STUDY BACKGROUND AND METHODOLOGY ..............................70 II. CEQA V.HOUSING ................................................................75 A. CEQA v. Apartments ................................................79 B. CEQA v. Agency Plans and Ordinances Allowing More Housing ............................................................81 C. CEQA v. Homeownership for Middle Income Families .....................................................................88 D. CEQA v. Students .....................................................94 E. CEQA v. Old People ..................................................96 F. CEQA v. Homelessness .............................................96 G. CEQA v. Single Family Homes/Casitas ...................97 III. CEQA V.EVERYTHING ELSE (NON-HOUSING) .................... 100 A. CEQA v. Public Infrastructure, Public Services, Utility, and Renewable Energy Projects ................ 102 1. CEQA v. Water Equity ........................................ 102 2. CEQA v. Streets and Sidewalks ......................... 109 3. CEQA v. Schools .................................................. 110 4. CEQA v. Parks/Trails ......................................... 111 2022] In the Name of the Environment Part III 61 B. CEQA v. Non-Residential Private Projects ............ 111 1. CEQA v. Cannabis .............................................. 112 2. CEQA v. Warehouse/E-Commerce...................... 113 3. CEQA v. Renewable Energy ............................... 115 4. CEQA v. Agriculture ........................................... 116 5. CEQA v. Fun ....................................................... 116 6. CEQA v. Retail .................................................... 117 7. CEQA v. Hotels ................................................... 117 8. CEQA v. Not Much Else...................................... 117 C. CEQA v. Non-Residential Agency Plans and Regulations ..............................................................118 1. CEQA v. Climate Change ................................... 119 IV. CEQA AND THE RULE OF LAW ............................................ 122 A. Administrative Law Jurisprudence v. CEQA Jurisprudence ..........................................................124 1. Student Noise and Conventional Administrative Law Practice ........................................................125 a. Plain Language Rule ......................................... 126 b. Deference to Expert Administrative Agency Interpretation .................................................. 126 c. Deference to Lead Agency Analytical Methodology and Factual Findings ...................................... 126 d. Consistency with Other Statutes, and with Constitutional Protections .............................. 127 2. CEQA Jurisprudential Deviations from Administrative Law Norms: Undergraduate Student Dorm Occupancy Example ....................127 3. Next Steps with Social Noise and CEQA ........... 128 B. CEQA and The Rule of Law .................................... 130 1. Off the Rails: Leading Court Cases Creating Modern CEQA Jurisprudence ............................132 2. 1993 and Beyond: Legislature’s Largely Failed Attempts to Restore Administrative Law Jurisprudence to CEQA ..................................... 141 62 Chapman Law Review [Vol. 26:1 3. The Legislature Turns “Transactional” – Favored or Priority Projects Granted Statutory Exemptions from CEQA, Less Politically Powerful Projects Left to Flounder in Uncertainty ................................. 152 4. Legislature v. CEQA Jurisprudence................... 154 V. RECOMMENDATIONS AND NEXT STEPS..................................155 INTRODUCTION This is the third in a series of how California’s venerable environmental law, the California Environmental Quality Act (“CEQA”), enacted in 1970, is actually litigated in the real world. All three studies examined all CEQA lawsuits filed statewide, and each concluded that the most frequent target of CEQA lawsuits was housing approved in existing communities. The studies spanned 2010-2012, 2013-2015, and this current study period of 2019-2021. In our second study, published in the Hastings Environmental Law Journal, I observed that CEQA lawsuits “provide a uniquely powerful legal tool to block, delay, or leverage economic and other agendas,” and “is now the tool of choice for resisting change that would accommodate more people in existing communities.”1 These observations, and other data and observations from our second study, were quoted at length in a recent First District Court of Appeal case involving a twenty-five-year odyssey and 900-page Environmental Impact Report (“EIR”) for a thirty-four single family home project on a parcel in Marin County adjacent to the wealthy town of Tiburon (median home price, $2,862,1772). As the Court of Appeal observed, “all of these . . . observations are vindicated in this woeful record before us.”3 California has the highest poverty rate, and highest homeless population, in the nation.4 There’s a common reason for these shocking humanitarian failures by the fourth largest economy on 1 Jennifer Hernandez, California Environmental Quality Act Lawsuits and California’s Housing Crisis, 24 HASTINGS ENV’T L.J. 21, 40–41 (2018) [hereinafter Hernandez, In the Name of the Environment II: 2013-2015]. 2 Tiburon Home Values, ZILLOW, http://www.zillow.com/home-values/34285/tiburon- ca/ [http://perma.cc/DY82-5SX2] (last visited Mar. 19, 2023). 3 Tiburon Open Space Comm. v. County of Marin, 294 Cal. Rptr. 3d 56, 122 (Ct. App. 2022). 4 California Poverty: Basic Statistics, END POVERTY IN CAL., http://endpovertyinca.org/ca-poverty-statistics/ [http://perma.cc/ZE68-BD5P] (last visited Mar. 19, 2023); California Homelessness Statistics, U.S. Interagency Council on Homelessness, http://www.usich.gov/homelessness-statistics/ca/ [http://perma.cc/GN2A- SH6T] (last visited Mar. 19, 2023). 2022] In the Name of the Environment Part III 63 the planet,5 long governed by a supermajority of Democrat state officers and Legislators, in one of the deepest green states in the nation: state policies block housing that’s affordable to its residents, with leaders and advocates defending state policies in the name of the environment (and now climate), even when they expressly acknowledge the exclusionary harms their policy choices inflict on younger families, communities of color, and middle income (including union) workers. In December 2022, the California Air Resources Board (“CARB”)—California’s leading air quality and climate agency— adopted a “Scoping Plan”6 that included scores of policy choices and mandates to reduce greenhouse gas (“GHG”) emissions using a metric that primarily counts electricity and petroleum consumption by California’s residents and businesses.7 For example, the Scoping Plan counts GHG from cement and other building products produced in California and does not count GHG from imported cement and other products.8 The Scoping Plan includes hundreds of GHG and climate policy choices, and was unanimously-adopted by a Board consisting entirely of appointees of Democratic party leaders in the state.9 CARB’s policy choices, as the Scoping Plan expressly concludes, is that households making $100,000 or less will bear a disproportionately high cost burden to pay for the state’s climate policy choices (including housing).10 CARB further acknowledges that these middle and lower income households are far more likely to be comprised of Black or Latino residents than White or Asian residents.11 I describe the disparate race-and-class-based harms inflicted on Californians under the climate change environmental 5 See Matthew A. Winkler, California Poised to Overtake Germany as World’s No. 4 Economy, BLOOMBERG (Oct. 25, 2022, 5:22 AM), http://www.bloomberg.com/opinion/articles/2022-10-24/california-poised-to-overtake- germany-as-world-s-no-4-economy [http://perma.cc/SW6D-UZAZ]. 6 CARB Approves Unprecedented Climate Action Plan to Shift World’s 4th Largest Economy from Fossil Fuels to Clean and Renewable Energy, CAL.AIR RES.BD. (Dec. 15, 2022) [hereinafter CARB Approves] http://ww2.arb.ca.gov/news/carb-approves- unprecedented-climate-action-plan-shift-worlds-4th-largest-economy-fossil-fuels [http://perma.cc/KYK6-LNX4]. 7 CAL.AIR RES.BD.,2022SCOPING PLAN FOR ACHIEVING CARBON NEUTRALITY 158 (2022). 8 Id. at 86, 208. 9 See CARB Approves,supra note 6; Nadia Lopez, California Approves Far-Reaching Strategy for Tackling Climate Change. So What’s Next?, CALMATTERS (Dec. 15, 2022), http://calmatters.org/environment/2022/12/california-plan-climate-change/ [http://perma.cc/ANA2-QWP8]. 10 See CAL.AIR RES.BD., 2022 SCOPING PLAN FOR ACHIEVING CARBON NEUTRALITY 124–26 (2022). 11 See id. at 126–27. 64 Chapman Law Review [Vol. 26:1 banner, in which recently-invented CEQA climate change “impacts” of people who occupy new housing play a pivotal role, in Green Jim Crow.12 Green Jim Crow lays bare the racist attributes of core climate policies that are implemented through CEQA, such as the elevation of Vehicle Miles Travelled (“VMT”) as an environmental “impact” even when the vehicle being driven is a zero emission electric car. The goal of the VMT policy was to focus more housing near high frequency transit, and increase housing density, to reduce GHG emissions from the ordinary activities of Californians.13 In actuality, the neighborhoods slated for redevelopment into high density housing under the VMT policies largely overlapped with majority Black and ethnic minority neighborhoods first mapped by federal mortgage insurance “redlining” maps to deny residents of these neighborhoods access to the attainable homeownership programs offered to White residents (and veterans) under the New Deal and beyond.14 The VMT incentive policies increase gentrification and displacement, and incentivize exceptionally high cost housing ($1,000 or more per square foot, resulting in $3,500 or more monthly rents or over $1 million or more condos), to the direct detriment of displaced communities of color and other median/low income households.15 As discussed further, infra, VMT “mitigation” obligations add costs of $50,000 or more to new housing in non- transit locations, which are most frequently used to subsidize public transit or construct bike lanes for other people, somewhere else, even if not proximate to the new housing. Like the cost of land, labor, and building materials, mitigation costs imposed by agencies increase the cost of producing new housing, but VMT mitigation costs are most often assessed against families forced to “drive until they qualify” for housing they can afford to buy or rent, who must still drive to get to work (like more than ninety-five percent of Californians).16 People buying or renting these lower cost suburban homes are most likely to be the median/middle income households (now majority minority) who cannot afford high density housing in the fraction of one percent of California located within a half mile from high frequency bus stops, rail stations, or ferry terminals.17 12 Jennifer Hernandez, Green Jim Crow, BREAKTHROUGH INST. (Aug. 16, 2021), http://thebreakthrough.org/journal/no-14-summer-2021/green-jim-crow [http://perma.cc/8TPF-EV5R]. 13 See id. 14 See id. 15 See id. 16 See generally id. 17 See generally id. 2022] In the Name of the Environment Part III 65 This Part Three of our In the Name of the Environment series provides further evidence of California’s anti-housing environmental/climate agenda: as described in more detail in Part II (CEQA v. Housing), just 7 of the 514 lawsuits in this Study’s dataset sought to block 1,079,347 planned housing units (half to one-third of California’s estimated housing shortfall). Lawsuits filed in just one year (2020) sought to block just under 48,000 approved housing units (the equivalent of just under half of California’s total annual housing production). The entrenched strength of these environmental/climate anti-housing stakeholders is all the more remarkable given the Governor’s conclusion that the state has 3.5 million fewer housing units than it needs,18 and given the scores of new laws enacted by the Legislature and signed by the current and former governor to spur increased housing production. CEQA remains a revered cornerstone of California’s environmental laws, even as all three In the Name of the Environment CEQA studies confirm that CEQA lawsuits are most often aimed at blocking housing and climate priorities purportedly supported by the state’s elected leaders. More academic researchers, including once-ardent CEQA status quo defenders, have independently confirmed the accuracy of the data in our studies—and increasingly have also acknowledged its use as an anti-housing exclusionary tool by wealthier communities. For example, as explained by UC Berkeley Law Professor Eric Biber in CEQA and Socioeconomic Impacts: Why Expanding CEQA to Cover Socioeconomic Impacts Might Harm Equity Goals, in a comment criticizing an appellate court decision to roll back undergraduate enrollment at UC Berkeley: In research I have helped work on about how CEQA and local land-use law is implemented for housing projects in California, we have found evidence that litigation and administrative appeals are more common in wealthier neighborhoods fighting projects. This suggests it is more likely that more privileged communities will use socioeconomic impact analysis challenges under CEQA to stop needed housing projects, housing that is needed to resolve the state’s dire housing crisis.19 Professor Biber’s research observation mirrors my own. In our second study, California Environmental Quality Act Lawsuits and 18 Gavin Newsom, The California Dream Starts at Home, MEDIUM (Oct. 20, 2017), http://medium.com/@GavinNewsom/the-california-dream-starts-at-home-9dbb38c51cae [http://perma.cc/3QDJ-LJLJ]. 19 Eric Biber, CEQA and Socioeconomic Impacts, LEGALPLANET (Sept. 26, 2021), http://legal-planet.org/2021/09/26/ceqa-and-socioeconomic-impacts/ [http://perma.cc/JD8X- AAHL]. 66 Chapman Law Review [Vol. 26:1 California’s Housing Crisis, we mapped the location of the nearly 14,000 housing units challenged in a swath of Southern California to show that anti-housing CEQA lawsuits are indeed far more common in Whiter, wealthier, and healthier neighborhoods.20 Challenges to the CEQA status quo have also become more frequent, and less politically verboten, by elected leaders. For example, CEQA has been described by a prominent State Senator and pro-housing production leader as “the law that swallowed California.”21 This Study provides direct evidentiary support for the accuracy of that observation in Parts II (CEQA and Housing) and Part III (CEQA and Everything Else). Part IV examines CEQA judicial precedents, including the unwillingness of many courts to apply longstanding administrative jurisprudential canons such as deferring to the plain language of the CEQA statute, in anti-housing and other CEQA lawsuits. CEQA jurisprudence—reported appellate and Supreme Court decisions— has made the outcome of CEQA lawsuits entirely unpredictable, as we first reported in an earlier study examining fifteen years of judicial outcomes in CEQA lawsuits.22 No statute should be so ambiguous, uncertain, or incomprehensible that our institutions and people don’t know what’s even required under our Rule of Law system, as described by the American Bar Association.23 Unless agencies—and those regulated by agencies including project applicants—know what the law requires, the adequacy of CEQA compliance more closely resembles judicial outcomes of core Constitutional disputes such as the fuzzy line between free speech and obscenity, which prompted U.S. Supreme Court Justice Potter Stewart’s famous test for what is obscene: “[he] know it when [he] sees it.”24 20 Hernandez, In the Name of the Environment II: 2013-2015, supra note 1, at 30–32. 21 Alexander Nieves, Politico Q&A: California Senate Housing Chair Scott Wiener, POLITICO (Mar. 10, 2022, 7:00 AM), http://www.politico.com/news/2022/03/10/scott-wiener- ceqa-housing-00015320 [http://perma.cc/92ZL-ZQTX]. 22 See JENNIFER L. HERNANDEZ ET AL., HOLLAND &KNIGHT, CEQA JUDICIAL OUTCOMES:FIFTEEN YEARS OF REPORTED CALIFORNIA APPELLATE AND SUPREME COURT DECISIONS 5 (2015) [hereinafter Hernandez, In the Name of the Environment I: 2010-2012], http://www.hklaw.com/files/Uploads/Documents/Articles/0504FINALCEQA.pdf [http://perma.cc/2CQX-4WVU]. 23 See Rule of Law Initiative, AM.BAR ASS’N, http://www.americanbar.org/advocacy/ rule_of_law/ [http://perma.cc/72LY-JN7X] (last visited Apr. 2, 2023). 24 “I Know it When I See it”: A History of Obscenity & Pornography in the United States, WASH.UNIV. IN ST.LOUIS ARTS &SCIS., http://history.wustl.edu/i-know-it-when-i-see-it- history-obscenity-pornography-united-states [http://perma.cc/CY6V-L5YX] (last visited Apr. 1, 2023). Obscenity is not protected by the First Amendment. Obscenity, Dep’t. Just. (Mar. 29, 2021), http://www.justice.gov/criminal-ceos/obscenity#:~:text=Obscenity%20is%20not%20 protected%20under,if%20given%20material%20is%20obscene [http://perma.cc/G42C-DNS9]. 2022] In the Name of the Environment Part III 67 For years after our CEQA judicial outcome study was published, and consistently through today, CEQA status quo defenders excuse unpredictable judicial outcomes and persist in blaming agencies for losing CEQA lawsuits because they are “not doing CEQA the right way.”25 However, two prominent law school professors (and longtime CEQA status quo defenders) opined in a recent amicus brief defending a longtime CEQA petitioner lawyer.26 The petitioner lawyer’s conduct met the legal test of “malicious prosecution” when she intentionally filed a meritless CEQA lawsuit to block a single family home project in San Anselmo (near Tiburon, also in Marin County).27 In the brief, the law school professors explained that the “fact” of CEQA litigation uncertainty is “universally acknowledged,” citing to the accuracy of data we gathered in an earlier CEQA study showing roughly 50/50 odds of a project opponent beating an agency in a CEQA lawsuit.28 Well into fifteen years of our comprehensive study of CEQA, it is impossible to explain CEQA litigation patterns without highlighting the role the judiciary has and continues to play in expansively and creatively applying CEQA to identify new analytical and other requirements that are not expressly written into CEQA, the CEQA Guidelines, or any prior published case comprising CEQA jurisprudence. This third In the Name of the Environment study recommends, in Part V, that the California Supreme Court grant review of a recent UC Berkeley appellate court decision, which elevates for the first time the “social noise” of partying undergraduates in unbuilt dorms as a CEQA impact, and take the opportunity created by this review to revisit CEQA jurisprudence. It has been fifty-one years since the California Supreme Court’s first CEQA decision, Friends of Mammoth, involves a condo project near Mammoth ski resort.29 In that case, the Court 25 Richard Drury, Remarks at 2022 Environmental Law at Yosemite: CEQA Update (Oct. 15, 2022), http://cla.inreachce.com/Details/Information/e30ce592-0a46-4f23-80e5- 2af3b4084930 [http://perma.cc/E3WL-WNC7] (recording available for purchase here); Richard Drury, Remarks at CEQA New Developments and Practice Challenges for 2022 (Dec. 2022), http://cle.com/seminars.php?page=0&ord=date&ordby= [http://perma.cc/2TZR- WMG9] (recording available for purchase here); see generally CEQA Works Coalition, PLAN. &CONSERVATION LEAGUE, http://www.pcl.org/campaigns/ceqa/ceqa-works-coalition/ [http://perma.cc/LL55-WU9R]. 26 See Brief for Richard M. Frank & Sean B. Hecht as Amici Curiae Supporting Appellants, Jenkins v. Brandt-Hawley, 302 Cal. Rptr. 3d 883 (Ct. App. 2022) (No. A162852) [hereinafter Frank & Hecht Amicus Brief]. 27 Id. 28 Id. 29 Friends of Mammoth v. Bd. of Supervisors, 502 P.2d 1049 (Cal. 1972). 68 Chapman Law Review [Vol. 26:1 directed lower courts to interpret CEQA broadly to protect the environment.30 That decision is the most often cited by courts that decline to apply the plain language of CEQA’s statutes. Friends of Mammoth continues to serve as the rationale for courts’ willingness to require the most draconian of CEQA remedies—rescission of project approval pending more CEQA legislation. This draconian remedy has been applied even to housing that has been constructed, and occupied, while the lawsuit was pending. Justice Chin, in a dissent to an anti- housing CEQA lawsuit in which all justices agreed that CEQA was not a population control statute, stated: “We have caution[ed] that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.”31 The outsize use of CEQA lawsuits to block housing in existing communities is just one cause of the housing crisis, and the Legislature is dutifully enacting dozens of laws each year to try to spur housing production to address the state’s multi- million housing unit shortfall. This is not California’s first CEQA versus housing battle of the “super-statutes,”32 as another law professor has quipped.33 The new housing legislation is again at risk of being crushed by CEQA,34 repeating the last round where the legislation directed more and faster housing approvals in the 1980s, only to be crushed by CEQA judicial decisions which included judicial rejection of plain language statutory directives beginning with the wholesale rejection of most 1993 legislative reforms to CEQA and continuing through the UC Berkeley 30 See generally Friends of Mammoth, 502 P.2d at 1049. 31 Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, 361 P.3d 342, 367 (2015) (Chin, J., dissenting) (quoting Citizens of Goleta Valley v. Bd. of Supervisors, 801 P.2d 1161, 1175 (1990)). The majority agreed that “CEQA is not intended as a population control measure.” Id. at 350. 32 See James Brasuell, Land Use Regulations on a Collision Course in California, PLANETIZEN (Dec. 2, 2021, 8:00 AM), http://www.planetizen.com/news/2021/12/115441- land-use-regulations-collision-course-california [http://perma.cc/XC8T-346U]. 33 See Christopher S. Elmendorf & Tim Duncheon, Does the HAA (or Anything Else) Provide a Remedy CEDQA-Laundered Project Denials?, SLOG (Dec. 1, 2021), http://www.sloglaw.org/post/does-the-haa-or-anything-else-provide-a-remedy-ceqa-laundered- project-denials [http://perma.cc/VCT4-JQ69]; Christopher S. Elmendorf & Tim Duncheon, How CEQA and the HAA Became “Super”, SLOG (Nov. 30, 2021), http://www.sloglaw.org/post/how- ceqa-and-the-haa-became-super [http://perma.cc/J9XL-XGY9]. 34 See Yes in my Back Yard, a California Nonprofit et al vs. City and County of San Francisco et al (CEQA Case), No. CPF22517661, THE SUPERIOR COURT OF CAL., CNTY. OF S.F., http://webapps.sftc.org/ci/CaseInfo.dll?CaseNum=CPF22517661&SessionID=41B83325A4C4D B77D1B4300F3F09A3BA9FBD2C93 [http://perma.cc/QU78-3VBL] (last visited Apr. 1, 2023). 2022] In the Name of the Environment Part III 69 student housing case in February 2023.35 Unless the California Supreme Court and appellate courts revisit their own “business- as-usual” CEQA jurisprudence, pro-housing, pro-civil rights, and pro-climate resiliency statutory mandates and funding priorities will be first delayed and then crushed by status quo defenders in CEQA lawsuits. Fortunately, the judiciary’s pathway to success is less politically fraught than the Legislature’s navigation through the swarm of special interests that use CEQA to advance their own economic and (non-environmental) policy goals. In what I fervently hope will be the last in our In the Name of the Environment series, I write this to give voice to struggling, hard-working Californians who do not have a swarm of special interest lobbyists but do need and deserve to be able to work hard and buy a home (and shouldn’t need to visit their kids and grandkids via videoconference because the kids couldn’t afford to stay in California). I write this to give voice to lower income Californians scrambling for too few affordable units who endure decade-long lottery delays for taxpayer-funded affordable housing (and do not want to rent a one bedroom cottage in someone else’s backyard to raise their family). I write this for residents who need (and pay among the highest taxes in the country to use) effective, reliable, and affordable water, transportation, and energy infrastructure, as well as public services like parks, schools, and public safety. For the people who could not just de-camp to Hawaii during the state’s extended COVID lock-down, for those without fancy college degrees who make a living by showing up and doing a job, not just tapping on a keyboard. For these people—my families and the tens of millions of families like mine—we urgently need the state’s elected leaders and our distinguished judiciary to please restore CEQA to ordinary administrative law jurisprudence, and allow critically-needed housing, climate resilient infrastructure, water supplies, and public services to be built in full compliance with the thousands of environmental protection statutes and regulations adopted since 1970—and stop allowing CEQA to be the massive Not in My Back Yard (“NIMBY”) status quo defender (and special interest extortion tool) that it has evolved into over the past fifty-two years. 29 See Make UC A Good Neighbor v. Regents of Univ. of Cal., 304 Cal. Rptr. 3d 834 (Ct. App. 2023). 70 Chapman Law Review [Vol. 26:1 POLITICAL CARTOON36 I. STUDY BACKGROUND AND METHODOLOGY CEQA requires that any party who files a lawsuit alleging noncompliance with CEQA must send a copy of that lawsuit to the California Attorney General (“Cal AG”).37 For all data gathered in all three of our In the Name of the Environment studies, we sent Public Records Act requests to the Cal AG asking for copies of all CEQA lawsuits filed during each of our three, three-year study periods (2010–2012, 2013–2015, and 2019–2021). Each petition was then reviewed, with pertinent data (such as project location, type of agency action/project challenged, etc.) entered into datasheets, and then compiled into the categories reported in each study.38 The third data set comprising this Study is reported in Parts III and IV below. For those unfamiliar with CEQA, we start with a very brief summary of this law and suggest that readers review Getting Started with CEQA, published by the Governor’s Office of 36 Tom Meyer, CEQA Cartoon. 37 See CAL. PUB. RES. CODE § 21167.7 (West 2023) (requiring parties to furnish a copy of the petition, as well as any amended or supplemental petition, to the Attorney General’s Office within ten days after filing the pleading). 38 As with past years, copies of each CEQA lawsuit, and datasheets, can be made available for in-person review in the author’s law office by appointment. 2022] In the Name of the Environment Part III 71 Planning & Research (“OPR”).39 OPR is the state agency assigned by CEQA to develop “guidelines”—which serve as the equivalent for most purposes of regulations—to provide more detailed and practical directions on CEQA compliance requirements.40 CEQA is both a procedural statute, requiring analysis and public disclosure of the environmental consequences of proposed agency actions, and a substantive statute, requiring that public agencies fully consider public comments as well as avoid or minimize to the greatest extent feasible significant adverse environmental impact. Only after an agency requires all such “feasible”41 means of avoiding or reducing an environmental impact is an agency nevertheless allowed to approve a project based on an “overriding” social (e.g., affordable housing), economic (e.g., job-creating), legal (e.g., emergency response to a fire or broken bridge), or technological (e.g., energy conserving LED lighting retrofits), benefits of a project.42 CEQA applies to both public agency approvals of their own plans, regulations, and policies and to public agency decisions to approve or fund projects undertaken by the private parties from homeowners to large corporations. Scores of statutory exemptions to CEQA have been approved over the past decades, which are typically limited to politically favored projects, and also include numerous eligibility criteria and restrictions which render many “unicorns”—much discussed, rarely if ever seen in practice.43 There are also limited regulatory (or “categorical”) exemptions from CEQA for project categories that “normally” would not result in adverse environmental impacts.44 Whether a project qualifies for either a statutory or regulatory exemption can also be challenged in a CEQA lawsuit. A CEQA lawsuit challenges whether an agency has properly complied with CEQA, but in most cases is intended to—and does— block construction of the approved agency or private party project 39 Getting Started with CEQA, GOVERNOR’S OFF. OF PLANNING AND RSCH., http://opr.ca.gov/ceqa/getting-started/ [http://perma.cc/GZ4Z-4HZ9] (last visited Apr. 1, 2023). 40 See id. 41 CAL.CODE REGS. tit. 14, § 15021 (2023). 42 See CAL.CODEREGS. tit. 14, § 15093 (2023). 43 See, e.g., CAL.CODE REGS. tit. 14, §§ 15260–15285 (2023); see also Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 82-84; Jennifer L. Hernandez et al., SB7 Creates Expedited CEQA Litigation Schedule for Qualifying Projects, HOLLAND &KNIGHT (May 28, 2021), http://www.hklaw.com/en/insights/publications/2021/05/sb-7- creates-expedited-ceqa-litigation-schedule [http://perma.cc/2KEL-FALT]. 44 CAL.CODE REGS. tit. 14, §§ 15300–15333 (2023). 72 Chapman Law Review [Vol. 26:1 until the lawsuit is resolved.45 There are two reasons for this practical consequence. First, as recently acknowledged in an amicus filing by two longtime CEQA practitioners (both of whom were tenured law school professors at the University of California—one of whom after decades of senior service in the California Attorney General’s office and the other having since moved on to the Earthjustice environmental advocacy organization), the outcome of judicial decisions in CEQA cases is entirely unpredictable.46 Second, the most common judicial remedy in CEQA decisions against agencies (which happen in about fifty percent of CEQA appellate court cases),47 is that the project approval is rescinded pending further CEQA processing and re-approval.48 Even completed apartment projects with tenants in occupancy have been ordered vacated49 and have been left vacant for years based on a CEQA deficiency identified by a judge or appellate court, often for aesthetic or other non-polluting and non-safety reasons, years after the project was approved.50 CEQA lawsuits typically require two to five or more years to resolve, with one lawsuit involving a single family home project on an existing lot in Berkeley that was unanimously supported by adjacent neighbors, the appointed Planning Commission, and the elected City Council, tied up in the courts for eleven years. The Berkeley family homeowner won the lawsuit, but raised their 45 See Jennifer L. Hernandez, California’s Environmental State Agencies Are Converting CEQA’s Anti-Project Howitzer into a Neutron Bomb, DAILY J. (Aug. 25, 2022), http://www.dailyjournal.com/articles/368863-california-s-environmental-state-agencies-are- converting-ceqa-s-anti-project-howitzer-into-a-neutron-bomb [http://perma.cc/N5ZV-FRC8]. 46 Frank & Hecht Amicus Brief, supra note 28, at 12–13. 47 See Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 80. 48 See CEQA Remedies Clarified, MANATT (Nov. 2, 2012), http://www.manatt.com/insights/newsletters/real-estate-and-land-use/ceqa-remedies- clarified [http://perma.cc/KSD4-RF6M]; see also Arthur F. Coon, Remedial Legal Logic: Fifth Circuit Doubles Down on Split with Other Districts, MILLER STARR REGALIA: CEQA DEVS. (Nov. 29, 2020), http://www.ceqadevelopments.com/2020/11/29/remedial-legal-logic- fifth-district-doubles-down-on-split-with-other-districts-in-holding-ceqa-doesnt-allow- limited-writ-remedy-of-partial-eir-decertification-but-does-it-really-m/ [http://perma.cc/M3RG-XK5N]. 49 See Bianca Barragan, Everyone Living in Hollywood’s Sunset and Gordon Tower Has to Move Out, CURBED L.A. (Mar. 20, 2015, 12:49 PM), http://la.curbed.com/archives/2015/03/sunset_gordon_eviction.php#more [http://perma.cc/P5EC-9E2D]. 50 See id.;see also David Garrick, A New Ruling Could Thwart High-Rise Housing Development in San Diego by Complicating Approvals, SAN DIEGO UNION-TRIB. (Feb. 4, 2023, 5:00 AM), http://www.sandiegouniontribune.com/news/politics/story/2023-02- 04/junipers-ruling-environmental-impact-review-housing [http://perma.cc/HRP2-AB6Y]; M. Nolan Gray, How Californians Are Weaponizing Environmental Law, THE ATLANTIC (Mar. 12, 2021), http://www.theatlantic.com/ideas/archive/2021/03/signature- environmental-law-hurts-housing/618264/. 2022] In the Name of the Environment Part III 73 children elsewhere as their dream house remained mired in litigation and has to this date never been built.51 In our prior two studies, In the Name of the Environment: Litigation Abuse Under CEQA (the “2010–2012 Study”)52 and California Environmental Quality Act Lawsuits and California’s Housing Crisis (the “2013–2015 Study”),53 we showed how CEQA lawsuits have become weaponized to block environmentally beneficial as well as benign projects. For example, in our 2010- 2012 Study we showed that CEQA lawsuits are rarely (thirteen percent) filed by recognized environmental advocacy organizations such as the Sierra Club or Center for Biological Diversity,54 and are instead almost always filed by either individuals, or new and often informal organizations (e.g., named, “Save Fifth Street”) with no identified funding source which was created for the purpose of opposing the challenged project.55 Through investigative journalists and concurrent media reports, we were able to show that these shadowy new organizations were fronts for anonymous neighbors (e.g., a Berkeley homeowner who opposed the remodel of the community library), competitors (e.g., warring gas station owners), and labor (e.g., retail clerk and construction unions).56 Unlike all other similar state and federal environmental laws, CEQA lawsuits can be filed by anonymous entities whose primary litigation objective is not protecting the environment.57 Our prior two studies also showed that, in stark contrast to the old growth forest clear cuts, major chemical factories, and massive freeways under consideration when CEQA was adopted in 1970, modern CEQA lawsuits are primarily filed to block housing and public infrastructure projects in existing neighborhoods, especially cities.58 Increased traffic congestion, construction noise, changes to the “character of a community,” and 51 See Arthur F. Coon, First District Upholds CEQA Class 3 Categorical Exemption, MILLER STARR REGALIA: CEQA DEVS. (Feb. 12, 2019), http://www.ceqadevelopments.com/2019/02/12/first-district-upholds-ceqa-class-3- categorical-exemption-for-single-family-residence-projects-in-berkeley-hills-rejects-claim- that-location-exception-applies-based-on-site/ [http://perma.cc/M9R5-PZXZ] (discussing Berkeley Hills Watershed Coal. v. City of Berkeley). 52 Hernandez, In the Name of the Environment I: 2010-2012, supra note 22. 53 Hernandez, In the Name of the Environment II: 2013-2015, supra note 1. 54 See Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 24. 55 See id. 56 See id. at 19, 93. 57 See id. at 24. 58 See id. at 9–15; see also Hernandez, In the Name of the Environment II: 2013-2015, supra note 1, at 28–31. 74 Chapman Law Review [Vol. 26:1 other unremarkable characteristics of a growing population, thriving job market, and vibrant but evolving community largely replaced the suite of “environmental” impacts at issue when CEQA was adopted, such as causing the extinction of a an endangered species, spewing vast quantities of pollution into the air or water, or destroying the scenic vista of a national park.59 As CEQA reached middle-age (forty years old in 2010), as shown in the first two of our In the Name of the Environment series, CEQA lawsuits were far more likely to be used in “micro- environment” neighborhood disputes, like challenging the renovation of an elementary school cafeteria, the installation of all-weather turf on a public park soccer field, remodels of single family homes, the construction of apartments in existing neighborhoods, and even the addition of neighborhood-conforming single family homes on infill sites like former elementary schools and golf courses. As one commenter has noted in The Atlantic, CEQA has evolved into “a system that subjects even humdrum infill proposals to obtuse multi-binder reports and shady dealings, leaving a housing-affordability crisis in its wake.”60 CEQA lawsuits only challenge approved projects: CEQA follows investment capital.61 In the 2010–2012 Study, for example, we showed that during the state’s first major federal infusion of public funding for transit and renewable energy during the Obama Administration, more CEQA lawsuits challenged solar projects than natural gas power, industrial, and mining projects combined—and more CEQA lawsuits challenged public transit than public highway projects.62 But blocking housing remains CEQA’s most fecund litigation practice. California’s housing crisis has been an acute problem for decades.63 In both earlier studies, we showed that housing was the top target of CEQA lawsuits challenging private 59 See, e.g., Hernandez, In the Name of the Environment II: 2013-2015, supra note 1, at 68–71. 60 M. Nolan Gray, How Californians Are Weaponizing Environmental Law And How to Fix It, ATLANTIC, http://www.theatlantic.com/ideas/archive/2021/03/signature- environmental-law-hurts-housing/618264/ (last visited Apr. 15, 2023). 61 See Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 43; cf. id. at 22 (“It should come as no surprise that banks making construction loans, and government agencies making time-sensitive grant and appropriations decisions, usually decline to fund projects while a CEQA lawsuit is pending.”). 62 See Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 43–44, 52–53. 63 See LAO Housing Publications, LEGIS.ANALYST’S OFF., http://lao.ca.gov/ laoecontax/housing [http://perma.cc/UKH9-N4Z5] (last visited Mar. 23, 2023). 2022] In the Name of the Environment Part III 75 projects.64 Public agency plans and zoning decisions that allowed new housing—as well as public agency school and water infrastructure needed for new homes—were the top target of CEQA lawsuits challenging public agency projects.65 In a deep- dive into anti-housing CEQA lawsuits in the state’s most populous Southern California region, in our 2018 Study we also showed that CEQA lawsuits against housing were more likely to be filed against apartments located near public transit in the region’s wealthier, whiter, and healthier neighborhoods. As has now been widely recognized, CEQA is the most formidable legal obstacle to restoring an adequate housing supply to California.66 This third installment in our In the Name of the Environment series again affirms the ongoing pattern of CEQA lawsuits filed against environmental benign and environmentally beneficial housing, renewable energy, and climate resilient infrastructure projects. We first recap the 2023 Study findings, as part of this ongoing pattern, in Part I. II.CEQA V.HOUSING In our preview of Anti-Housing CEQA Lawsuits filed in 2020, we tabulated all approved housing units that were challenged in CEQA lawsuits: nearly 48,000 individual housing units were challenged, which, in turn, is nearly half of all of the housing produced statewide in 2020.67 An even more startling anti-housing CEQA lawsuit statistic that emerged from a review of all three years in our dataset are lawsuits targeting regional and local agency plans to allow more housing; both the amount of housing needed, and the timing and content of these agency plans, are prescribed by state housing laws. For example, in a 2008 climate bill (SB 375), the regional agencies responsible for managing transportation improvements were charged with developing “Sustainable Communities Strategies” (“SCS”) for coordinating land use and transportation, 64 See Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 10, 12– 15; see also Hernandez, In the Name of the Environment II: 2013-2015, supra note 1, at 29–34. 65 See id. at 26 fig.1. Public services and infrastructure account for 15% of CEQA lawsuits, agency plan/regulation accounts for 19%, and water accounts for 3%. Id. These three categories total 37% of all CEQA lawsuits. Id. Only some of these three categories allow for new housing, totaling about 27% of this 37%. Id. Housing challenges were 29%. Id. 66 See Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 36–37. 67 JENNIFER HERNANDEZ,ANTI-HOUSING CEQA LAWSUITSFILED IN 2020 CHALLENGE NEARLY 50% OF CALIFORNIA’S 100,000 ANNUAL HOUSING PRODUCTION 1 (2022), http://centerforjobs.org/wp-content/uploads/Full-CEQA-Guest-Report.pdf [http://perma.cc/ W7CR-ES44]. 76 Chapman Law Review [Vol. 26:1 while providing for planned residential and economic growth, all while achieving the state’s aggressive climate change and GHG reduction targets.68 Notoriously NIMBY advocates targeted the 9- county Bay Area SCS, which accommodated 441,176 new housing units.69 A separate group targeted the Sacramento SCS in a CEQA lawsuit; that SCS included 133,512 new housing units.70 Using CEQA to target climate-friendly new housing is a solid example of how CEQA is no longer in alignment with current state environmental priorities. Cities and counties are also required to adopt “housing elements” in their General Plans, and make other conforming General Plan changes, to accommodate the housing assigned to that jurisdiction under state housing laws.71 This 2019-2021 study tabulates these anti-housing lawsuits targeting state-mandated General Plan Housing Element updates, which ranged from the massive (City of Los Angeles, assigned 456,643 housing units), to the miniscule (anti-housing opponents in Del Rey Oaks in Monterey County objected to adding 86 new housing units). These lawsuits challenged housing in mid-size cities (Moreno Valley, 11,627 units), and in rural and mountain counties where housing demand surged with COVID refugees from high-cost tiny apartments in San Francisco, such as Calaveras (1,096 units), Placer (7,854 units), and El Dorado (5,353 units). Anti-housing CEQA lawsuits challenging just two regional SCS climate plans, and six county and city general plans collectively sought to block 1,079,347 new housing units—and nearly a third of Governor Newsom’s inaugural proclamation of a 3.5 million housing shortfall.72 To put this in perspective, it is important to recognize that “housing delayed is housing denied”73 for those unable to find 68 See Sustainable Communities & Climate Protection Program, CAL.AIR RES.BD., http://ww2.arb.ca.gov/our-work/programs/sustainable-communities-climate-protection- program/about [http://perma.cc/&C9Z-V3AN]. 69 Yerba Buena Neighborhood Consortium, L.L.C. v. Metro. Transp. Comm’n et al., CPF-21-517627 (S.F. Super. Ct. Nov. 22, 2021). 70 California Clean Energy Committee v. Sacramento Area Council of Governments, No. 2019-80003278 (Cal. Super. Ct. Dec. 10, 2019). 71 See What is the Housing Element of the General Plan, CITY OF L.A., http://planning.lacity.org/blog/what-housing-element-general-plan [http://perma.cc/F26V- AS6G] (last visited Mar. 30, 2023). 72 See Newsom, supra note 18. 73 YIMBY Riverside, FACEBOOK (Sept. 20, 2021), http://www.facebook.com/YIMBY Riverside/posts/3086828581639163/ [http://perma.cc/E4UG-8UGM]; Brian Hodges, Housing Delayed is Housing Denied, OC REG. (Sept. 17, 2021), http://www.ocregister.com/2021/ 09/17/housing-delayed-is-housing-denied/ [http://perma.cc/7J3E-438L]. 2022] In the Name of the Environment Part III 77 housing they can afford for themselves and their families, and that meets their household’s needs for good schools, accessible jobs, and homeownership. California’s failure to build about three million new homes over the past decades has caused the state to have the highest poverty rate in the nation (inclusive of housing costs), according to the U.S. Census Bureau.74 The housing crisis inflicts the most direct harm on younger Californians, and communities of color, who struggle to pay routine monthly costs even with median and above-median incomes.75 Even older homeowners experience the housing crisis, as children and grandchildren move to states with more balanced housing markets. Essential workers like teachers, healthcare, construction, and retail workers depart for states that still offer attainable homeownership for middle-income households.76 The housing crisis has also infected every segment of the California economy, with high housing costs cited as the leading reason why hundreds of thousands of people (net of in-migration) have moved out of California in recent years—a historic reversal of the state’s longtime population growth pattern.77 Our comprehensive three-year evaluation reveals that tabulating actual approved housing units severely undercounts the magnitude of anti-housing CEQA lawsuits. Of the 512 CEQA lawsuits filed during the study period, Figure 1 shows that 198 challenged housing. Of these, 164 challenged housing in cities or on University of California campuses. Only 34 challenged housing on unincorporated county lands outside city boundaries; these 74 Morgan Keith, California has the Highest Poverty Level of all States in the US, According to US Census Bureau Data, BUS.INSIDER (Sept. 14, 2021), http://www.businessinsider.com/california-has-highest-poverty-level-in-the-us-census- bureau-2021-9 [http://perma.cc/6T7M-BHKX]. 75 The Real Cost Measure in California 2021, UNITED WAYS OF CAL., http://www.unitedwaysca.org/the-real-cost-measure-in-california-2021 [http://perma.cc/MV8W-7Z5S] (last visited Apr. 15, 2023) (explaining that “[h]ouseholds of all races struggle, but is highest for Latino and Black Families” and for those with less education, and households led by single mothers). 76 See, e.g., ‘Not the Golden State Anymore’: Middle- and Low-Income People Leaving California, CALMATTERS, http://calmatters.org/california-divide/2020/01/not-the-golden- state-anymore-middle-and-low-income-people-leaving-california/ [http://perma.cc/R5U8- BHAB] (last updated May 19, 2020); Who’s Leaving California—and Who’s Moving In, PUB. POL’Y INST. OF CAL., http://www.ppic.org/blog/whos-leaving-california-and-whos-moving- in/?utm_source=rss&utm_medium=rss&utm_campaign=whos-leaving-california-and- whos-moving-in?utm_source=ppic&utm_medium=email&utm_campaign=blog_subscriber [http://perma.cc/2MVP-QKH4]. 77 See Sam Khater & Kristine Yao, In Pursuit of Affordable Housing: The Migration of Homebuyers Within the U.S.–Before and After the Pandemic, FREDDIE MAC (June 22, 2022), http://www.freddiemac.com/research/insight/20220622-pursuit-affordable-housing- migration-homebuyers-within [http://perma.cc/FUR4-F53D]. 78 Chapman Law Review [Vol. 26:1 county projects include multi-family housing projects located in higher density unincorporated county neighborhoods (including neighborhoods interspersed between incorporated cities which are served by public transit). FIGURE 1: LOCATIONS TARGETED IN 198 ANTI-HOUSING CEQA LAWSUITS Q Cities (74%) College Campuses (9%) Unincorporated County Land (17%) FIGURE 2: 198 ANTI-HOUSING CEQA LAWSUITS Agency Plans/Regs (21%) Homeless (3%) Master Plan Community (6%) Multi-Family (31%) Neighborhood Community (16%) Senior Housing (2%) Single Family Home/ADU (8%) Student Housing (9%) Townhomes/Small Subdivisions (4%) 2022] In the Name of the Environment Part III 79 Figure 2 includes all categories of housing approvals challenged under CEQA, including student dormitories, residential facilities restricted to seniors, housing for those experiencing homelessness, income-restricted housing affordable to low and very low-income households, and housing for everyone else. It also includes regional and local agency housing approvals mandated by state laws, notably: x State climate law78 requiring regions to adopt Sustainable Communities Strategies to reduce GHG contributing to global climate change; x Regional Housing Needs Allocation (“RHNA”)79 laws requiring regions, cities, and counties to adopt land use plans and zoning ordinances to accommodate a state- assigned allocation of new housing units every eight years; and x Affirmatively Furthering Fair Housing (“AFFH”),80 requiring that new housing be dispersed throughout a community, including in wealthier neighborhoods that have traditionally been regulated to allow only more costly single-family homes. A. CEQA v. Apartments Figure 2 shows that the top target of all CEQA lawsuits filed against housing during the study period are multi-family apartment projects, and Figure 3 shows that anti-housing CEQA lawsuits are the largest category of all lawsuits filed under CEQA. This apartment category includes all housing projects that are restricted to low-income residents, as well as “mixed income” apartments that reserve a percentage of units for lower income households, and “mixed use” projects in urban markets that may include retail or office space on the ground floor. All of these challenged apartment projects are located within urbanized neighborhoods of cities and almost all displace an existing use like a parking lot or single-story commercial or retail building. 78 S. 375, 2008 Leg., Reg. Sess. (Cal. 2008). 79 See California Department of Housing and Community Development Approves Bay Area’s RHNA, ASS’N OF BAY AREA GOV’TS (Jan. 27, 2022), http://abag.ca.gov/our- work/housing/rhna-regional-housing-needs-allocation [http://perma.cc/X69W-VA8R]. 80 See Affirmatively Furthering Fair Housing, CAL.DEP’T OF HOUS.&CMTY.DEV. (April 2021), http://www.hcd.ca.gov/community-development/affh/docs/ affh_document_final_4-27-2021.pdf [http://perma.cc/8UQM-KAB3]. 80 Chapman Law Review [Vol. 26:1 As we showed in our 2013-2015 Study,81 which dove deeply into CEQA lawsuits where most Californians live (the Los Angeles region), most (78%) of these challenged multi-family projects were located in wealthier, Whiter neighborhoods, and many (70%) are proximate to existing or planned public transit (bus or train/BART/metro stops). As explained in greater detail in Green Jim Crow,82 land costs, agency-imposed fees, and exactions are generally higher in these urbanized areas. High housing costs are inherent with high cost urban land in desirable locations that displaces existing uses.83 The building costs to construct “mid-rise” multi-family projects of up to six stories and “high-rise” apartments over six stories are three to seven times higher due to far more costly structural and operational components, such as elevators and utility systems under various building, earthquake safety, emergency, accessibility, energy, and other mandated components.84 These transit rich neighborhoods are also located in cities with outsized job centers such as downtowns and are more likely to impose higher housing fees and more costly exactions.85 Apartment projects tend to be most economically feasible in higher wage, higher amenity (e.g., restaurants and other retail services), and neighborhoods with high housing prices and severe housing supply shortfalls for both low income and market rate residents. These apartment projects are also more likely to be in wealthier communities with incumbent homeowners or businesses with an interest in protecting “their” environmental status quo, and the resources to file CEQA lawsuits. Due to high insurance rates, and demanding mortgage rules, almost all multi-family projects are built as rental apartments instead of for-sale condominiums.86 Even “affordable” apartments built for low income families in these locations, with this multi-family building typology, cost in excess of $1 million each to produce.87 Monthly rental costs for non-subsidized households top $4,000, often without parking, and are “affordable” using the standard benchmark of spending no 81 See generally Hernandez, In the Name of the Environment II: 2013-2015, supra note 1. 82 See Hernandez, Green Jim Crow supra note 12. 83 Id. 84 See id. at n.14. 85 See Keith, supra note 74. 86 Michael Neal & Laurie Goodman, The Housing Market Needs More Condos. Why Are So Few Being Built?, URBAN INST. (Jan. 31, 2022), http://www.urban.org/urban-wire/housing- market-needs-more-condos-why-are-so-few-being-built [http://perma.cc/9J78-Y3CV]. 87 Liam Dillon & Ben Poston, Affordable Housing in California Now Routinely Tops $1 Million Per Apartment to Build, L.A. TIMES (June 20, 2022), http://www.latimes.com/homeless-housing/story/2022-06-20/california-affordable-housing- cost-1-million-apartment [http://perma.cc/NKJ7-T6KP]. 2022] In the Name of the Environment Part III 81 more than thirty percent of gross income on housing only to households earning in excess of $150,000. These housing costs are unaffordable to even the state’s wealthiest median income county (Santa Clara), and provides no wealth-creation pathway commensurate with homeownership for working families. Simply, the state’s housing policy preferences are not affordable, even for the state’s middle-class residents, like teachers, nurses, firefighters, and welders. State housing policies favor the wealthy, and taxpayer funded high-cost housing for the affordable lottery winners among the poor. B. CEQA v. Agency Plans and Ordinances Allowing More Housing The second most frequent target of anti-housing lawsuits is land use and zoning code approvals that make it easier to build more housing, including apartments, as required by state laws like SB 375, RHNA, and AFFH. Under SB 375, two of the state’s regional climate plans were targeted by CEQA lawsuits: these plans collectively allowed the two challenged regions (Bay Area and Sacramento) to accommodate a minimum of 594,688 new housing units as required by state law.88 Cities and counties are also required to update their local land use plans and zoning codes to accommodate RHNA-mandated housing allocations.89 The General Plan Housing Element approved by the City of Los Angeles, which was required to accommodate 456,643 housing units, was also targeted by a CEQA lawsuits. More than one million planned housing units were challenged in just eight of the 514 CEQA lawsuits filed during the study period. Just three CEQA lawsuits launched against agencies during our study period challenge more than one million new homes required to be built under state laws other than CEQA. Typical CEQA practice requires a housing project applicant to fund all compliance and defense costs, which increase housing costs for soon-to-be residents. Housing lawsuits filed against agency approvals of plans and ordinances that allow more housing are paid for by 88 S. 375, 2008 Leg., Reg. Sess. (Cal. 2008). 89 For a primer on California’s regional housing needs assessment, affirmatively furthering fair housing civil rights law, and local housing element update laws, from YIMBY Law, see RHNA & Housing Elements, Explained, YIMBY ACTION, http://static1.squarespace.com/static/5fcea2bac5ab4f3059545081/t/603808983de3d440cb746a 3f/1614284956326/RHNA-Housing-Elements-Explainer.pdf [http://perma.cc/GT4C-WALE]. 82 Chapman Law Review [Vol. 26:1 taxpayers, from the same pool of funding that pays for city parks, libraries, personnel, and other expenses.90 We tabulated for this housing category only agency-approved plans and ordinances that allowed more housing units to be constructed. In Part III (CEQA v. Everything Else), we included challenges to agency approvals of plans, regulations, and ordinances that do not allow new housing–and, in some cases, actually make housing economically infeasible, even when the housing at issue fully complies with local General Plans, zoning, and regional SCS climate plans. For example, one lawsuit sought to force San Diego County to use a methodology for demanding CEQA mitigation of “vehicles miles travelled” (“VMT”), the newest category of CEQA impact included in the CEQA Guidelines in the closing hours of the Brown Administration in 2017.91 VMT is measured only for miles driven by people in cars, mini-vans, andpickup trucks. Under CEQA, a housing project’s “VMT impact” is calculated by estimating how many miles these vehicles will be driven by construction workers, and then by future residents, guests, delivery and repair services, etc., over a thirty year home occupancy period. CEQA’s new VMT impact is separate from air pollution and greenhouse gas emission, which have long been estimated based on VMT. Even an all-electric car has the same VMT impact as a smog-belching 1970 Cadillac.92 Although 90 Cal. PUB.RES.CODE § 21089(a), (c) (Deering 2022) (stating public agencies may charge applicants to prepare CEQA documents); Att’y Gen. Bill Lockyer, Cal. Dep’t Just., Opinion Letter on Municipal Authority to Demand Indemnification from Third Party Lawsuits from CEQA Applicants (Feb. 4, 2002)(confirming municipalities may demand indemnification from third party CEQA lawsuits from applicants). But see Bryan Wenter, Game Changer: Public Agency Cannot Mandate Payment of Attorney Fees Under Indemnity Agreement Without Specific Statutory Authority, JDSUPRA (Mar. 9, 2021), http://www.jdsupra.com/legalnews/game-changer-public-agency-cannot-4713368/ [http://perma.cc/5CV5-Q9GB] (last visited Mar. 28, 2023); see also Stephen Kostka & Michael Zischke, PRACTICE UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT § 2.9 (2d ed. 2022) (noting that the Council on California Competitiveness, California’s Jobs and Future concluded that “[t]he higher cost of some EIRs often reflects the likelihood of litigation rather than the degree of environmental damage associated with a particular project”). 91 Technical Advisory on Evaluating Transportation Impacts in CEQA, GOVERNOR’S OFF. OF PLAN.&RSCH. 1 (Dec. 2018), http://opr.ca.gov/docs/20190122- 743_Technical_Advisory.pdf [http://perma.cc/W2CU-GY4V]; Proposed Updates to the CEQA Guidelines, GOVERNOR’S OFF. OF PLAN.&RSCH. (Nov. 2017), http://opr.ca.gov/docs/20171127_Comprehensive_CEQA_Guidelines_Package_Nov_2017. pdf [http://perma.cc/B8RT-9CLT]; Berkeley Hillside Pres. v. City of Berkeley, 343 P.3d 834 (Cal. 2015). 92 See Technical Advisory on Evaluating Transportation Impacts in CEQA, GOVERNOR’S OFF. OF PLAN.&RSCH. 4 (Dec. 2018), http://opr.ca.gov/docs/20190122- 743_Technical_Advisory.pdf [http://perma.cc/W2CU-GY4V]. 2022] In the Name of the Environment Part III 83 adding VMT to CEQA was originally justified as a GHG reduction mandate to address climate change, the correlation between VMT and GHG was substantially eroded following California’s mandated phase-out of internal combustion vehicles in favor of electric vehicle (“EV”) technology, along with its mandated transition to a 100% renewable energy grid. VMT’s regulatory promoters at the OPR pivoted to assertions that reducing vehicular use would improve water quality based on avoided use of vehicular brake pads, and reduce conventional air pollutants causing smog (although EPA had concluded that tailpipe emissions of smog had been reduced ninety-nine percent as of 2016).93 VMT promoters also extolled the health benefits— ”wellness”—of people living in high density, walkable neighborhoods near existing job centers, and asserted that achieving these health outcomes through newly-defined impacts was withinCEQA’s public health protection scope.94 In practice, CEQA’s VMT focus converted to imposing higher CEQA mitigation costs—to mitigate “VMT impacts”—on new housing built outside “transit priority areas” (“TPAs”).95 A TPA is defined as the half mile radius around high frequency bus stops, which in turn must have a minimum of four separate buses providing service for each weekday morning and afternoon peak commute as well as minimum evening and weekend service, or are near commuter rail stations or ferry terminals.96 Since these are the suburban scale and master planned community neighborhoods where most housing—especially for homes that middle income Californians can afford to buy—are located, and continue to be 93 Id.;see also California Air Resources Board 2022 Scoping Plan, Appendix D Local Actions section 3.1 and 3.2, CAL.AIR RES.BD. (May 2022), http://ww2.arb.ca.gov/sites/default/files/2022-05/2022-draft-sp-appendix-d-local- actions_0.pdf [http://perma.cc/G3HR-8YX4]; Louise Wells Bedsworth, Climate Change Challenges Vehicle Emissions and Public Health in California, PUB.POL’Y INST.OF CAL., http://www.ppic.org/wp-content/uploads/content/pubs/report/R_310LBR.pdf [http://perma.cc/MGV8-MC9R] (last visited Mar. 25, 2023). 94 See Technical Advisory on Evaluating Transportation Impacts in CEQA, GOVERNOR’S OFF. OF PLAN.&RSCH. 4 (Dec. 2018), http://opr.ca.gov/docs/20190122- 743_Technical_Advisory.pdf [http://perma.cc/W2CU-GY4V]; see also California Air Resources Board 2022 Scoping Plan, Appendix D Local Actions section 3.1 and 3.2, CAL.AIR RES.BD. (May 2022), http://ww2.arb.ca.gov/sites/default/files/2022-05/2022-draft-sp- appendix-d-local-actions_0.pdf [http://perma.cc/G3HR-8YX4]; Louise Wells Bedsworth, Climate Change Challenges Vehicle Emissions and Public Health in California, PUB.POL’Y INST. OF CAL., http://www.ppic.org/wp-content/uploads/content/pubs/report/R_310LBR.pdf [http://perma.cc/MGV8-MC9R] (last visited Mar. 25, 2023). 95 CAL.PUB.RES.CODE § 21099 (West 2023). 96 Id. 84 Chapman Law Review [Vol. 26:1 built at attainable prices.97 TPAs were defined as neighborhoods located within a half mile of a metro or rail station, commuter ferry, or high frequency bus routes that met minimum standards of one bus every fifteen minutes during morning and evening peak commute hours (eight drivers and four buses for each routes), with further minimum service thresholds for weekends and evenings.98 Public transit generally, and TPAs more specifically, occur on a minute fraction of California’s one hundred million-acre footprint.99 A report prepared for the Southern California Association of Governments (“SCAG”) region illustrates how rare TPAs are in California.100 The SCAG region includes all Southern California counties and cities except those in San Diego county—transit accounts for only 5% of total trips in the region.101 However, both transit service and actual transit utilization occur in just a fraction of the region: 82% of these transit trips occurred in Los Angeles County, 8% in Orange County, and the remaining 10% distributed between Riverside, San Bernadino, Inyo, and Ventura counties.102 Most of the region’s transit commuters live on only 1-3% of SCAG land, located overwhelmingly in Los Angeles county, and commuter transit use correlates to higher quality reliable transit service provided by TPAs.103 Los Angeles county is approximately 4,750 square miles—3% of the county is 1,410 square miles.104 The SCAG region is more than 38,000 square miles – transit ridership is either unavailable, or infrequent, for the vast majority of the region.105 A spacial map of TPAs in the state’s next most populous region, the San Francisco Bay Area, further illustrates the mismatch between the amount and distribution of land in TPAs in this nine-county 6,900 square mile region: 97 See CEQA Transportation Impacts (SB 743), GOVERNOR’S OFF. OF PLAN.&RSCH., http://opr.ca.gov/ceqa/sb-743/ [http://perma.cc/2MCL-NFNB]. 98 See id. 99 See Hernandez, Green Jim Crow,supra note 12. 100 MICHAEL MANVILLE ET AL., FALLING TRANSIT RIDERSHIP:CALIFORNIA AND SOUTHERN CALIFORNIA 17, 21 (2018), http://scag.ca.gov/sites/main/files/file- attachments/its_scag_transit_ridership.pdf [http://perma.cc/U3V3-5XZZ]. 101 Id. 102 Id. 103 Id. 104 Id. 105 Id. 2022] In the Name of the Environment Part III 85 MAP OF TRANSIT PRIORITY AREAS SAN FRANCISCO BAY AREA (2021)106 Only San Francisco, a forty-nine-square mile peninsula, is almost entirely a TPA. The region’s other TPAs largely follow corridors on both sides of the cities fronting San Francisco Bay, and add mile-wide donuts in the downtowns of some larger cities and towns. Encouraging higher density housing in TPA—for those who can afford $3,500 monthly rents or condos over $1 million— may reduce VMT, but so does remote and hybrid work facilitated by high quality broadband as we learned during COVID. Using CEQA to add housing costs—VMT mitigation costs—in the vast 106 Transit Priority Areas (2021) (illustration), in BAY AREA METRO. TRANSP. COMM’N, http://opendata.mtc.ca.gov/datasets/370de9dc4d65402d992a769bf6ac8ef5_1/explore?locati on=37.773000%2C-122.191730%2C9.74 (last visited Apr. 15, 2023). 86 Chapman Law Review [Vol. 26:1 majority of the region that is located outside the TPA circles and lines just adds housing cost burdens to the region’s notoriously costly housing market, where high housing prices have driven more than 100,000 daily commuters outside the region into the adjacent San Joaquin county.107 Only 1.5% of San Joaquin county residents take public transit to work or school.108 Driving housing costs further higher in the the non-TPA Bay Area to “mitigate” VMT impacts makes it even less likely that a Bay Area worker can afford a home near work. At a statewide scale, VMT is even more punitive: California is about 163,695 square miles.109 As shown by the SCAG study, TPAs are scarce to non-existent in counties and cities outside already- urbanized, higher density locations. Under the OPR VMT Guidance, which was new housing projects in cities are currently required to have VMT that is fifteen percent lower VMT than the “average” VMT for the city. For housing and other projects subject to CEQA review and discretionary approvals in the unincorporated areas of counties outside city boundaries, OPR has directed that VMT should be fifteen percent lower than the combined VMT average of all cities plus the unincorporated county.110 This methodology, which has been most heavily litigated in San Diego county, means that even higher density housing in the county cannot meet this standard because so much of the population lives in the cities along the coast where driving distances are shorter and, in some locations, TPAs do exist and provide meaningful transit services. The fallacy of the metric, which was invented by a consulting firm that has subsequently earned many millions of dollars selling its VMT analytical services to cities and counties statewide, is that a new apartment or home built in an existing neighborhood presents occupants with the exact same suite of transportation needs and solutions as their new neighbors in the existing housing next door. The class- and race-based discrimination inherent in this new CEQA metric is that high wealth neighborhoods, with better schools and parks, have little or no public transit – and no TPAs. State housing laws, like Affirmatively Furthering Fair 107 Commute, SAN JOAQUIN COUNCIL OF GOVERNMENTS CALIFORNIA, http://www.sjcog.org/230/Commute [http://perma.cc/Q6PB-9SEK] (last visited Apr. 15, 2023). 108 Id. 109 See How Big is California, SpareFoot, http://www.sparefoot.com/moving/moving-to- los-angeles-ca/how-big-is-california/ [http://perma.cc/4BFL-PDMX]. 110 See David Taub, State Law Could Push Middle Class Out of Housing, GV WIRE (Mar. 5, 2020), http://gvwire.com/2020/03/05/state-law-could-push-middle-class-out-of- housing/ [http://perma.cc/3HSB-WSA8]. 2022] In the Name of the Environment Part III 87 Housing, mandate distribution of new housing throughout the community, including, for example, adding apartments and affordable housing in “high resource areas.”111 This is based on decades of civil rights studies demonstrating that poor and minority residents of high opportunity neighborhoods achieve higher educational attainment and income levels than those who grew up in poor neighborhoods with poor schools and fewer parks and other amenities.112 San Diego County, which is required to accommodate 6,700 new housing units,113 was sued under CEQA to require strict adherence to non-regulatory state “guidance” on how VMT should be addressed under CEQA–one of the lawsuits included in this Study. The County Board of Supervisors, the majority of whom are aligned with open space and urban limit line advocates, opposed to new development in the County, directed staff to fully enforce the state VMT guidance. The result: for the three quarters of 2022, the County approved about 60 housing units per month. Once the VMT CEQA mitigation regime became effective in September 2022, permitting dropped to 8 units per month. In testimony provided on March 1, 2023, County staff reported that VMT mitigation fees, which can cost $50,000 or more per apartment, are likely making much of the housing outside of TPAs economically infeasible.114 The imposition of VMT as a CEQA impact effectively negates much of the County’s state-mandated and approved Housing Element, which is required to equitably distribute housing across the County (including within the County’s high opportunity but high VMT neighborhoods), as well as provide for housing solutions affordable to the region’s residents, including aspiring 111 See Affirmatively Furthering Fair Housing, CAL.DEP’T HOUS.&CMTY.DEV. 15, http://www.hcd.ca.gov/community-development/affh/docs/affh_document_final_4-27- 2021.pdf [http://perma.cc/G9G7-T32B] (last visited Mar. 26, 2023). 112 See, e.g.,How do Neighborhoods Affect Economic Opportunity?, EQUAL. OPPORTUNITY PROJECT, http://www.equality-of-opportunity.org/neighborhoods/ [http://perma.cc/5Z4M-CFRM] (last visited Mar. 26, 2023) (“Studying the experiences of seven million children who moved across areas while growing up, we document that every year of exposure to a better environment improves a child’s chances of success.”). 113 See Housing Blueprint,SAN DIEGO CNTY., http://engage.sandiegocounty.gov/ housing-blueprint/widgets/59719/faqs#question9590 [http://perma.cc/PH2A-WMN6] (last visited Mar. 26, 2023); Jeremy Epstein, Changing Transit Ridership and Service During the COVID-19 Pandemic, UCLA (Oct. 31, 2022), http://www.its.ucla.edu/publication/changing-transit-ridership-and-service-during-the- covid-19-pandemic/ [http://perma.cc/G2UA-PKG2]. 114 Email from Matt Adams, BIA of San Diego to San Diego Board of Supervisors (Mar. 1, 2023) (on file with author). 88 Chapman Law Review [Vol. 26:1 homeowners seeking to close the racial and generational wealth gap created by California’s anti-homeownership/housing policies. Bus ridership was crashing in Southern California (and the rest of the nation) even before COVID.115 Since COVID, and with the advent of remote and hybrid work patterns, bus ridership in much of the state has yet to recover to even sixty percent of its pre- COVID levels.116 As noted above, CEQA VMT mitigation costs such as $50,000 per apartment (and more for the cost of a home) even though future residents will use the same transportation options as their next-door neighbors is particularly punitive and disproportionate as a climate strategy, particularly since new homes must be built to stringent Green Building Code compliance standards and for example will use far less water and energy than the existing homes117 occupied by the legacy residents of these “nice” neighborhoods.118 VMT is one of the environmental/climate redlining metrics discussed in Green Jim Crow.119 It is also an example of an anti- housing CEQA metric embraced by environmental agency staff and anti-housing NIMBYs and advocates to continue to structurally embed in CEQA anti-housing mandates that undermine housing and civil rights laws, like Affirmatively Furthering Fair Housing. C. CEQA v. Homeownership for Middle Income Families In third place are neighborhood community housing projects, which generally include a mix of single family homes as well as townhomes or condominiums, “accessory dwelling units” (“ADUs”), either in the form of backyard cottages or granny flats located within the main home structure, and small project subdivisions of fifty or fewer homes. These neighborhood-scale community housing projects also include, or are proximate to, parks and retailers, and may include new elementary schools, fire stations, or other public services. The largest of this home type is a “Master Planned Community” (“MPC”), which is planned at a larger scale and typically includes several thousand housing units in different 115 See supra, MANVILLE ET AL.,supra note 101; see also SANDAG Infobits 2019 State of the Commute Report, SAN DIEGO ASS’N GOV’TS (Apr. 2020), http://www.sandag.org/- /media/SANDAG/Documents/PDF/data-and-research/applied-research-and-performance- monitoring/performance-monitoring/infobits-2019-state-of-the-commute-report-2020-04- 01.pdf [http://perma.cc/WS83-JT9X]. 116 See Epstein, supra note 113. 117 CAL.CODE REGS. tit. 24, part 11 (2022). 118 See Adams, supra note 114. 119 See Hernandez, Green Jim Crow,supra note 12. 2022] In the Name of the Environment Part III 89 housing types at different levels of affordability, as well as new infrastructure,120 and—for purposes of our studies—is large enough to include a new high school. These are all projects that typically primarily include for-sale homes of varying sizes — given the importance of homeownership as part of the California Dream of working families — and help produce sufficient new homes to close the racial wealth gap created by more than a century of racial redlining that persisted into the 2008 recession with predatory loans and foreclosures121 that disproportionately targeted homeowners of color. As compiled by affordable housing producer Habitat for Humanity, homeownership has long been recognized as the nation’s most successful pathway to build inter-generational wealth, as well as housing stability and other civic benefits such as higher educational attainment, higher rates of community volunteer activities and voter participation, etc.122 The wealth gap between renters and homeowners is staggering: a September 2020 report from the Federal Reserve found that, on average, a homeowner had forty times more wealth than a renter.123 A legacy of racial discrimination, which persisted into and beyond the 2008 Great Recession’s foreclosure crisis, has resulted in far lower homeownership rates for California’s Black and Latino families – and in 2022, fewer than one in five Black or Latino families in California could afford to own a median priced home.124 California environmental policies favor high density urban rental apartments that are unaffordable, and strongly disfavor building new homes on lower cost land, in lower cost locations, with lower cost structures that are actually affordable for either purchase or rent by working families. California’s climate-based policies double down on these NIMBY environmental policies, expressly acknowledging the disproportionately higher economic burdens 120 This infrastructure may include: public services, like new fire stations and schools; job-creating commercial, retail, and institutional uses; renewable energy; and other sustainability features. 121 See Attorney General Brown Announces Landmark $8.68 Billion Settlement with Countrywide, OFF.ATT’Y GEN. (Oct. 6, 2008), http://oag.ca.gov/news/press- releases/attorney-general-brown-announces-landmark-868-billion-settlement-countrywide [http://perma.cc/S3WD-9QRA]. 122 See Research Series: Outcomes Associated with Homeownership, HABITAT FOR HUMAN., http://www.habitat.org/our-work/impact/research-series-outcomes-associated- with-homeownership [http://perma.cc/D496-A87R] (last visited Mar. 28, 2023). 123 See Brett Holzhauer, Here’s the Average Net Worth of Homeowners and Renters, CNBC (Feb. 27, 2023), http://www.cnbc.com/select/average-net-worth-homeowners-renters/ [http://perma.cc/CZF7-UMED]. 124 Alejandro Lazo, More Black and Latino Californians Face Out-of-Reach Home Prices (Mar. 24, 2022), http://calmatters.org/california-divide/2022/03/california-home- prices-black-latino-households/ [http://perma.cc/PP94-PNQM]. 90 Chapman Law Review [Vol. 26:1 placed on median and lower wage (more likely Latino and Black) households while favoring wealthier (Whiter and Asian) households.125 Neither Californians nor state elected leaders have voted to end attainable homeownership or kill the California Dream for anyone but the wealthy, but state leaders and bureaucrats have enthusiastically embraced or enabled policies that have caused exactly this outcome for decades, including most recently by voting to approve the CARB climate plan’s126 $5.3 billion wealth transfer scheme to increase climate cost for households making $100,000 or less while reducing $5.3 million in climate costs from higher income households.127 California has the second worst homeownership rate in the nation,128 morphing the California Dream for a fading Baby Boomer legacy generation of median income households to lifelong renters for all but their wealthiest successors. The underlying policy debate is an epithet: “Sprawl.” Californians despise “sprawl” as causing traffic gridlock, but disagree as to what sprawl actually is and where new housing should actually be located.129 On one end of the spectrum, because state housing and environmental laws mandate that new development be “green,” require dispersal of housing throughout communities under Affirmatively Further Fair Housing, and have not rescinded the civil rights and equity laws and regulations to make homeownership attainable to communities of color and middle class families of all colors, local governments and housing applicants continue to plan for and approve this housing and families continue to save for, and buy, their first new home.130 On the other end of the spectrum, environmentalists—long committed to blocking development even on proximate urban lands and 125 CAL.AIR RES.BD., 2022 SCOPING PLAN FOR ACHIEVING CARBON NEUTRALITY 125– 26 (2022). 126 CARB Approves Unprecedented Climate Action Plan to Shift World’s 4th Largest Economy from Fossil Fuels to Clean and Renewable Energy,CAL.AIR RES.BD. (Dec. 15, 2022), http://ww2.arb.ca.gov/news/carb-approves-unprecedented-climate-action-plan- shift-worlds-4th-largest-economy-fossil-fuels#:~:text=The%20California%20Air%20 Resources%20Board,achieves%20carbon%20neutrality%20in%202045 [http://perma.cc/ 6PBK-6QUN]. 127 See e.g., Lazo, supra note 124. 128 Homeownership Trends in California, PUB.POL’Y.INST. OF CAL. (June 14, 2022), http://www.ppic.org/blog/homeownership-trends-in-california/ [http://perma.cc/5BVF-UP5X]. 129 See Wendell Cox, California’s Dense Suburbs and Urbanization, NEWGEOGRAPHY (Mar. 14, 2018), http://www.newgeography.com/content/005908-californias-dense-suburbs- and-urbanization [http://perma.cc/2FQF-PSPD]. 130 See, e.g., 2022 STATE OF HISPANIC HOMEOWNERSHIP REPORT, http://nahrep.org/downloads/2022-state-of-hispanic-homeownership-report.pdf [http://perma.cc/LT2G-DQKY]., 2022] In the Name of the Environment Part III 91 phasing out automobile use (even electric automobiles)—oppose single family and other lower density housing even when long- planned in existing cities needing workforce housing.131 At the most extreme end of this environmentalist spectrum are Malthusians who believe that California (and Earth) are at risk of reaching their holding capacity, and “de-growth” of California is necessary132 (fewer people overall, and no more housing growth except expensive, high density, small rental apartments in transit- dependent neighborhoods) to ward off climate change and the mass extinction of species.133 In fact “sprawl” is generally used to to refer to single family homes built in suburbs to satisfy consumer demand for “homes with more square footage and yard space” and avoid the “traffic, noise, crime, and other problems” of cities.”134 “Smart growth” emerged in opposition to “sprawl,” and promotes building new homes only by substantially increasing densities in existing cities and towns.135 Smart-growth-only advocates underestimated voter resistance to density, the much higher cost (and reduced homeownership opportunities) of an all-densification urban limit line regulatory regime, and the continued desire by people to have more living and outdoor space away from the noise and bustle of high density cities for at least some portion of their life (e.g., when raising children). In my view, neither sprawl nor smart growth have worked well: Baby Boomer battle lines that are decades old have resulted in massive housing shortages, obscene housing prices in the most “progressive” Green anti-housing political enclaves like San 131 See id. 132 See Brian Becker, Degrowth: An Environmental Ideology with Good Intentions, Bad Politics, LIBERATION SCH. (July 20, 2021), http://www.liberationschool.org/degrowth-a- politics-for-which-class/ [http://perma.cc/3MJG-UZCK]; see also Paige Curtis, Can we Address the Climate Crisis by “Degrowing”?, SIERRA CLUB (Dec. 29, 2022), http://www.sierraclub.org/sierra/can-we-address-climate-crisis-degrowing [http://perma.cc/ 3FEA-GSAB]; see also Stuart M. Flashman, Smart Growth vs. Wisely Planned Communities, stuflash, http://stuflash.com/smart-growth-vs-wisely-planned-communities/ [http://perma.cc/FXL5-2UW7] (last visited Apr. 16, 2023) (arguing against density increases that exceed the “carrying capacity” of a region; the author has served as a CEQA lawyer for those filing CEQA lawsuits to block housing and projects). 133 See, e.g.,Policy Priorities to Build Needed Housing and Reduce Urban Sprawl, ALL. FOR HOUS.&CLIMATE SOL., http://www.housingclimatealliance.org/policy-priorities [http://perma.cc/E7WR-TZGW]. 134 David B. Resknik, Urban Sprawl, Smart Growth, and Deliberate Democracy, 100 AM.J.PUB.HEALTH 1852, 1853 (2010). 135 See, e.g., Our History, SMART GROWTH AMERICA, http://smartgrowthamerica.org/about-us/our-history/ [http://perma.cc/T5F2-Z2YG] (last visited Apr. 16, 2023). 92 Chapman Law Review [Vol. 26:1 Francisco and Marin county, and fragile or dysfunctional transportation, water, and energy infrastructure notwithstanding California’s exceptionally high tax and fee burdens. Like many ‘Zero Sum” debates promoted by partisan special interests, neither “sprawl” nor “smart growth” can provide solutions for the fact that California’s population is about twice as large today as it was when CEQA was enacted in 1970.136 Harvard University’s Education Department published an influential study of solutions for affordable and sustainable housing in Mexico (“Harvard Study”), which first suggests strategies for increasing infill density but then goes on to explain that “even in metropolitan areas with successful records of infill development, infill as a percentage of total area growth remains a minor portion of total growth” and “[g]reenfield development, or development on previously undeveloped sites, must be an equally important aspect of city-building in the 21st century if urban areas are to properly and adequately house new generations of city- dwellers.”137 As summarized on the next table, with information from the Harvard Study, Sustainable Greenfield Development— often referred to in practice as Master Planned Communities— substantially differs from “sprawl.” TABLE 1: DIFFERENCES BETWEEN URBAN SPRAWL AND SUSTAINABLE GREENFIELD DEVELOPMENT138 Characteristics of Urban Sprawl Characteristics of Sustainable Greenfield Development Low residual density Higher overall residential density with a variety of housing types, not just single- family houses Unlimited outward extension of new development Outward extension of development is limited by numerous factors, including municipalities’ ability to provide infrastructure and services, open space preservation, and environmental protection considerations, etc. 136 California Population 1900-2022,MACROTRENDS, http://www.macrotrends.net/states/california/population [http://perma.cc/5VQH-FLEU] (last visited Apr. 16, 2023). 137 Part 2: Improving Greenfield Development, HARV. 94, http://research.gsd.harvard.edu/socialhousingmexico/files/2016/09/RP_Part2_090716_LP.p df [http://perma.cc/QHS7-SMYM] (last visited Apr. 16, 2023). 138 Id. at 95. 2022] In the Name of the Environment Part III 93 Spatial segregation of different types of land uses through regulations Land use types are mixed and integrated, with town centers, office parks, and other employment and commercial centers easily accessible from residential areas Leapfrog development (or development that leaps out onto new land, not connected to existing urban areas) Contiguous urban expansion No centralized ownership of land or planning of land development Land development happens in accordance to well-defined plans or in cooperation among landowners All transportation dominated by privately owned motor vehicles Infrastructure and development supportive of many modes of transportation are created, including bus, rapid transit, bicycles, and pedestrians Fragmentation of governance authority of land uses among many local governments Governance of land use is coordinated among all municipalities in a region Great variation in fiscal capacity of local governments Commercial development is concentrated in nodes or town centers, serviced by a multi-modal transport network, not just roads for automobiles Widespread commercial strip development along major roadways Affordable housing is provided through a combination of an increased supply of housing, a variety of housing types, government requirements (like inclusionary zoning) and government programs, among others Major reliance on filtering process to provide housing for low-income households. Filtering occurs when wealthier people move into new homes and low-income people move into the older and lower-quality houses left behind. My selection of this Harvard Study is intentional: the country lacks the wealth of California, and the study is designed to promote an equitable, as well as environmentally and financially sustainable, solution to an even more severe housing and poverty crisis. Mexico is getting wealthier,139 with job and income growth, 139 The World Bank in Mexico, THE WORLD BANK GRP., http://www.worldbank.org/en/country/mexico/overview#:~:text=The%20Mexican%20econo my%20grew%20by,GDP)%20pre%2Dpandemic%20levels [http://perma.cc/V745-D7J9] (last updated Apr. 4, 2023). 94 Chapman Law Review [Vol. 26:1 and advocates are seeking to use that wealth to promote a positive outcome for people—and the environment. In citing the Harvard Study, I hope to, at least in part, bypass the fractious and pessimistic stand-off between strident anti- single family home environmentalists, and equally strident anti- densification environmentalists, who have used tools like CEQA to elevate legal procedure and process over solutions to our housing, infrastructure, and climate challenges. This stand-off, and the labor movement’s willingness to tolerate this stand-off, even as it hurts middle income labor union households the most, have mostly “preserved” the increasingly imperfect status quo (unless you are already a wealthy donor who owns a home). The housing crisis would be much easier to solve (and the state would reduce its greenhouse gas emissions and save the planet) if only we had far fewer Californians. That is not a racially- just outcome—it just honors Boomer nostalgia for free-flowing roadways and climate catastrophists convinced that getting America’s lowest per-capita greenhouse gas emission state to “net zero” requires making the state unaffordable to all but its wealthiest residents (and their NGO and academic grantees). In the world of CEQA lawsuits, Californians are losing and the Malthusians are winning: favored housing is unaffordable and sued under CEQA, disfavored housing is affordable and sued under CEQA, California’s population is decreasing, and CEQA lawsuits to block even planned and approved housing that meet all of California’s stringent green standards are the favored tool to achieve the anti-housing policy objectives of both Malthusians and environmentalists. D. CEQA v. Students CEQA lawsuits to block student dormitories were a major new target in this Study, even as colleges and universities have recognized that the absence of proximate, affordable student housing is causing massive harms such as homelessness, anxiety, and high drop-out rates.140 Housing insecurity also causes greater 140 See U.S. DEPT.HOUS.&URB.DEV,INSIGHTS INTO HOUSING AND COMMUNITY DEVELOPMENTPOLICY 1 (2015); Michael Burke et al., How California is Responding to Dire Student Housing Shortage, EDSOURCE (Sept. 28, 2022), http://edsource.org/2022/how- california-is-responding-to-dire-student-housing-shortage/678616 [http://perma.cc/KFT9- 9Q4J]; see also Brief for The Two Hundred for Homeownership as Amici Curiae, Make UC a Good Neighbor v. The Regents of the University of California et al., Case No. A165451 2022] In the Name of the Environment Part III 95 harms to students of color, and students who are the first in their family to attend a four year college, just as they begin an educational journey that has in all past generations promised upward mobility and higher incomes.141 Rents that students pay to live in dormitories serve as a viable financing source to pay for the construction of new housing, allowing dorms to be built without triggering the need for tuition increases or budget cuts to other college programs. Because these dormitory projects are also generally required to pay higher wages to construction workers, similar to other public agency infrastructure projects, organized labor has not filed CEQA lawsuits against student dorms. A fierce and unapologetic constituency of literal NIMBYs campus neighbors has turned to CEQA: tens of thousands of new student beds are challenged in seventeen anti-dorm CEQA lawsuits filed during the Study Period. Although reporting on the outcome of these CEQA lawsuits is beyond the scope of these studies (typically because the final resolution of CEQA lawsuits is not known for three to five years), it is noteworthy that UC Berkeley was the target of more of these anti- student housing lawsuits than any other campus. In one of several different CEQA lawsuit decisions, UC Berkeley was ordered to admit three thousand fewer undergraduates, a trial court decision that the California Supreme Court declined to review just a few days before student admission letters were scheduled to be mailed.142 The Legislature instantly stepped in, decrying the concept that students were “pollution” or “anti-environment”–but the enacted “fix” Legislation was exceptionally narrow,143 and did nothing to block pending anti-university CEQA lawsuits. For the first time in CEQA’s fifty-three-year old history, an appellate court had determined that the “social noise” of future student occupants of future student dormitories was indeed an “environmental impact” requiring evaluation and “all feasible mitigation” under (Cal. Ct. App., Jan. 3, 2023), http://www.hklaw.com/- /media/files/insights/publications/2023/01/letterbriefucb1323.pdf. 141 See Maya Brennan et al., The Impacts of Affordable Housing on Education: A Research Summary, NAT’L HOUS.CONF. (Nov. 2014), http://nhc.org/wp- content/uploads/2017/03/The-Impacts-of-Affordable-Housing-on-Education-1.pdf [http://perma.cc/J5X4-56QD]. 142 Josh Moody, Berkley Must Cap Enrollment, California Supreme Court Says, INSIDE HIGHERED (Mar. 4, 2022), http://www.insidehighered.com/news/2022/03/04/calif-supreme- court-leaves-berkeley-enrollment-cap-place [http://perma.cc/QQ69-ZH2X]. 143 See Shawn Hubler, California Lawmakers Have Solved Berkley’s Problem. Is CEQA Next?, N.Y. TIMES (Mar. 15, 2022), http://www.nytimes.com/2022/03/15/us/berkeley- enrollment.html [http://perma.cc/9LX9-DYB5]. 96 Chapman Law Review [Vol. 26:1 CEQA.144 This decision creates a broad path for future lawsuits against housing for teenagers (music!), families (babies who cry!), and others who do not live the quiet life of the retirees who chose to purchase a home next to the University of California’s oldest campus and now want it to be “QUIETER! Gosh darnit!” E. CEQA v. Old People More CEQA lawsuits were filed against housing for the elderly than housing for the homeless. On even the most benign scale of housing “impacts” to the environment, senior housing ranks at the rock bottom: it generates far fewer traffic trips overall and during commute hours, it generates no “students” to crowd parks and schools, and “social noise” impacts of future residents are likely limited to the volume setting of an individual TV. Building senior housing also plays an outsized role in helping alleviate the housing crisis: seniors are most likely to move from existing single family homes, making those homes available for purchase by younger families who are otherwise renting, which in turn creates a new unit on the rental market.145 F. CEQA v. Homelessness The Legislature enacted numerous CEQA exemptions designed to streamline the construction of shelters and other housing for those experiencing homelessness, including a statutory exemption from CEQA for converting hotels and motels into housing for unsheltered residents. As reported by scholars at UC Berkeley, this worked:146 Project Roomkey provided temporary housing to 22,000 people as of the end of 2020,147 and Project Homekey has funded 12,676 hotel conversion permanent housing units.148 To the legions 144 See Make UC a Good Neighbor v. Regents of Univ.of Cal., 384 Cal. Rptr. 3d 834, 850, 861 (Ct. App. 2023). 145 See While Seniors Age in Place, Millenials Wait Longer and May Pay More for their First Homes, FREDDIE MAC (Feb. 6, 2019), http://www.freddiemac.com/research/insight/20190206-seniors-age-millennials-wait [http://perma.cc/66XF-E8SL]. 146 California’s Homekey Program Unlocking Housing Opportunities for People Experiencing Homelessness, TERNER CTR.FOR HOUS.INNOVATION, http://ternercenter.berkeley.edu/wp-content/uploads/2022/03/Homekey-Lessons-Learned- Final-March-2022.pdf [http://perma.cc/KC5K-FSAX]. 147 Shannon McConville, What Lessons Can Be Learned from Project Roomkey?, PUB. POL’Y INST. OF CAL. (Dec. 4, 2020), http://www.ppic.org/blog/what-lessons-can-be-learned- from-project-roomkey/ [http://perma.cc/5J6Z-CEF3]. 148 Governor Newsom Awards an Additional $36 Million for New Homeless Housing, OFF. OF GOVERNOR GAVIN NEWSOM (Dec. 1, 2022), http://www.gov.ca.gov/2022/12/01/governor-newsom-awards-an-additional-36-million-for- new-homeless-housing [http://perma.cc/TMJ6-D4E2]. 2022] In the Name of the Environment Part III 97 of anti-housing CEQA defenders, however, a statutory exemption just sets the legal framework for CEQA lawsuits asserting that the exemption does not (or should not) apply. G. CEQA v. Single Family Homes/Casitas The final noteworthy category of anti-housing CEQA lawsuits involves single family home projects, including new homes on existing lots and home remodels. The most notorious of these lawsuits languished in court for eleven years, including two trips to the California Supreme Court, in a gadfly v. homeowner dispute over the rebuild of a single family home on a single family lot in Berkeley.149 The home rebuild was unanimously supported by the Berkeley Planning Commission and City Council.150 There is a longstanding regulatory exemption (called “categorical exemption” in CEQA-ese”) finding that building a single family home on a single family lot does not cause environmental impacts warranting further study under CEQA.151 A “community activist” sued anyway, decrying the size of the home and asserting that the Berkeley Hills were susceptible to landslide risks (they are, and buildings must meet stringent standards to protect against landslide risks).152 The same CEQA housing opponent lawyer in Berkeley Hillsides sued on behalf of NIMBY neighbors to block another single family home rebuild in the small Marin County community of San Anselmo153 (median home price, $2.1 million).154 The neighbors unsuccessfully argued that the home and neighborhood were entitled to historic preservation status, in a year-long dispute 149 Arthur F. Coon, First District Upholds CEQA Class 3 Categorical Exemption for Single Family Residence Projects in Beverly Hills, Rejects Claim that “Location” Exception Applies Based on Site’s Location Within Mapped Earthquake Fault and Landslide Areas, MILLER STARR REGALIA (Feb. 12, 2019), http://www.ceqadevelopments.com/2019/02/12/first-district-upholds-ceqa-class-3- categorical-exemption-for-single-family-residence-projects-in-berkeley-hills-rejects-claim- that-location-exception-applies-based-on-site/ [http://perma.cc/8GH3-PQCE]. 150 Arthur F. Coon, California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkley Hillside Preservation v. City of Berkley Decision, MILLER STARR REGALIA (Mar. 3, 2015), http://www.ceqadevelopments.com/2015/03/03/california-supreme-court-construes-ceqas- unusual-circumstances-exception-to-categorical-exemptions-in-berkeley-hillside- preservation-v-city-of-berkeley-decision/ [http://perma.cc/37WD-7694]. 151 CAL.CODE REGS. tit. 14 § 15303(a) (2023). 152 See Chelsea Maclean, California Supreme Court Issues CEQA Ruling Regarding Categorical Exemptions, HOLLAND &KNIGHT (Mar. 11, 2015), http://www.hklaw.com/en/insights/publications/2015/03/california-supreme-court-issues- ceqa-ruling-regard [http://perma.cc/52ZZ-MSJ4]. 153 See Jenkins v. Brandt-Hawley, 302 Cal. Rptr. 3d 883 (Ct. App. 2022). 154 San Anselmo Housing Market, REDFIN, http://www.redfin.com/city/16526/CA/San- Anselmo/housing-market [http://perma.cc/BUP4-Z3BW] (last visited Jan. 28, 2023). 98 Chapman Law Review [Vol. 26:1 that included expert reports and contested hearings, before the elected city council approved the project.155 The neighbors then sued under CEQA; many months later,their lawsuit was found to have no merit in an exceptionally detailed trial court decision.156 The neighbors then filed two appeals, offered to drop their then- pending appeal only if the homeowner agreed not to seek to recover the modest court costs the neighbors would have otherwise had to pay, then waited until the last day to drop their appeal even when their cost-avoidance request was rejected.157 Their courtroom tactics cost another year’s delay during COVID.158 In an unusual twist to the normal CEQA lawsuit story, where the losing NIMBY-side’s lawyer—having cost the project applicant years and hundreds of thousands of dollars—simply slips away quietly and with no financial consequences to the next anti- housing CEQA lawsuit, the homeowner applicant sued the CEQA lawyer for engaging in “malicious prosecution” in bringing a meritless lawsuit alleging that the city had violated CEQA and land use law and then manipulating the appellate process to avoid court costs.159 The target of the malicious prosecution lawsuit has herself argued multiple cases before the California Supreme Court and has been hired by the state judiciary to teach CEQA to state judges in its mandatory CEQA education program.160 The appellate court reviewing the malicious prosecution issue, in the context of the lawyer’s motion that the lawsuit should be dismissed as an “Anti-SLAPP” (strategic lawsuit against public participation) infringement of her protected Constitutional right to engage in the challenged conduct, found that the lawyer’s conduct was indeed grave enough that it demonstrated “a probability of prevailing” on the malicious prosecution claim, meeting all three required criteria:161 155 See Jenkins, 302 Cal. Rptr. 3d at 889–92. 156 See id. at 892, 894. 157 See id. at 895. 158 See id. at 892, 895. 159 Id. at 895–96. 160 See generally id. at 895; see also Susan Brandt-Hawley, BRANDT-HAWLEY L. GRP., http://www.preservationlawyers.com/pub/staff/1 [http://perma.cc/QBX5-XRLM] (last visited Apr. 16, 2023); Berkeley Hillside Pres. v. City of Berkeley, 343 P.3d 834 (Cal. 2015); Friends of Coll. of San Mateo Gardens v. San Mateo Cty. Cmty. Coll. Dist., 378 P.3d 687 (Cal. 2016); Sierra Club v. County of Fresno, 431 P.3d 1151 (Cal. 2018). 161 Breana Inoshita & Kathryn Oehlschlager, First District Affirms Denial of Anti SLAPP Motion in a Malicious Prosecution Action Filed Against CEQA Petitioner’s Attorney, JDSUPRA (Jan. 6, 2023), http://www.jdsupra.com/legalnews/first-district-affirms-denial- of-anti-8055204/ [http://perma.cc/BK2E-44GK]. 2022] In the Name of the Environment Part III 99 x The claims were without merit, as had been exhaustively explained by the trial court.162 x There was no “probable cause” that the claims would prevail. On the land use claim, the appellate court was persuaded that a deliberate and highly misleading argument, and related record reference, about whether a standard was mandatory (petitioner wins) or permissive (discretionary, and petitioner loses) showed the absence of probable cause as to the existence of a meritorious claim. On the CEQA claim, the appellate court found that it was barred for failure to exhaust administrative remedies: a known, and jurisdictional, bar to filing a CEQA lawsuit. Further, the appellate court found the CEQA argument to be invalid even had the argument been timely made to the city because it was directly at odds with the Supreme Court’s decision in Berkeley Hillsides, the eleven-year CEQA anti-single family home rebuild saga described above that the same lawyer had litigated on behalf of a different anti-housing NIMBY, and lost.163 x Most remarkably, the appellate court found that the lawyer had acted with “malice” based on the “subjective intent or purpose.” The Court noted: Defendants’ failure to present the record fairly supports a finding they knew their claims were untenable, Defendants made misleading arguments, Defendants filed and swiftly dismissed the Writ of Supersedeas, and Defendants maintained their appeal for three months and offered to dismiss the appeal only if Plaintiffs agreed to waive any claim to fees and costs.164 While it may be tempting to dismiss this San Anselmo lawsuit against a single-family home rebuild with a tiny granny cottage in the backyard as an anomaly in CEQA lawsuits, it is, in fact, the entirely “unremarkable” pattern of CEQA lawsuits. Two of the most ardent defenders of the CEQA status quo, UCLA Law Professor Sean Hecht (who has since moved on to work for Earthjustice) and former Chief of Staff for the California Attorney General (under Jerry Brown) and current UC Davis Law Professor Rick Frank filed an amicus brief in support of the 162 See Jenkins, 302 Cal. Rptr. 3d 893. 163 See generally id. 164 Id. at 905. 100 Chapman Law Review [Vol. 26:1 lawyer sued for malicious prosecution in this case.165 Their amicus argued that this lawsuit was entirely “unremarkable,” that the outcome of CEQA lawsuits was massively uncertain, and the record showing what the court determined to be erroneous and misleading factual and legal arguments raised by the attorney in her court pleadings was simply a “ubiquitous” feature of CEQA lawsuits.166 The appellate court reviewed this and other amici in its decision. The court specifically rejected arguments raised by amici that the lawyer was simply working to protect “the environment,” noting that “the Jenkinses’s situation has nothing to do with environmental protection and everything to do with the privacy and aesthetic design concerns of several of the Jenkinses’s neighbors.”167 The court also rejected amici arguments asserting that CEQA was critical to protecting disadvantaged communities of color, arguing that “the Jenkinses’s lawsuit has nothing to do with ‘disadvantaged communities,’ ‘underserved communities,’ ‘marginalized communities,’ ‘pollution,’ ‘human health consequences,’ or ‘urban decay,’ to name just a few of the topics raised” by amici. Instead, the court found “apt” the Jenkinses’ brief, which argued that this CEQA lawsuit: involved a group of well-off, ‘NIMBY’ neighbors living in one of the most expensive zip codes in the country trying to prevent their fellow neighbor from rebuilding a decrepit and dangerous residence on their property because the neighbors were concerned about privacy the design aesthetics of the new build. It had nothing to do with significant or negative environmental effects under CEQA.168 III. CEQA V.EVERYTHING ELSE (NON-HOUSING) Although housing is the top target of CEQA lawsuits, at 39% of all lawsuits filed during the study period, 30% of CEQA lawsuits target public infrastructure and other non-residential community construction projects, 26% target non-residential private sector construction projects, and 5% target agency plans and regulations that do not approve specific construction projects, as shown in Figure 3. 165 Brief for Brandt-Hawley as Amici Curae Supporting Appellant, Jenkins v. Brandt- Hawley, 302 Cal. Rptr. 3d 883 (Ct. App. 2022) (No. A162852). 166 Id. at 9, 11, 20. 167 Jenkins, 302 Cal. Rptr. 3d at 907. 168 Id. 2022] In the Name of the Environment Part III 101 We have categorized these into Non-Residential Public and Community Projects (Figure 4), Private Sector Non-Residential Projects (Figure 5), and Public Agency Non-Residential Plans and Regulations (Figure 6). Collectively, these non-housing CEQA lawsuits demonstrate the power of one CEQA lawsuit to thwart laws and decisions that would change the status quo, either by those seeking to preserve the status quo (NIMBYs or other incumbent stakeholders opposed to change), or by those seeking to leverage CEQA lawsuits for economic benefits (competitor or wage lawsuits). We discuss each in turn below. FIGURE 3: TARGETS OF ALL 512 CEQA LAWSUITS FILED STATEWIDE Housing (39%) Non-Residential Agency Approvals of Plans and Regulations (5%) Non-Residential Private Projects (26%) Non-Residential Public & Community Projects (30%) 102 Chapman Law Review [Vol. 26:1 A. CEQA v. Public Infrastructure, Public Services, Utility, and Renewable Energy Projects These projects all involve agency decisions to authorize some physical change to the environment at a particular location. 1. CEQA v. Water Equity By far the largest target of CEQA lawsuits in this public project category are agency decisions to manage or increase water supplies, as shown in Figure 4. Although climate change is routinely blamed for weather events, including droughts, California’s over 130 year FIGURE 4: 157 NON-RESIDENTIAL PUBLIC & COMMUNITY PROJECTS CEQA LAWSUITS COMMUNITY PROJECTS CEQA LAWSUITS Agency Property Mgmt (2%) Airport(2%) Broadband/Telecom (1%) Church (1%) Highway (3%) Hospital/Care (2%) Museum (1%) Parks & Open Space (12%) Renewable Energy (10%) Schools (6%) Street (8%) Transit (1% Waste (3%) Water (48%) 2022] In the Name of the Environment Part III 103 record of annual precipitation and droughts shows massive variability year-over-year, as published by the National Oceanic and Atmospheric Administration as part of their National Integrated Drought Information System and National Center for Environmental Information, and reprinted below:169 This historic pattern, which includes many decades not attributed to the post-1960 decades most associated with higher carbon content in the atmosphere and climate change, demonstrates that California cannot rely on any “natural” condition to provide itself with an adequate “natural” year-round water supply in the right locations based on rainfall. California’s major population centers have always relied on imported water to meet demand, with its oldest and wealthiest cities in the Bay Area, importing most of its water from a dam built in a canyon of Yosemite National Park170 and its wealthiest cities in Southern California, importing water from the Eastern Sierras, the 169 California Precipitation (illustration), in NAT’L OCEANIC & ATMOSPHERIC ADMIN., http://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/statewide/time- series/4/pcp/all/1/1895-2023 [http://perma.cc/ME8H-MS8F] (last visited Apr. 18, 2023). 170 South Bay, WATER EDUC. FOUND., http://www.watereducation.org/south-bay [http://perma.cc/XWS9-RVAU] (last visited Apr. 14, 2023). CALIFORNIA PRECIPITATION 104 Chapman Law Review [Vol. 26:1 Sacramento Bay Delta, and the Colorado river.171 Water management infrastructure facilities—storage, conveyance, treatment, and distribution—are absolutely critical public infrastructure all along the California coast, with, for example, a new generation of de-salination plants installed or approved (and delayed) with CEQA lawsuits, along with recycled, reclaimed, and other local water storage, levee, and environmental enhancement, water quality, and other water management projects approved— and sued under CEQA in cases included in this dataset. Simply, California needs water storage and conveyance solutions for both normal and drought years.172 There is nothing new about the need to manage water: from localized irrigation built by early human farmers to the famous aqueducts of the Roman Empire and beyond, access to reliable water supplies have been a core societal need. In California, public agencies are charged with meeting that need—either directly through water agencies, or indirectly through the regulation of private water utilities and companies.173 Massive federal and state water projects, and smaller-scale local water projects, were partially or mostly completed—sometimes nefariously—for more than a century after statehood, from San Francisco damning a portion of Yosemite National Park174 to Los Angeles draining much of the Owens Valley east of Yosemite.175 171 Los Angeles, WATER EDUC.FOUND., http://www.watereducation.org/los-angeles-1 [http://perma.cc/EY9S-98KX] (last visited Apr. 16, 2023); see also Joseph W. Kane et al., Population Surging in Drought-Stricken Areas, BROOKINGS (June 3, 2015). http://www.brookings.edu/blog/the-avenue/2015/06/03/population-surging-in-drought- stricken-areas/ [http://perma.cc/3ZTG-XUP9]. 172 See Cindy Tuck, Weather Extremes Drive Home the Case for Water Infrastructure, ACWA (Jan. 23, 2023), http://www.acwa.com/news/weather-extremes-drive-home-the-case- for-water-infrastructure/ [http://perma.cc/KZ8A-7D4P]; see also PUBLIC POLICY INSTITUTE OF CALIFORNIA WATER POLICY CENTER,STORING WATER (2018). 173 See CAITRIN CHAPPELLE,ELLEN HANAK &ANNABELLE ROSSER,PUBLIC POLICY INSTITUTE OF CALIFORNIA WATER POLICY CENTER,PAYING FOR CALIFORNIA’S WATER SYSTEM (2021). 174 See Hetch Hetchy Environmental Debates, NAT’L ARCHIVES, http://www.archives.gov/legislative/features/hetch- hetchy#:~:text=Between%201908%20and%201913%2C%20Congress,provide%20a%20stead y%20water%20supply [http://perma.cc/CER4-Q67L] (last visited Apr. 8, 2023); see also Exploring Hetch Hetchy: Where to Go, What to Do, and Where to Stay, YOSEMITE MARIPOSA CNTY. (Mar. 3, 2020), http://www.yosemite.com/hetch-hetchy/ [http://perma.cc/ZW3P-HPRJ]. 175 See Caitlin Shamberg, Part 2: What Happened to the Owens Valley?, KCRW (Nov. 5, 2013), http://www.kcrw.com/news/articles/part-2-what-happened-to-the-owens-valley [http://perma.cc/7MS7-2ST6]; see also Los Angeles Aqueduct, HIST. (Mar. 7, 2019), http://www.history.com/topics/landmarks/los-angeles-aqueduct [http://perma.cc/J5KP-Z9PY]. 2022] In the Name of the Environment Part III 105 By the early 1970s, the state’s first twenty million overwhelmingly white residents176 built and prospered from a world-class network of reservoirs and aqueducts indispensable for living in a desert with massively variable precipitation.177 Since then, the state added nearly another twenty million people,178 almost entirely Latino, Asian and other minorities.179 Starting in the 1970’s, though, politically influential white activists have blocked virtually all major new water storage and distribution system improvements, including those that are essential for providing new, less affluent families with affordable, reliable water.180 The state’s two biggest water projects (the federal181 and state water projects182) were never completed, and remain stressed by competing water demands, insufficient water supplies, and increasingly fragile physical facilities like deteriorating levees in the Delta and deteriorating dams—both at risk of catastrophic failures in heavy storms183 or 176 See Hans Johnson et al., California’s Population, PPIC, http://www.ppic.org/publication/californias-population/ [http://perma.cc/77WR-2CCS] (last visited Mar. 21, 2023); Matt Rosenberg, California Population: The Most Populous State in America, THOUGHTCO, http://www.thoughtco.com/california-population-overview-1435260 [http://perma.cc/MRR2-ZL76] (last updated Sept. 6, 2019). 177 See The California Water System, CAL.DEP’T OF WATER RES., http://water.ca.gov/water-basics/the-california-water-system [http://perma.cc/4Z65-PA8N] (last visited Mar. 21, 2023). 178 See Melody Gutierrez, California’s Population: 20 Million in 1970, Nearly 40 Million Now, SFGATE (Dec. 21, 2017, 5:36 PM), http://www.sfgate.com/politics/article/California-population-grows-to-nearly-40-million- 12448737.php [http://perma.cc/8AG4-PU7K]. 179 See Johnson et al., supra note 176. 180 See, e.g., Dan Walters, Newsom Is Shrinking Brown’s Pet Projects, CAL MATTERS (May 8, 2019), http://calmatters.org/commentary/2019/05/newsom-shrinks-brown-bullet- train-delta-tunnels/ [http://perma.cc/79R2-MBPZ]; Dan Walters, Jerry Brown Wasn’t All Wrong Especially on the Peripheral Canal, THE MERCURY NEWS (Apr. 3, 2007, 12:07 AM), http://www.mercurynews.com/2007/04/03/jerry-brown-wasnt-all-wrong-especially-on-the- peripheral-canal/ [http://perma.cc/DTJ6-6X5W]. 181 See Central Valley Project, BUREAU OF RECLAMATION (Jan. 3, 2023), http://www.usbr.gov/mp/cvp/ [http://perma.cc/B72J-YEWA]; see also Hernandez, In the Name of the Environment II: 2013-2015, supra note 1. 182 See State Water Project, WATER EDUC.FOUND., http://www.watereducation.org/aquapedia/state-water-project [http://perma.cc/6C6W- FSQJ] (last visited Mar. 2, 2023) (“The SWP originally was conceived as a much larger project, but only its first phase was completed.”);see also Hernandez, In the Name of the Environment II: 2013-2015, supra note 1. 183 See Alastair Bland, California Storms Create Paradox: Too Much Water in Reservoirs, Too Soon, CAL MATTERS (Mar. 10, 2023), http://calmatters.org/environment/2023/03 /california-storm-reservoirs-flooding/ [http://perma.cc/F758-YHVB]. 106 Chapman Law Review [Vol. 26:1 earthquakes184 which would result in multi-month water supply and delivery shortfalls.185 Voter-approved funding to increase water availability and reliability (including water storage facilities186) has instead been spent primarily on open space acquisition and conservation and agency/consultant staff, with no appreciable increase in reliable and affordable water supply deliveries.187 Regulatory hurdles to transferring water from willing sellers to thirsty buyers remain daunting,188 and water conveyance facilities are also stressed in many parts of the state.189 Non-partisan reports by public agencies and academics have estimated that over one million Californians, primarily poor and non-White, do not have access to safe drinking water from the taps in their homes.190 Although the Legislature enacted a “Human Right to Water” law in 2012,191 none of the water storage facilities approved by the voters are anywhere near approval, and have instead been sidelined by ever- 184 See Charles Wilson, Earthquakes Can Dry Water Supply. Californians Must Prepare, CAL MATTERS (July 25, 2019), http://calmatters.org/environment/water/2019/07/water- earthquakes/ [http://perma.cc/VQY2-42U3]. 185 For a short primer on California water supplies, see Alastair Bland, Water Is Life. It’s Also a Battle. So What Does the Future Hold for California?, CAL MATTERS (Aug. 4, 2021), http://calmatters.org/explainers/water-policy-explained-california-delta-reservoir- water-conservation/ [http://perma.cc/8Z5V-P3W5]. 186 See Proposition 1 Water Storage Investment Program: Funding the Public Benefits of Water Storage Projects, CAL.WATER COMM’N, http://cwc.ca.gov/Water-Storage [http://perma.cc/Q9L3-JW5K] (last visited Mar. 24, 2023) (“Proposition 1 of 2014 dedicated $2.7 billion for investments in water storage projects.”); see also Annabelle Rosser & Caitrin Chappelle, How Water Bonds Plug Spending Holes, PPIC (June 7, 2021), http://www.ppic.org/blog/how-water-bonds-plug-spending-holes/ [http://perma.cc/MXV5-GQQF]. 187 See Kurtis Alexander, Californians Approved Billions for New Water Storage. Why Hasn’t It Gotten Built?, S.F.CHRON. (Jan. 18, 2023, 6:06 PM), http://www.sfchronicle.com/climate/article/california-water-storage-17719807.php [http://perma.cc/WEK4-SQ6Z]. 188 See, e.g.,Water Transfers Program, CAL.WATER BDS. (Mar. 6, 2023), http://www.waterboards.ca.gov/waterrights/water_issues/programs/petitions/transfers.ht ml [http://perma.cc/ZRW3-4KHN]; SOAR WATERTRANSFERS ACTION TEAM, PROPOSALS TO STREAMLINE WATER TRANSFERS (2014). Both materials reveal that the transfer process is lengthy, and attempts at streamlining this process are ongoing. 189 See ELLENHANAK ET AL., MANAGING CALIFORNIA’S WATER 151–52 ( 2011). 190 See GABRIEL PETEK,EXPANDING ACCESS TO SAFE AND AFFORDABLE DRINKING WATER IN CALIFORNIA 1, 4 (2020); Emily Hoeven, 1 Million Californians Lack Safe Drinking Water, CAL MATTERS (July 27, 2022), http://calmatters.org/newsletters/whatmatters/2022/07/california-drinking-water-safe/ [http://perma.cc/H5WQ-GAQ9]; Eileen Sobeck, Audit Results, AUDITOR OF THE STATE OF CAL. (July 26, 2022), http://www.auditor.ca.gov/reports/2021-118/index.html#section4 [http://perma.cc/M92E-6WQD]; Kathleen Ronayne, State Audit: California Too Slow to Fix Unsafe Tap Water for More than 900,000 Residents, KQED (July 26, 2022), http://www.kqed.org/news/11920517/report-state-too-slow-to-fix-unsafe-tap-water-for- more-than-900000-residents [http://perma.cc/X32F-NP9P]. 191 See CAL.WATER CODE § 106.3 (West 2013). 2022] In the Name of the Environment Part III 107 escalating costs and ongoing opposition.192 Although the water system failures in Flynt, Michigan made headlines—and resulted in criminal charges against those responsible—in 2022 the California Legislative Analyst’s Office concluded that the key state water agency in charge of these issues was not acting with any urgency to solve state water equity, reliability, safety and affordability legal mandates.193 In short, beginning with the era of modern environmental laws, including CEQA in the 1970’s, California stopped building the water infrastructure needed for its growing population and highly and persistently erratic rainfall patterns. Today, even moderately dry conditions (sixty to eighty percent)194 of “normal” rainfall years are enough to trigger yet another emergency declaration, demand for water use cutbacks, and panicked polls ranking water supply as the top environmental concern instead of wildfires and climate change.195 CEQA requires that significant new housing projects demonstrate sufficient water supplies during normal, dry, and multiple dry-year periods.196 These housing projects cannot be built without adequate water supplies. Blocking “new” water supplies is a potent anti-housing tool that has long been used in infamously NIMBY green communities like Marin County to block new housing.197 192 See Dan Walters, Finally, Progress on Vital Sites Reservoir Project, CAL MATTERS (Mar. 22, 2022), http://calmatters.org/commentary/2022/03/finally-progress-on-vital-sites- reservoir-project/ [http://perma.cc/V2HG-AE2J]. 193 See PETEK,supra note 190, at 11–12. 194 See Jan Null, 2022-2023 California Rainfall Season, GOLDEN GATE WEATHER SERVS., http://www.ggweather.com/seasonal_rain.htm [http://perma.cc/7MV9-RD3D] (last visited Mar. 20, 2023). 195 See Mark Baldassare et al., PPIC Statewide Survey: Californians and the Environment, PPIC (July 2022), http://www.ppic.org/publication/ppic-statewide-survey- californians-and-the-environment-july-2022/ [http://perma.cc/5XEV-9GFT]; see also Nick Cahill, Californians Growing More Anxious About Water Supply, Drought, and Wildfires, COURTHOUSE NEWS SERV. (July 28, 2021), http://www.courthousenews.com/californians- growing-more-anxious-about-water-supply-drought-and-wildfires/ [http://perma.cc/9UG8- WY89] (noting that 70% of likely voters in the San Francisco Bay Area said water supply was a significant problem; 67% of Central Valley Voters, 60% of Los Angeles voters, 59% of Inland Empire voters, and 57% of San Diego voters agreed). 196 See CAL.WATER CODE § 10910; S. 610, 2001 Leg., Reg. Sess. (Cal. 2001); S. 221, 2001 Leg., Reg. Sess. (Cal. 2001); see also Water Supply Assessments and Verifications, COACHELLA VALLEY WATER DIST., http://www.cvwd.org/579/Water-Supply-Assessments- Verifications [http://perma.cc/SFD6-BE8V] (last visited Mar. 20, 2023). 197 See Dan Walters, Marin County’s Guerilla War Against Housing, CAL MATTERS (May 31, 2021), http://calmatters.org/commentary/2021/05/marin-county-housing-water- quota/ [http://perma.cc/YSR7-CJDW]. 108 Chapman Law Review [Vol. 26:1 As shown in Figure 4A, below, CEQA lawsuits are most frequently used to target agency decisions to allocate existing water supplies among users. Such decisions typically increase costs to existing users and divert a greater percentage of water deliveries to the environment to support fish and other habitat values. In the lawsuits reviewed for this article, incumbent water consumers, including cities such as San Francisco and farmers in the Central Valley, sued to block new agency decisions to allocate (or change allocations) water. Figure 4A shows that the next most likely water project to be targeted by CEQA lawsuits are those that would increase the availability of water supplies to people. In the lawsuits reviewed for this article, these included projects to treat and use recycled water, desalination projects, groundwater basin recharge projects, and projects to convey water to people by pipeline. Also, famously anti-growth advocates in Monterey County have “enjoyed” a full moratorium on the construction of new housing (even granny flats) based on an insufficient water supply.198 It appears from our study that every significant water supply augmentation project in that region is sued under CEQA. A small category of flood control projects is sued, including floodwater management that would increase groundwater storage or stormwater use, along water quality improvement projects and an emerging new climate category of sea level rise projects. The sea level rise climate debate pits those advocating for a “managed retreat”— abandonment of shoreline infrastructure and development—to those advocating for engineered solutions like sea walls to protect against storms and sea level rise.199 198 See Water Rights Prosecution Team, No. WR 2009-0060 at 57 (Cal. 2009), http://www.waterboards.ca.gov/waterrights/board_decisions/adopted_orders/orders/2009/w ro2009_0060.pdf [http://perma.cc/WCV2-Z857] (prohibiting diversion for new service connections which necessarily prevents construction of new housing that requires a new service connection); see also Dennis L. Taylor, State Regulators Deny Request for More Water for Monterey Peninsula Housing, MONTEREY HERALD, http://www.montereyherald.com/2022/07/29/state-regulators-deny-request-for-more- water-for-monterey-peninsula-housing/ [http://perma.cc/W8MU-D62U] (last updated July 29, 2022) (documenting that the prohibition on new water hookups in the California American Water Co.’s service area prevented the construction of new housing on the peninsula and prevented the area from meeting RHNA targets). 199 See FAQ: The California Coastal Commission and Sea Level Rise,CAL.COASTAL COMM’N 2–3, http://documents.coastal.ca.gov/assets/slr/CC-SLR-FAQ-Release.pdf [http://perma.cc/A2U8-8YS4] (last updated June 2021). 2022] In the Name of the Environment Part III 109 Parks, schools, and streets make up the other more significant categories of these public and community projects, comprising just under ten percent of total CEQA lawsuits filed in this category. 2. CEQA v. Streets and Sidewalks Figure 4 shows that streets and sidewalks are sued more under CEQA, typically for projects that remove street parking or trees to make way for bike paths, bus lanes, or “complete” streets that slow down traffic and promote pedestrian use. The “complete street” program was intensely criticized for narrowing the four- lane highway through the town of Gold Rush mountain community of Paradise to a two-lane road to facilitate downtown “walkability”—a project that left the town with woefully insufficient evacuation capacity, which in turn contributed to the catastrophic death toll for the Paradise wildfire.200 Bike paths 200 See Paige St. John et al., Paradise Narrowed Its Main Road by Two Lanes Despite Warnings of Gridlock During a Major Wildfire, L.A. TIMES (Nov. 20, 2018), http://www.latimes.com/local/california/la-me-ln-paradise-evacuation-road-20181120- story.html [http://perma.cc/UJ3Y-YLKR]. The newest anti-housing tool, currently most often used to block funding access and approvals of affordable and workforce housing in rural and resort areas, is wildfire risk of the scale that engulfed Paradise and other forested communities. Expert foresters have repeatedly cautioned that more than a century of forest mismanagement, which ended the sustainable forest conditions maintained by burns every ten years or so, coupled with predictable drought conditions, FIGURE 4A: CEQA WATER LAWSUITS Allocate/Manage/Treat Water Supplies (59%) Control Flooding (4%) Control Sea Level Rise (1%) Increase Water Available for Consumption (32%) Other Water Quality (4%) 110 Chapman Law Review [Vol. 26:1 also continue to be contentious targets of CEQA lawsuits,201 notwithstanding various partial legislative CEQA exemptions.202 A bike path resulting in the closure of a full lane of bridge highway traffic to accommodate a handful of Marin County daily bike riders, while delaying tens of thousands of daily workforce commuters into Marin County (where they cannot afford to live), lengthened commuter time for workers like teachers,203 and added to vehicular emissions stacked in disadvantaged communities outside of Marin County; the four-year pilot run of this bike path was not challenged in a CEQA lawsuit, but is likely to be targeted if made permanent. 3. CEQA v. Schools Figure 4 demonstrates that projects regarding K-12 schools and colleges show the same pattern of NIMBY/incumbent status quo defense, and economic use, of CEQA. About two-thirds of school projects challenged student dorms (and are included in the anti-housing CEQA lawsuit challenges included in Figure 2, and thus excluded from Figure 3). The next biggest CEQA lawsuit targets are charter and religious schools (often opposed by public school parents and teachers), improvements to public school playfields (opposed by NIMBYs), and an only-in-San-Francisco COVID story of a CEQA lawsuit to block obliteration of historic murals painted by a socialist artist during the Great Depression in a San Francisco High School following a controversial vote by now-recalled School Board Members who asserted the mural have converted California’s “natural” forests to entirely unnatural dense, multi-storied explosive fire risks. See,e.g., LITTLE HOOVER COMM’N., FIRE ON THE MOUNTAIN: RETHINKINGFOREST MANAGEMENT IN THE SIERRA NEVADA, No. 242, at 12–15 (Cal. 2018), http://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/242/Report242.pdf [http://perma.cc/TS3J- GRKF]. Sustainable vegetation removal and burn cycles change the status quo, however, and are delayed by CEQA challenges and environmental (species, habitat, emission) disputes. See Julie Cart, Thinning California’s Fire-Prone Forests: 5 Things to Know as Lawmakers Approve a Plan, CAL MATTERS, http://calmatters.org/environment/2018/08/california-forest-management-fires/ [http://perma.cc/JDB7-P97C] (last updated June 23, 2020). Far more stringent fire codes were adopted for buildings built after 2010. Along with modern resilient community designs with adequate fire prevention and response service, vegetation management, and evacuation routes, those stricter fire codes have stopped or survived wildfires that engulfed older structures and older narrow roadways in areas with opponents of road safety projects. Id. 201 See, e.g., Cmty. Venture Partners v. Marin Cnty. Open Space Dist., No. A154867, 2020 LEXIS 527, at *1 (Ct. App. Jan. 24, 2020). 202 See CAL.PUB.RES.CODE § 21080.20 (2020); CAL.PUB.RES.CODE § 21080.25 (2020). 203 See Rachel Swan, Bike Lane Causes Traffic Misery for Teachers on Richmond-San Rafael Bridge, S.F. CHRON., http://www.sfchronicle.com/bayarea/article/Traffic-is- misery-for-teachers-who-cross-the-15024783.php [http://perma.cc/K7VS-EHGN] (last updated Feb. 3, 2020). 2022] In the Name of the Environment Part III 111 “glorifies slavery, genocide, colonization, manifest destiny, white supremacy [and] oppression.”204 4. CEQA v. Parks/Trails CEQA lawsuits are the favored tool used by passionate advocates for change, or not, to California’s parks and open space. Most park litigants are seeking to limit public use, or access, to parks (and block trails). The most productive source of CEQA lawsuits in all of California history is a narrow slice of Los Angeles land ending on the ocean immediately south of Marina Del Rey, where Howard Hughes built his aerospace empire, including the Spruce Goose.205 More than thirty CEQA lawsuits were filed over more than two decades to block development on the now-completed Playa Vista residential and office project west of Lincoln Boulevard, and the coastal strip from Lincoln to the ocean was required to set aside permanent open space including coastal wetland restoration in the Ballona Wetlands.206 CEQA lawsuits against this property have been a staple in all of our CEQA lawsuits,207 and this is no exception, as multiple advocacy groups filed CEQA lawsuits against the California Department of Fish and Wildlife over the management of this Ballona Wetlands open space. B. CEQA v. Non-Residential Private Projects The agency approvals in this category are for private sector projects that involve a physical change to the environment in a particular project location, as shown in Figure 5. 204 See Amna Khalid & Jeffrey Aaron Snyder, Activists Want a San Francisco High School Mural Removed, Saying Its Impact Today Should Overshadow the Artist’s Intentions, THE CONVERSATION, http://theconversation.com/activists-want-a-san-francisco- high-school-mural-removed-saying-its-impact-today-should-overshadow-the-artists- intentions-116574 [http://perma.cc/69UN-43P4] (last visited Mar. 20, 2023). 205 See The Village at Playa Vista Project, CEQANET WEB PORTAL, http://ceqanet.opr.ca.gov/2002111065/4 [http://perma.cc/FFK4-FEC7] (last visited Apr. 8, 2023); Ballona Wetlands Restoration Project, CEQANET WEB PORTAL, http://ceqanet.opr.ca.gov/2012071090/2 [http://perma.cc/7LTK-PCRK] (last visited Apr. 8, 2023); Our Story, PLAYA VISTA, http://playavista.com/our- story/#:~:text=In%20the%201930s%20and%2040s,of%20any%20plane%20ever%20built [http://perma.cc/75YY-Z4PG] (last visited Apr. 8, 2023). 206 See Ryan Lue, Held Up by Environmental Litigation, Playa Vista Finally Gets Its Own Downtown, PLANETIZEN (Apr. 8, 2012), http://www.planetizen.com/node/55975 [http://perma.cc/FLH2-WG7Q]; Playa Vista Gets the Green Light to Phase II, THEPLANNING REP. (Apr. 26, 2012), http://www.planningreport.com/2012/04/26/playa-vista-gets-green- light-phase-ii [http://perma.cc/KQ7L-TWT6]. 207 See, e.g., Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 21 n. 50, 41 n. 103, 46 n. 161; Hernandez, In the Name of the Environment II: 2013- 2015, supra note 1, at 69 n. 147. 112 Chapman Law Review [Vol. 26:1 1. CEQA v. Cannabis In 2016, fifty-seven percent of California voters decided to legalize cannabis for adult, non-medical use.208 Proposition 64 established a comprehensive and ambitious program to tax and regulate the cultivation and sale of cannabis.209 However, it did not make growing or selling cannabis permissible uses in 208 California Proposition 64 — Legalize Marijuana — Results: Approved, N.Y. TIMES (Aug. 1, 2017, 11:24 AM), http://www.nytimes.com/elections/2016/results/california-ballot- measure-64-legalize-marijuana [http://perma.cc/X4EY-5YV8]. 209 See California Proposition 64, Marijuana Legalization (2016), BALLOTPEDIA, http://ballotpedia.org/California_Proposition_64,_Marijuana_Legalization_(2016) [http://perma.cc/94PC-5XBF] (last visited Mar. 21, 2023). FIGURE 5: 133 PRIVATE SECTOR NON-RESIDENTIAL PROJECTS Asphalt/Gravel (2%) Camping/RVs (1%) Cannabis (18%) Data Center (1%) Entertainment (8%) Food Processing/R&D (5%) Forestry (3%) Gas Power (1%) Hotel (13%) Office (4%) Retail (24%) Terminal (1%) Warehouse (18%) Winery (1%) 2022] In the Name of the Environment Part III 113 California’s hundreds of cities and fifty-eight counties, nor did it regulate (for air pollution or water quality purposes) cannabis facilities.210 In the most remarkable new pattern to emerge from our earlier two CEQA studies, cannabis-related projects exploded into the second most likely to be targeted non-residential project in a CEQA lawsuit. Cannabis growers, retail outlets, and agency regulations and ordinances applicable to cannabis were equally likely to be targeted in CEQA lawsuits. Illegal cannabis operations, which do not obtain agency authorizations, are not sued under CEQA. State cannabis tax revenues are a fraction of what was promised by legalization advocates, the price of cannabis has plummeted since adult personal possession became fully legal, and sales are far less likely to be targeted by law enforcement.211 The cannabis regulatory framework was recently revised in an attempt to achieve more of the revenue and other objectives promised to voters in the legalization initiative.212 2. CEQA v. Warehouse/E-Commerce Figure 5 shows that warehouse projects are the most likely target of non-residential private sector projects to be sued under CEQA. Anti-warehouse CEQA lawsuits have evolved over a multi- year trajectory that displays the broad range of CEQA litigation status quo defenders. Warehouse projects are relatively easy to assemble, with most of the work performed by laborers. In the first round of warehouse CEQA lawsuits, a union representing laborers would sue213 and settle with a “Project Labor Agreement” (“PLA”) in which the warehouse applicant would agree to use union members, and pay union wages and benefits, for warehouse construction. Another labor CEQA litigant has been a union representing truck drivers,214 prompted in part by a national 210 See id. 211 See Susan Wood, California Cannabis Tax Revenue Dips in Early 2022; North Coast Firms Blame Regulation, N.BAY BUS. J. (June 7, 2022), http://www.northbaybusinessjournal.com/article/article/california-cannabis-tax-revenue- dips-in-early-2022-north-coast-firms-blame/ [http://perma.cc/5Y93-FY5P]. 212 See id. 213 See Documented Construction Union Abuse of California Environmental Quality Act (CEQA) 2014-2023, PHONY UNION TREE HUGGERS (Jan. 15, 2023), http://phonyuniontreehuggers.com/unions-abusing-ceqa/union-abuse-of-california- environmental-quality-act-ceqa/ [http://perma.cc/S88R-KEPS]. 214 See Kara Deniz, Teamsters Launch New Amazon Division, INT’L BHD.OF TEAMSTERS (Sept. 6, 2022), http://teamster.org/2022/09/teamsters-launch-new-amazon- division/ [http://perma.cc/3ZXV-RELW]. 114 Chapman Law Review [Vol. 26:1 Amazon campaign215 and a concurrent explosion of e-commerce supercharged during COVID.216 Another round of CEQA warehouse litigants, which continues to grow, has been a coalition of advocacy groups and local officials arguing that warehouse projects near residences (or that use roads near residences) are causing localized adverse air pollution conditions causing disparate harms to disadvantaged communities. The state’s Attorney General has aligned with groups focused on localized air pollution and other impacts.217 One less reported cause of the massive increase in warehouse facilities in Southern California is the fact that the ports of Long Beach/Los Angeles (the nation’s largest by cargo volume) is underserved by rail transport at the ports, and highly reliant on trucking.218 A multi-modal cargo facility that would have expanded rail capacity was blocked, in part by CEQA lawsuits included in our earlier studies, and a modified facility has been newly proposed but remains in the EIR process (pre-litigation).219 California has the largest number of truck driver jobs by state.220 The Inland Empire (east of Los Angeles and Orange Counties) the state’s fastest growing economy, is itself more populous than half of U.S. states,221 and presently has a high percentage (more than 78%) of residents who do not have bachelors’ degrees.222 A recent Brookings Institute Report found 215 See id. 216 See Study: Ontario Is the Hub for Logistics Warehouses in the IE, THEREALDEAL (Dec. 29, 2022, 8:30 AM), http://therealdeal.com/la/2022/12/29/study-ontario-is-the-hub-for- logistics-warehouses-in-the-ie/ [http://perma.cc/9KBL-8BFV]. 217 Warehouses Pose a Dilemma for the Inland Empire, SUN (Oct. 13, 2022, 9:00 AM), http://www.sbsun.com/2022/10/13/warehouses-pose-a-dilemma-for-the-inland- empire/ [http://perma.cc/5YML-ERG7]; see also Press Release, Rob Bonta, California Attorney General, Attorney General Bonta Announces $10 Million in Grants to Research Vehicle- Related Air Pollution and Mitigate Impacts to Environmental Justice Communities Across California (Sept. 23, 2021), http://oag.ca.gov/news/press-releases/attorney-general-bonta- announces-10-million-grants-research-vehicle-related-air [http://perma.cc/2SDM-YRYN]. 218 Lori Ann LaRocco, Railroad Bottleneck at Nation’s Busiest West Coast Ports Reaches Inflection Point, CNBC (July 8, 2022, 9:42 AM), http://www.cnbc.com/2022/07/08/railroad- bottleneck-at-west-coast-ports-reaches-inflection-point.html [http://perma.cc/S3ZQ-VJLR]. 219 Jason Ruiz, New Environmental Analysis Revives Controversial Rail Yard Project, LONG BEACH POST (June 29, 2021, 9:00 AM), http://lbpost.com/news/new-environmental- analysis-revives-controversial-rail-yard-project [http://perma.cc/4USQ-AWWJ]. 220 Local Truck Driver Demographics and Statistics in the US, ZIPPIA (Sept. 9, 2022), http://www.zippia.com/local-truck-driver-jobs/demographics/ [http://perma.cc/Z59J-C5RY]. 221 CHAD SHEARER ET AL., ADVANCING OPPORTUNITY IN CALIFORNIA’S INLAND EMPIRE 12 (2019), http://www.brookings.edu/wp-content/uploads/2019/02/Full-Report_Opportunity- Industries_Inland-California_Final_Shearer-Shah-Gootman.pdf [http://perma.cc/B6LY-GSCX]. 222 GROWING INLAND ACHIEVEMENT, GIA TOGETHER 5-YEAR REPORT 8 (2020), http://inlandempiregia.org/wp-content/uploads/2021/10/GIA_5YearReport_Official_HQ.pdf [http://perma.cc/9HY4-46SV]. 2022] In the Name of the Environment Part III 115 that a high percentage (about 40%) of Inland Empire residents were challenged in making ends meet each month, and that the logistics industry (including warehousing and trucking) was the region’s fourth largest employer (102,553 jobs).223 A recent high profile clash pitted air quality regulators advocating for a transition to presently available ultra-low polluting fossil-fuel truck fleets to achieve air quality standards against climate and environmentalist advocates demanding a transition to an all-electric truck fleet,224 which for heavy duty trucks is a decade or more away from being commercially available. The air quality regulators lost—currently unavailable EV heavy duty trucks are mandated by CARB225 and older trucks will remain in service until new technology becomes commercially available. Legislators, meanwhile, are seeking to ban warehouses and/or truck routes to and from warehouses in much of the region.226 Into this policy, economic, equity, and environmental scrum marches the CEQA lawyers, including an infamous group which pursues a “sue and settle” CEQA business plan and was unable to identify, in a sworn deposition, that they have spent any of their CEQA settlement dollars on any idenified environmental improvement projects.227 3. CEQA v. Renewable Energy Perhaps nothing better highlights CEQA’s antiquated, anti- environmental rigidity than its use against renewable energy projects, which the state’s climate laws and policy demand be built at an unprecedented scale and pace to avoid planetary catastrophe.228 All but one of the energy projects sued during the Study Period was for renewable energy not generated from fossil 223 SHEARER ET AL.,supra note 221, at 32–33. 224 See SCAQMD Chief’s Criticism of EJ Groups over Trucks Draws New Line, INSIDE EPA (Aug. 12, 2021), http://insideepa.com/daily-news/scaqmd-chief-s-criticism-ej-groups- over-trucks-draws-new-line [http://perma.cc/8Z59-N5T5]. 225 Reuters, California to Require Zero-Emissions Heavy Trucks,AUTO BLOG (June 26, 2020, 10:59 AM), http://www.autoblog.com/2020/06/26/california-zero-emissions-trucks- mandate/ [http://perma.cc/9BV3-6YJ9]. 226 Assemb. 2840, 2022 Leg., Reg. Sess. (Cal. 2022), http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2840 [http://perma.cc/3JNC-572F]; see Warehouse Ban Job Killer Bill Faces House of Origin Deadline on Friday, CALCHAMBER (May 25, 2022), http://advocacy.calchamber.com/2022/05/25/warehouse-ban-job-killer-bill-faces-house-of- origin-deadline-on-friday/ [http://perma.cc/LM5L-KH2U]. 227 See Depo. of Joseph Bourgeois, Golden State Environmental Justice Alliance v. City of Los Angeles, No. BS168429 (Sup. Ct. Cal., Cnty. of L.A.) (on file with author). 228 See ERM, FINAL ASSESSMENT REPORT - POTENTIAL IMPACTS OF CALIFORNIA’S HIGH ELECTRIFICATION SCENARIO 1–4 (2021). 116 Chapman Law Review [Vol. 26:1 fuels. The only exception was yet another delay in the long- mandated, long-postponed shut-down of water-cooling systems needed to operate older natural gas electric generating plants; these plants continue to provide “base load” reliable electricity supplies to California when the sun does not shine and the wind does not blow. The state has an increasing, but still trivial, amount of battery capacity to meet power needs when intermittent renewables are not generating electricity. Regulatory backlash against renewable energy projects has grown in other states (particularly in opposition to wind),229 but CEQA lawsuits provide another potent anti- renewable tool for ready use by project opponents. 4. CEQA v. Agriculture The most noteworthy CEQA lawsuits against agriculture were dubbed “the Pistachio wars” after the state’s largest pistachio processer used CEQA to sue competing pistachio processors.230 In an unusual but welcome decision, the competitor was denied standing to use CEQA to advance its competitive agenda;231 an appeal was subsequently filed, then dropped. Multiple lawsuits were also filed against winery projects, and one feedlot. 5. CEQA v. Fun Entertainment and recreational projects that draw more people to a community are an ever-present category of CEQA lawsuits. This Study Period included lawsuits challenging bungee jumping, a golf course’s ongoing existence owed to its new use of recycled water, and sports stadium gifted with project-specific CEQA Legislation in a longstanding legislative tradition resembling papal indulgences granted to naughty aristocrats in the Middle Ages. This CEQA lawsuit category is particularly challenging for seasonal festivals sponsored by local government and community groups that operate on a shoestring budget; both CEQA compliance costs and litigation defense costs can be 229 Robert Bryce, Backlash Against Renewables Surged in 2021, with 31 Big Wind and 13 Big Solar Projects Vetoed Across US, FORBES (Jan. 27, 2022, 10:24 AM), http://www.forbes.com/sites/robertbryce/2022/01/27/backlash-against-renewables-surged- in-2021-with-31-big-wind-and-13-big-solar-projects-vetoed-across-us/?sh=b9235f03bb79 [http://perma.cc/T8X9-R5T3]. 230 John Lindt, Touchstone Advances Position in Pistachio War, SUN-GAZETTE (Jan. 5, 2022, 7:24 AM), http://thesungazette.com/article/business/agriculture/2022/01/05/touchstone- advances-position-in-pistachio-war/ [http://perma.cc/3ECF-ULLS]. 231 Ruling on Petition for Writ of Mandate at 5–6, Wonderful Citrus II, LLC v. County of Tulare, 2021 Cal. Super., No. VCU283508 (“Wonderful’s interest in this litigation is as a direct economic competitor with direct commercial and competitive interests adverse to Touchstone’s farming operations, not a party motivated by concerns relating to public rights . . . .”). 2022] In the Name of the Environment Part III 117 permanent festival killers. Festivals were again challenged in CEQA lawsuits filed during the Study Period. 6. CEQA v. Retail Non-union and discount retailers—from Costco to the corner gas station—were targeted by these lawsuits. CEQA lawsuits can be filed anonymously by never-before-in-existence “ad hoc associations” that do not have to disclose any individual member or funding source.232 Retail CEQA lawsuits have long been associated with unions seeking to block non-unionized big box retailers and economic competitors. In this Study Period, the retail sector is no longer experiencing explosive growth of new stores and is, in many cases, retracting, so these CEQA lawsuits were more likely to challenge additions to existing stores (e.g., gas fueling stations). Small business competitors also use CEQA lawsuits against each other. 7. CEQA v. Hotels The union representing hotel workers has been much more active during this Study Period. These lawsuits target non-union hotels (and projects that include a hotel but for which no hotel owner/operator has been identified). These typically settle with union hotel worker hiring agreements. While national labor laws preclude most unions (except, for example, construction trades and agricultural workers) from engaging in workforce bargaining tactics with non-employers, this union use of CEQA against non-employers has remained a longstanding staple of CEQA lawsuits. Some hotels include one or more apartments reserved exclusively for occupancy of hotel staff, but in our study methodology, hotels with employee- only housing units were not counted as residential projects. 8. CEQA v. Not Much Else Not on the list: new manufacturing, mining (lithium valley for batteries), transit, forestry, highways, airports, hospitals, or much of anything else. California has lagged far behind the rest of the country in creating new manufacturing jobs233 (typically higher wage jobs available to workers without college degrees). California’s population has continued to decline: the state lost 232 See Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 24, 78 (finding that only 13% of CEQA lawsuits filed between 2015 and 2018 were filed by known advocacy groups with a history thereof). 233 Christopher Arns, California’s Manufacturing Jobs Lag Nation, SACRAMENTO BUS. J. (June 25, 2013), http://www.bizjournals.com/sacramento/news/2013/06/25/californias- manufacturing-jobs-lag.html [http://perma.cc/9SMR-QTRL]. 118 Chapman Law Review [Vol. 26:1 500,000 residents between 2020 and 2022,234 and San Francisco logs in as having the steepest population drop in homebuyers of any large city in the nation, down to its pre-tech boom 2012 level.235 Mine applications—for gold236 and lithium237—are deep in the CEQA compliance (pre-permit approval) stage. C. CEQA v. Non-Residential Agency Plans and Regulations As shown in Figure 6, public agency approvals of plans and regulations that do not allow or incentivize additional housing, and do not approve physical construction activities for any one project or location, but instead result in foreseeable changes to the environment as these plans and ordinances are implemented, were also targeted in our smallest category of CEQA lawsuits. 234 Terry Castleman, California’s Population Dropped by 500,000 in Two Years as Exodus Continues, L.A. TIMES (Feb. 15, 2023), http://www.latimes.com/california/story/2023-02-15/californias-population-has-dropped- by-more-than-half-a-million-in-about-two-years-why [http://perma.cc/2E4M-E3DS]. 235 See Tessa McLean, San Francisco Population Declines Again, Hitting Lowest Level Since 2012, SFGATE (Jan. 27, 2023), http://www.sfgate.com/bayarea/article/san-francisco- population-declines-17746756.php [http://perma.cc/5A95-FQR8]. 236 See Matt Kelley, Idaho Maryland Mine - Rise Grass Valley, NEV. CNTY. CAL., http://www.nevadacountyca.gov/3195/Idaho-Maryland-Mine—-Rise-Grass-Valley [http://perma.cc/JZP4-EMZU] (last visited Mar. 16, 2023). 237 See Janet Wilson & Erin Rode, Lithium Valley: A Look at the Major Players Near the Salton Sea Seeking Billions in Funding, DESERT SUN (May 13, 2022), http://www.desertsun.com/story/news/2022/05/13/lithium-valley-look-major-players-near- salton-sea-seeking-billions-funding/9665978002/ [http://perma.cc/MP9F-NLL4]. FIGURE 6: 24 PUBLIC AGENCY NON-RESIDENTIAL PLANS/REGULATIONS Fishing (4%) Greenhouse Gas (88%) Non-Residential Zoning (4%) Pesticide (4%) 2022] In the Name of the Environment Part III 119 1. CEQA v. Climate Change There is one stand-out category of public agency approvals for non-residential plans and regulations, and it is climate. California’s climate change commitments made renewable energy—electricity generated by the sun, wind, biogas, or hydropower—second only to water as the top target of CEQA lawsuits in the public/infrastructure/community project category (Figure 4). California’s climate change plans and regulations— especially those aimed at phasing out or banning continued extraction of oil and banning use of natural gas in new homes, restaurants, and other buildings—are the top targets of regulatory agency plans and activities that result in physical changes to the environment only from subsequent plan implementation and regulatory compliance activities. California has historically pursued both oil and gas extraction, and various longstanding statutes continue to require state and local agencies to authorize these activities.238 At issue are billions of dollars in oil and gas reserves, most of which are now owned by families or smaller companies as many of the major energy companies have liquidated their California holdings.239 Also at issue are hundreds of thousands of jobs, mostly held by those without college degrees, mostly paying above-median wages and benefits in areas where replacement higher wage jobs are unavailable for comparably skilled workers.240 Government agencies also derive hundreds of millions of dollars in tax revenues from this industry, and from related construction, maintenance, and support services and business.241 Shutting down California’s oil industries, long sought by environmentalist “keep it in the ground” advocates, simply means that more oil will be imported from other countries, most notably Saudi Arabia and Venezuela (and, until recently, Russia), with considerably less regard for environmental protections, worker safety, and the rights of disadvantaged communities.242 An authoritative study by the California Council 238 See Oil and Gas, CAL.DEP’T OF CONSERV., http://www.conservation.ca.gov/calgem/Pages/Oil-and-Gas.aspx [http://perma.cc/62EK- 5LGS] (last visited Mar. 16, 2023). 239 See KERN ECON.DEV.FOUND., THE ECONOMIC CONTRIBUTION OF THE OIL AND GAS INDUSTRY IN KERN COUNTY 3–4 (2021), http://kernedc.com/wp- content/uploads/2021/04/KEDF-Economic-Contribution-of-the-Oil-and-Gas-Industry-in- Kern-County_-2021.pdf [http://perma.cc/PDM3-7YC2]. 240 Better Jobs, Better Lives in the Oil and Gas Industry, W.STATESPETROL.ASS’N (Jan. 10, 2023), http://www.wspa.org/resource/buildbetterlives/ [http://perma.cc/YN5G-Q97A]. 241 See KERN ECON.DEV.FOUND.,supra note 239, at 4. 242 See generally id. at 7. 120 Chapman Law Review [Vol. 26:1 of Science and Technology concluded that more GHG emissions would be produced from less environmentally stringent oil production practices overseas, and still more would be emitted in transporting oil thousands of miles across multiple oceans and seas.243 The historically most productive oil reserves on land are located more than 1500 feet below ground on parched lands used intermittently for grazing, and therefore likely have minimal impacts on groundwater.244 California has long suffered from the highest gasoline prices in the nation245 (excepting on occasion Hawaii, which imports all of its oil),246 and high gas prices have a regressive impact on lower income workers who are more likely to need to be physically present at work to be paid, and to live in less costly areas and have longer commutes.247 California’s EPA has concluded that, “[t]he highest levels of diesel PM are near ports, rail yards and freeways,” and, as depicted in the CalEnviroScreen4.0 mapping tool, are contrasted with proximity to stationary industrial 243 See JANE LONG ET AL., AN INDEPENDENT SCIENTIFIC ASSESSMENT OF WELL STIMULATION IN CALIFORNIA VOLUME II 40–41 (Cal. Council on Sci. & Tech. et al. eds., 2015), http://ccst.us/wp-content/uploads/160708-sb4-vol-II-7.pdf [http://perma.cc/A4W6- QPX3] (“Oil produced in California using hydraulic fracturing also emits less greenhouse gas per barrel than the average barrel imported to California. If the oil and gas derived from stimulated reservoirs were no longer available, and demand for oil remained constant, the replacement fuel could have larger greenhouse emissions.”); see also CAL. DEP’T OF CONSERVATION,ENVIRONMENTAL IMPACT REPORT,ANALYSIS OF OIL AND GAS WELL STIMULATION TREATMENTS IN CALIFORNIA 12.2-37, 12.2-67 (2015), http://www.conservation.ca.gov/calgem/Pages/SB4_Final_EIR_TOC.aspx [http://perma.cc/ 6QP3-683H] (rejecting a hydraulic fracturing ban alternative because it “would create much greater significant and unmitigable (Class I) impacts to greenhouse gas emissions” due to increased oil imports which are not subject to California cap and trade requirements, “resulting in an overall net increase in GHG emissions” compared with the status quo). 244 See generally KERN ECON.DEV.FOUND.,supra note 239. 245 Zack Budryk, Why California Has the Highest Gas Prices in the Nation, THE HILL (Mar. 17, 2022, 3:52 PM), http://thehill.com/policy/energy-environment/598655-taxes- mystery-surcharge-intensify-californians-pain-at-the-pump/ [http://perma.cc/YKP3- NU9A]; see also State Gas Price Averages, AAA, http://gasprices.aaa.com/state-gas-price- averages/ [http://perma.cc/HS79-KMQ5] (last visited Mar. 17, 2023); Dan Walters, Who’s To Blame for California’s High Gas Prices?, CAL MATTERS (Oct. 11, 2022), http://calmatters.org/commentary/2022/10/whos-to-blame-for-californias-high-gas-prices/ [http://perma.cc/7P3U-GN7K]. 246 See Julian Spector, Hawaii Relies on Russian Oil - But Clean Energy Could Change That, CANARY MEDIA (Feb. 25, 2022), http://www.canarymedia.com/articles/fossil- fuels/hawaii-relies-on-russian-oil-but-clean-energy-could-change- that#:~:text=Hawaii%20imports%20all%20of%20its,of%20it%20from%20Russia%20itself [http://perma.cc/PA9B-V8AF]. 247 Isabel V. Sawhill, How Higher Gas Prices Hurt Less Affluent Consumers and the Economy, BROOKINGSINST. (Mar. 6, 2012), http://www.brookings.edu/opinions/how-higher- gas-prices-hurt-less-affluent-consumers-and-the-economy/ [http://perma.cc/RA5Q-Z4S9]. 2022] In the Name of the Environment Part III 121 facilities such as factories and refineries.248 Localized health impacts from oil and gas activities have long been alleged, but recent “citizen science” data from thousands of air quality sensors distributed throughout the state and monitored under the supervision of air quality agencies, has confirmed that ground- level pollution exposures are higher for a key fossil fuel combustion pollutant (diesel particulate matter) nearest ports and freeways—not refineries or oil fields.249 Local agencies have imposed actual or de facto bans (e.g., with mile-wide “buffer” mandates), on continued oil extraction activities,250 and environmentalists have sued state and local agencies that continue to allow oil and gas extraction as required by existing state law.251 Opponents to oil and gas extraction agency actions use CEQA to thwart existing legislative mandates, property rights, and the jobs and revenue expectations of tens of thousands of families, in pursuit of speeding up California’s “just transition” to a future without fossil fuel use.252 California’s gasoline use declined only 1.3% below 2018 levels.253 Banning the use of natural gas in new homes, restaurants, and other structures is also a climate policy priority, but natural gas is the last of the less costly energy supplies available to Californians as California’s electricity prices have soared far higher than other states in recent years to fund renewable energy and retrofit existing electricity infrastructure long- neglected by state and utility leaders. A recent study linking natural gas appliances to adverse health outcomes, like asthma, was disavowed by the organization that sponsored the study, which belatedly acknowledged that the study did not assume or 248 Diesel Particulate Matter, OEHHA, http://oehha.ca.gov/calenviroscreen/indicator/ diesel-particulate-matter [http://perma.cc/QG54-WLGM] (last visited Apr. 8, 2023). 249 See generally id. 250 See Ethan N. Elkind & Ted Lamm, Legal Grounds: Law and Policy Options to Facilitate a Phase-Out of Fossil Fuel Production in California,BERKELEY CTR. FOR L., ENERGY & THE ENV’T (Apr. 2020), http://www.law.berkeley.edu/wp- content/uploads/2020/04/Legal-Grounds.pdf [http://perma.cc/57WF-X4GA]. 251 See, e.g.,Center for Biological Diversity v. California Geological Energy Management Division, U.S.CLIMATE CHANGE LITIG., http://climatecasechart.com/case/center-for-biological-diversity-v-california-geological- energy-management-division/ [http://perma.cc/BCG2-MNAZ]. 252 See generally CAL.PUB.RES.CODE §§ 21000–21177 (West 2023). 253 See Ted Goldberg, Strong California Gas Demand Unlikely to Return, as Even Refineries Go Renewable, KQED (Sept. 24, 2020), http://www.kqed.org/news/11839077/strong-california-gas-demand-unlikely-to-return-as- even-refineries-go-renewable [http://perma.cc/KP6A-BW2B]. That same article reports that, as a result of COVID, demand “fell off a cliff.” Id. But that was as of 2020 and does not account for the increasing use of fuel after COVID-related travel restrictions and limitations were lifted. 122 Chapman Law Review [Vol. 26:1 estimate any causation between natural gas appliance use and asthma rates.254 Asthma rates have long been known to be higher in communities of color, but researchers have identified access to healthcare and other factors (not use of gas stoves, heaters, clothes driers, and water heaters) as key culprits.255 Older homes do not have adequate electricity systems to allow for a simple replacement of natural gas with electric appliances,256 and civil rights advocates as well as small businesses—such as restaurants reliant on the availability and use of natural gas appliances—have objected and, in some cases, sued to block local “gas ban” ordinances.257 There is no current plan in California on how to improve the electric grid to accommodate all-electric homes.258 Even as the globally tectonic tactics of climate change and a just transition are debated in Congress, the state Legislature, and among a plethora of experts in academia, government, and the non-governmental organizations and private sectors, CEQA lawsuits against agencies seeking to ban or allow fossil fuel extraction and use in California are by far the most frequently targeted agency regulatory action in our Study Period. IV.CEQA AND THE RULE OF LAW CEQA is a statute: it was enacted by the Legislature in 1970, and has been amended by hundreds of subsequent statutes over 254 See Nicole Jacobs, Under Scrutiny, Author of Activists Study on Asthma and Gas Stoves Admit No ‘Casual Relationship’, ENERGY IN DEPTH (Jan. 13, 2023), http://energyindepth.org/under-scrutiny-authors-of-activist-study-on-asthma-and-gas- stoves-admit-no-causal-relationship/ [http://perma.cc/L5NB-SGYE]. 255 See ASTHMA AND ALLERGY FOUND. OF AM., ASTHMA DISPARITIES IN AMERICA:A ROADMAP TO REDUCING BURDEN ON RACIAL AND ETHNIC MINORITIES (2020), http://aafa.org/wp-content/uploads/2022/08/asthma-disparities-in-america-burden-by-race- ethnicity-executive-summary.pdf [http://perma.cc/C7J6-FHNY]. 256 See Julie Johnson, ‘I’d Have to Gut My House’: Plan to Phase Out Natural Gas Devices Sparks Fierce Debate in Bay Area, S.F.CHRON. (Feb. 13, 2023), http://www.sfchronicle.com/climate/article/bay-area-gas-heater-debate-17769394.php [http://perma.cc/7HPJ-AQF8]; Rebecca Leber, The Most Annoying Barrier to Getting Your Home Off Fossil Fuels, VOX (Oct. 8, 2022), http://www.vox.com/energy-and- environment/2022/10/8/23387530/home-electrification-heat-pumps-gas-furnace- contractors [http://perma.cc/4HE8-KAHP]. 257 See Mallory Moench, As Bay Area Natural Gas Bans Sped, Lawsuits Mount, S.F. CHRON. (Dec. 3, 2019), http://www.sfchronicle.com/business/article/As-Bay-Area-natural- gas-bans-spread-lawsuits-14877008.php [http://perma.cc/8YCQ-G6RK]. 258 See Mallory Moench, As Bay Area Natural Gas Bans Sped, Lawsuits Mount, S.F. CHRON. (Dec. 3, 2019), http://thehill.com/changing- america/sustainability/energy/3663271-what-does-a-ban-on-natural-gas-appliances- mean-for-homeowners/ [http://perma.cc/5A4V-5R56]. 2022] In the Name of the Environment Part III 123 more than fifty years.259 Section 21083 of CEQA directs the Governor’s OPR to adopt “guidelines” that:260 x “include objectives and criteria for the orderly evaluation of projects and the preparation of environmental impact reports and negative declarations in a manner consistent with” CEQA;261 x “specifically include criteria for public agencies to follow in determining whether or not a proposed project may have a ‘significant effect on the environment”;262 x be reviewed and amended “at least once every two years.”263 Guidelines are required to be adopted in compliance with specified sections of the California Administrative Procedure Act (“APA”).264 In 1993, the APA was amended to include legislative findings which, among other provisions, concluded that there had been “an unprecedented growth in . . . regulations” including a “complexity and lack of clarity in many regulations” and accordingly directed procedural and substantive requirements for adopting and amending regulations.265 The APA’s procedural requirements include, for example, a mandatory public notice and comment process, and a mandatory evaluation of the economic consequences of regulations, before a new or amended regulation can be approved.266 The APA also includes substantive requirements for new and amended regulations:267 (a) ”Necessity” means the record of the rulemaking proceeding demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific, taking into account the totality of the record. For purposes of this standard, evidence includes, but is not limited to, facts, studies, and expert opinion. (b) ”Authority” means the provision of law which permits or obligates the agency to adopt, amend, or repeal a regulation. 259 See CAL.PUB.RES.CODE § 21050 (West 2023); Amanda Daams, Recent and Upcoming Changes to CEQA, BBK (May 10, 2018), http://www.bbknowledge.com/news- events/insights/2018/authored-articles/05/recent-and-upcoming-changes-to-ceqa [http://perma.cc/E6R7-MN8Z]. 260 See CAL.PUB.RES.CODE § 21083 (West 2005). 261 Id. 262 Id. 263 Id. 264 CAL.GOV’T CODE tit. 2, §§ 11340.1–11340.5 (West 2023). 265 CAL.GOV’T CODE tit. 2, § 11340 (West 2023). 266 CAL.GOV’T CODE tit. 2, §§ 11346, 11346.2–11346.3 (West 2023). 267 CAL.GOV’T CODE tit. 2, § 11349 (West 2001). 124 Chapman Law Review [Vol. 26:1 (c) ”Clarity” means written or displayed so that the meaning of regulations will be easily understood by those persons directly affected by them. (d) ”Consistency” means being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law. (e) ”Reference” means the statute, court decision, or other provision of law which the agency implements, interprets, or makes specific by adopting, amending, or repealing a regulation. (f) ”Nonduplication” means that a regulation does not serve the same purpose as a state or federal statute or another regulation. This standard requires that an agency proposing to amend or adopt a regulation must identify any state or federal statute or regulation which is overlapped or duplicated by the proposed regulation and justify any overlap or duplication. This standard is not intended to prohibit state agencies from printing relevant portions of enabling legislation in regulations when the duplication is necessary to satisfy the clarity standard in paragraph (3) of subdivision (a) of Section 11349.1. This standard is intended to prevent the indiscriminate incorporation of statutory language in a regulation. Section 15000 of the Guidelines268 state that they are “binding on all public agencies in California.” The CEQA Guidelines have been held to have the same status as regulations.269 The California Supreme Court has affirmed that, “[a]t a minimum . . . courts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA.”270 Collectively, CEQA and the Guidelines comprise “The Rule of Law” governing how state and local agencies are supposed to disclose, evaluate, and minimize the significant adverse environmental impacts of discretionary agency decisions to undertake, fund or approve projects, plans, regulations. A. Administrative Law Jurisprudence v. CEQA Jurisprudence Under long established principles governing how courts should interpret and enforce statutes and regulations, ordinary administrative law practice is for courts to use an orderly set of “rules” or “canons” to properly interpret and apply the law to 268 CAL.CODE REGS. tit. 14, § 15000 (2023). 269 See, e.g., Union of Med. Marijuana Patients, Inc. v. City of San Diego, 446 P.3d 317, 323 (Cal. 2019) (“CEQA is implemented by an extensive series of administrative regulations promulgated by the Secretary of the Natural Resources Agency, ordinarily referred to as the ‘CEQA Guidelines.’”). 270 Laurel Heights Improvement Ass’n. v. Regents of Univ. of Cal., 764 P.2d 278, 282 n.2 (Cal. 1988) (citing Rural Landowners Ass’n. v. City Council, 143 Cal. App. 3d 1013, 1022 (Ct. App. 1983)). 2022] In the Name of the Environment Part III 125 particular situations in dispute.271 To illustrate both ordinary administrative law jurisprudence and the distinctly different direction CEQA judicial jurisprudence has taken, we will review a 2023 appellate court decision that concluded, for the first time in CEQA’s history, that the noise of future student occupants of an unbuilt dormitory on campus property is an “environmental impact” that was improperly excluded from the EIR prepared by the University of California.272 Residential neighbors near the campus had produced noise studies confirming the occurrence of late-night student noise, and the record also showed that the campus dopted rules against late night student parties and the campus, city police, and other officials implemented measures (including enforcement of noise ordinance restrictions) to address excessive student noise.273 The record also included extensive evidence of the absence of proximate student housing for students, high rates of college student homelessness, and the fact that the unavailability of proximate, affordable student housing caused higher student drop- out rates and poorer educational outcomes, especially to students of color and first generation college student.274 1. Student Noise and Conventional Administrative Law Practice In CEQA’s sixty-three year history, there has never been a statute or guideline requiring a noise evaluation of human occupancy of future housing. Some housing—especially housing suitable for families—is more likely to have late noise from colicky-infants, ebullient children playing (and sometimes shouting) during long summer nights, and teenagers fond of loud music even before matriculating to college. In the ordinary administrative law course, a court could not have reasonably concluded that “social noise” from future undergraduate behavior at future dorms was a CEQA impact, using just the most basic canons of administrative law jurisprudence. 271 VALERIE C. BRANNON,CONG.RSCH.SERV., R45153, STATUTORY INTERPRETATION: THEORIES,TOOLS,&TRENDS (2023) http://crsreports.congress.gov/product/pdf/R/R45153#:~:text=First%2C%20judges%20often %20begin%20by,how%20courts%20ordinarily%20read%20statutes. 272 See Make UC a Good Neighbor v. Regents of Univ. of Cal., 304 Cal. Rptr. 3d 834, 857 (Cal. Ct. App 2023). 273 Id. at 858–59. 274 See Respondents’ the Regents of the Univ. of Cal. and Real Party in Int. Res. for Cmty. Development’s Joint Opposition to Appellants’ Opening Brief at 16–21, Make UC a Good Neighbor v. Regents of Univ. of Cal., 304 Cal. Rptr. 3d 834 (2023) (No. A165451); see generally Study of Student Basic Needs, THE CAL.STATE UNIV. (Jan. 2018), http://www.calstate.edu/impact-of-the-csu/student-success/basic-needs- initiative/Documents/BasicNeedsStudy_phaseII_withAccessibilityComments.pdf [http://perma.cc/YVW2-5RH2]. 126 Chapman Law Review [Vol. 26:1 a. Plain Language Rule Section 21083.1 states “that courts not ‘impose’ any ‘substantive requirements beyond those explicitly stated’ provides ‘plain language’ that the Legislature did not intend for the court to expand CEQA to cover social noise. . . .” from future occupants of future housing.275 b. Deference to Expert Administrative Agency Interpretation OPR, charged with developing the CEQA Guidelines, is the expert CEQA agency in California. The CEQA Guidelines underwent a comprehensive revision in 2018, which, among other features, addressed noise impacts. In Appendix G, Section XI.d, the Guidelines note that “[a] substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project” could result in a significant adverse noise impact under CEQA.276 OPR plays a key role in CEQA’s statutory scheme, but it is nevertheless constrained by the statute and, therefore, cannot create a requirement that does not exist in the statute.277 The CEQA Guidelines did not, however, make a shouting college student or illegal late-night loud party a CEQA impact. “Social noise”—if excessive—violates local noise ordinances in public and is a law enforcement issue, not a CEQA impact issue. c. Deference to Lead Agency Analytical Methodology and Factual Findings The University’s EIR disclosed the fact that undergraduates were sometimes too noisy late at night and explained what the University was doing—through dorm rules and town-gown policing—to address this unlawful behavior.278 The University’s EIR also evaluated noise impacts from construction, and from post-construction operation (e.g., of building equipment).279 275 Letter Brief from Jennifer Hernandez on Behalf of Two Hundred for Homeownership at 9–10, Make UC a Good Neighbor, 304 Cal. Rptr.3d 834 (Jan. 3, 2023), http://www.hklaw.com/-/media/files/insights/publications/2023/01/letterbriefucb1323.pdf [http://perma.cc/M4W9-E99V]. 276 See CAL.CODEREGS. tit. 14, App. G § XI.d (2019). 277 See CAL.GOV’T CODE § 11349(b) (West 2001) (providing that all regulations must be authorized by the provision of law that “permits or obligates the agency to adopt, amend, or repeal a regulation”). 278 See Make UC a Good Neighbor, 304 Cal. Rptr. 3d at 858. 279 Id. 2022] In the Name of the Environment Part III 127 d. Consistency with Other Statutes, and with Constitutional Protections Statutes should be construed to avoid questionable constitutional outcomes, such as differentially assessing the demographics of planned new housing and then speculating as to “social noise” impacts attributable to different ages and races.280 2. CEQA Jurisprudential Deviations from Administrative Law Norms: Undergraduate Student Dorm Occupancy Example In January of 2023, an appellate court decided for the first time in CEQA’s history that “social noise”—the noise that individual student occupants of dorms make in the neighborhood immediately north of the UC Berkeley campus—was a CEQA impact.281 “Noise” is indeed a CEQA impact, as identified in the CEQA statute as described by the court.282 The court then turned exclusively to judicial precedent to determine whether “social noise” from future student occupants of unbuilt dorms was also a CEQA impact, fully bypassing conventional administrative law jurisprudential canons in deciding whether this previously unadjudicated issue of unamplified human noise (and specifically unlawful noise from late-night shouts by partying students) was required to be evaluated, and mitigated, under CEQA.283 Following a familiar pattern of expansive judicial interpretations of CEQA, the court first cited to the California Supreme Court’s first CEQA decision, in 1972, directing that CEQA is to be interpreted by the courts so “as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”284 At issue in Mammoth was a 184-unit condo project with a restaurant near the Mammoth Mountain ski resort in Mono County.285 The court went on to acknowledge appellate court decisions, holding that amplified music at a wedding venue in the Santa Cruz mountains, traffic and operational noise from a mining project in the Sierra foothills, and oil well drilling in Kern County were acknowledged to cause noise impacts under CEQA that were insufficiently considered in the CEQA documents (including negative declarations finding the absence of excessive noise) for 280 See, e.g., People v. Gutierrez, 324 P.3d 421, 435 (Cal. 2014). 281 See Make UC a Good Neighbor, 304 Cal. Rptr. 3d at 857. 282 Id. 283 See id. at 857–58. 284 See Friends of Mammoth v. Bd. of Supervisors, 502 P.2d 1049, 1056 (Cal. 1972). 285 See id. at 1052. 128 Chapman Law Review [Vol. 26:1 those projects.286 Clearly aware of the controversy the decision would create, the court referred to undisputed studies submitted by neighbor opponents to student dorms that undergraduates were sometimes noisy late at night and that town and gown police enforcement of noise and party restrictions had not eliminated this behavior.287 The court then determined that the University improperly concluded that student noise was a behavioral challenge addressed through dorm rules and policing, invalidated the EIR, kept in place an indefinite stay against allowing construction of the dorm project, and remanded the dispute to the lower court to fashion a more specific remedy about how the legally non- compliant EIR must be modified to address this new “social noise” CEQA impact.288 3. Next Steps with Social Noise and CEQA If not accepted for review, and then fully overturned in pending Supreme Court petitions,289 “social noise” will henceforth be added to CEQA based solely on this new UC Berkeley appellate court dorm decision. Like other CEQA judicial expansions created over the past five decades, this new CEQA impact becomes law without any authorizing action by any elected or appointed state or local officials within or outside the CEQA context. The appellate court, using CEQA’s expansive tradition of jurisprudence instead of ordinary administrative law canons, used the statutory inclusion of “noise” in CEQA to mandate a new sub-type of unamplified, illegal, late night undergraduate student occupancy “noise.”290 The court recognized that the plain language of the statute includes “noise,” but then gave no deference to expert agency interpretations in the CEQA Guidelines or a fifty year history of CEQA practice, which collectively never elevated human occupancy “social noise” into a 286 See Keep Our Mountains Quiet v. County of Santa Clara, 187 Cal. Rptr. 3d 96, 111– 14 (Ct. App. 2015) (analyzing crowd noise at wedding venue); see also Oro Fino Gold Mining Corp. v. County of El Dorado, 274 Cal. Rptr. 720, 725–26 (Ct. App. 1990) (analyzing noise from mining project); see also King & Gardiner Farms, LLC v. County of Kern, 259 Cal. Rptr. 3d 109, 174 (Ct. App. 2020) (analyzing noise from oil well drilling). 287 See Make UC a Good Neighbor, 304 Cal. Rptr. 3d at 859. 288 See id. at 858, 865. The Court also held that the University failed to justify prioritizing dormitory construction and construction of a homeless shelter at one but not another of the locations identified by the University as suitable for future campus housing. Id. at 863. This portion of the decision is not pertinent to the illustrative example described above. 289 See, e.g., Petition for Rev., Make UC A Good Neighbor v. Regents of Univ. of Cal., 304 Cal. Rptr. 3d 834 (Ct. App. 2023) (No. A165451) (Mar. 28, 2023). 290 See Make UC a Good Neighbor, 304 Cal. Rptr. 3d at 862–63. 2022] In the Name of the Environment Part III 129 CEQA impact.291 The court also recognized that the late night student noise at issue was illegal and subject to both university and police enforcement consequences, but concluded that such enforcement had been ineffective in the past in preventing student social noise, so an unknown additional increment of “mitigation” was required by CEQA to prevent the presumptively ongoing but illegal human activities.292 Unless accepted and overturned by the California Supreme Court, this appellate court decision creates a statewide expansion to CEQA. Because neither the Legislature nor OPR required that the “social noise” of future unbuilt housing be considered an “environmental” impact under CEQA, and there was no legislative debate or APA-compliant public notice and comment process, there is no extant methodology for assessing when, and how, to evaluate and “mitigate” for the “social noise” of future housing occupants in dorms or otherwise. Using conventional CEQA compliance patterns, CEQA practitioners would respond by inventing and unpredictably requiring, for unpredictable agencies and unpredictably for various projects: x a methodology that includes a demographic prediction of new housing occupants; x technical methodologies for evaluating the noise of new housing (likely from commissioning studies of “baseline” conditions of noise in occupied housing, such as colicky infants, children hooting when playing tag or hide-and- seek, teenagers playing music in their bedrooms, families using outdoor picnic and play areas, and the baseline and differential frequency of ambulance visits to homes with older versus younger occupants); x a policy judgment for determining the extent to which noise from housing occupants is “significant” under CEQA, even if otherwise lawful; x requiring housing projects to include “all feasible mitigation measures” or alternatives to avoid such significant social noise impacts, even if that means that housing should not occur next to noise-sensitive sensitive single family homeowners seeking no change in existing ambient noise in “their” environment. 291 See id. at 857–61. 292 See id. at 858, 861. 130 Chapman Law Review [Vol. 26:1 This is not an exaggerated prediction: noise is just part of the cacophony of objections raised to block new housing—in the name of the environment—to existing neighborhoods within the CEQA framework. For example, in one of the several video documentaries produced by The Two Hundred, “A California for Everyone,” a criminal defense lawyer in downtown Redwood City, who described himself as the “Darth Vader” in his anti-housing zealotry to protect his converted single-family home office in the downtown heart of Silicon Valley,293 asserted that future occupants of a Habitat for Humanity affordable housing project would cause adverse noise—as well as public safety harms from, for example, leaving tricycles parked on sidewalks.294 The NIMBY lawyer claimed he had no problem with “those people” [future housing residents] because he represented them in criminal cases.295 Equating Habitat for Humanity residents with criminal defendants is just one of many examples of the underlying racial bias that makes anti-housing CEQA lawsuits a particular challenge in wealthier and Whiter communities, and importing the demographics of new housing occupants into CEQA invites a wealth of other “new” impact arguments (More crime! More loitering! More home-based car repairs!). B. CEQA and The Rule of Law Legislators, major media, and popular opinion have already risen against the use of CEQA by California’s cranky homeowners to block student enrollment in 2022 and to legislatively reverse course on the court’s latest social noise CEQA expansion.296 Short of full statutory exemptions, however, courts have not confined their discretionary authority to decide CEQA cases to the authority they have been granted by the Legislature. For example, the Third District Court of Appeal (sitting in Sacramento) heard a challenge to the construction of a replacement office building addition to the historic capitol in Sacramento.297 An office addition that is decades old was slated 293 See The Two Hundred, A California for Everyone, VIMEO (2017), http://vimeo.com/242696428 [http://perma.cc/UHY7-H78R]. 294 Id. 295 Id. 296 See, e.g., Newsom vows to change CEQA after court ruling uses it to block housing, Long Beach Post (Feb. 27, 2023), http://lbpost.com/news/news/newsom-vows-to-change- ceqa-after-court-ruling-uses-it-to-block-housing/ [http://perma.cc/T68Q-ZV3Q]. 297 See Save Our Capitol! v. Dep’t of Gen. Servs., 303 Cal. Rptr. 3d 761, 771 (Ct. App. 2023); see also Jennifer L. Hernandez & William E. Sterling, California Court of Appeal 2022] In the Name of the Environment Part III 131 to be replaced by a sleek new glass structure—with both bolted onto the historic capitol building.298 The court clearly found aesthetics of the new office building objectionable, since only projects with adverse aesthetics impacts require more analysis under CEQA.299 The Legislature knew their new office project could be sued under CEQA, and they adopted a “buddy statute”— reserved for politically favored projects—that not only streamlined the CEQA judicial review scheduled, but also expressly forbade the court from requiring that the new office project approval be rescinded or that construction be otherwise halted, unless the court found the new office structure caused a significant adverse health and safety impact, or impact to a previously-unknown tribal resource.300 The appellate court ignored the Legislature’s remedy restriction, finding that the Draft EIR failed to adequately depict the new office building and further held that this disclosure failure required full and indefinite cessation of building construction even though only aesthetic and historic (but not health, safety or tribal) CEQA deficiencies were at issue.301 How did courts decide they could ignore the plain language of CEQA statutes, sidestepping administrative law jurisprudence and the Rule of Law, and instead make a policy choice that favored “the environment” over other policy priorities (coupled with an entirely unbounded definition of what “the environment” actually is)? We will examine one more case illustration before we turn to the Rule of Law discussion and the concluding recommendations. The community of Encinitas, in northern San Diego County, boasts an average home price of $1.32 million302—a decrease of 19% from its pre-inflationary high. Quail Botanical Gardens (later transferred to a different operator) operated a visitor center and botanical garden, and sued Encinitas under CEQA for approving the construction of forty new single family homes on a 12.6 acre Decision Frustrates Capitol Annex Plans, HOLLAND &KNIGHT (Feb. 1, 2023), http://www.hklaw.com/en/insights/publications/2023/01/california-court-of-appeal-decision [http://perma.cc/T8EX-DES6]. 298 See Save Our Capitol!, 303 Cal. Rptr. 3d at 773. 299 See id. 300 See CAL.PUB.RES.CODE § 21189.53(a) (West 2018); see also Save Our Capitol!, 303 Cal. Rptr. 3d at 771–72. 301 See Save Our Capitol!, 303 Cal. Rptr. 3d at 805. 302 See Encinitas Housing Market, REDFIN, http://www.redfin.com/city/5844/CA/Encinitas/housing-market [http://perma.cc/6GE3- 5GM5] (last visited Jan. 31, 2023). 132 Chapman Law Review [Vol. 26:1 lot located in its garden.303 At issue was the potential that the homes could obstruct ocean views from the ‘garden’s parking lot.304 The court found that there was no view obstruction impact for adults, but “noted the following: For a child or disabled person in a wheelchair with a line of vision under a height of four feet, such a limitation would result in total obstruction of certain views of the ocean, leaving, at best, limited and amorphous “view corridors” which were not adequately identified or proven, either quantitatively or qualitatively, during the hearings [by the City to consider approval of the 40-home project].305 It is important to note that this jurisprudential pattern of expansive, unpredictable CEQA decisions—including those that are directly at odds with the plain language remedy restrictions of the Legislature—are not partisan. This is not surprising: most Californians, across party lines, strongly support protecting the state’s astounding environment—a popular preference aligned with creatively expanding the scope of “the environment” to be protected by CEQA.306 1. Off the Rails: Leading Court Cases Creating Modern CEQA Jurisprudence CEQA was enacted by a nearly-unanimous, bi-partisan California Legislature in 1970 and signed into law by Governor Reagan.307 CEQA was modelled closely on the National Environmental Quality Act (“NEPA”), enacted a year earlier and signed into law by President Nixon.308 Both statutes were intended to be applied to projects that were directly undertaken by federal (for NEPA) and state or local (for CEQA agencies), and 303 See Quail Botanical Gardens Found., Inc. v. City of Encinitas, 35 Cal. Rptr. 2d 470, 472 (Ct. App. 1994). 304 See id. at 476. 305 See id. 306 See Press Release, Pub. Pol’y Inst. of Cal., The Green State: Californians Want Environmental Protection Despite Economic, Financial Costs (July 22, 2004), http://www.ppic.org/press-release/the-green-state-californians-want-environnmental- protection-despite-economic-financial-costs/ [http://perma.cc/23U5-TYUE]. 307 See Kip Lipper, CEQA at 40: Midlife Crisis or Mission Accomplished, UCDAVISSCH. OF L. (Nov. 2011), http://law.ucdavis.edu/centers/environmental/conferences/2011/CEQA- materials [http://perma.cc/XJ66-KJFB]. 308 See Jennifer Hernandez & Stephanie DeHerrera, National Environmental Policy Act (NEPA) Challenges from 1997-2012 in the First, Ninth, and Eleventh U.S. Circuit Courts of Appeals: Is NEPA Still a National Mandate or Has The Ninth Circuit Created a ‘‘“Baby CEQA”? (July 30, 2014) (unpublished manuscript at 4, 6), http://ssrn.com/abstract=2499600 [http://perma.cc/VSJ7-U5RZ]; see also President Nixon Signing the National Environmental Policy Act of 1969, DOCSTEACH, http://www.docsteach.org/documents/document/nixon-sign-nepa [http://perma.cc/4FVL- RY8D] (last visited Mar. 30, 2023). 2022] In the Name of the Environment Part III 133 they were not intended to be applied to private projects approved by public agencies.309 Both statutes were conceived of as largely procedural mandates to evaluate, disclose, receive public input, and then thoughtfully proceed (or not) with a proposed project with full knowledge of the adverse environmental consequences the project would be expected to cause.310 Both were enacted at a time of bi-partisan consensus—in California following the issuance of an “Environmental Bill of Rights”—that pollution was an acute problem (a river caught fire, a major swath of the California coastline was coated by an oil leak, and choking smog blanketed much of coastal and inland California—including San Francisco Bay and the Central Valley).311 Beautiful natural places were at risk of irreversible damage (Sequoia National Park was slated to become a Disney resort, much of San Francisco Bay was to be filled to accommodate bulging new Bayfront communities, and San Francisco was to be cleaved by a multi-lane freeway bisecting the city and Golden Gate Park in half).312 Nature itself (nearly extinct animal and fish species, rare plants, “undergrounded” former streams, and old growth forests) were all at risk of a morning bulldozer assault.313 For the first few years, CEQA and NEPA continued to track— as did about twenty “baby NEPAs” adopted in various forms by other states.314 Over the course of the next fifty-two years, NEPA and CEQA sharply diverged. NEPA remained a largely procedural statute, imposing mandates that agencies analyze, disclose, consider feedback, and then explain why they are undertaking an action or issuing a project approval that would cause significant adverse environmental impacts.315 Persistent efforts, especially in the Ninth Circuit (including California and other Western states), to convert NEPA into a substantive mandate to avoid and minimize significant adverse impacts whenever feasible, repeatedly failed to gain traction with the federal judiciary generally and the Supreme Court particularly.316 CEQA followed a different pathway, with just a handful of the key early judicial decisions that, in my experience, most shape current CEQA litigation practice and judicial outcomes, as 309 See Hernandez & DeHerrera, supra note 308. 310 See id. at 4, 6. 311 See id. 312 See id. 313 See Lipper, supra note 307. 314 See Hernandez & DeHerrera, supra note 308, at 4–6. 315 See id. at 1–4. 316 See id. 134 Chapman Law Review [Vol. 26:1 noted below in Table 2. It is noteworthy this expansive judicial interpretation of CEQA was launched with the first Supreme Court decision interpreting CEQA, which applied CEQA to a local agency approval of only 134 condominiums at the Mammoth Mountain ski resort.317 Each of these cases fundamentally changed how CEQA works in practice; many involved judicial elevations of CEQA over other statutes and regulations, especially those directing the approval of more housing. None of these judicial changes to CEQA were required based on a plain language interpretation of any statute or regulation; none of these CEQA expansions were informed by any public notice or comment process; and each was decided in a CEQA-only legal silo that fully ignored other legal imperatives, such as civil rights, housing, and transportation laws. The CEQA directives included in each of these cases was subsequently interpreted and applied by project opponents, along with public agency staff, consultants and lawyers defending the adequacy of CEQA compliance, who collectively invented and at unpredictable intervals through subsequent caselaw modified these judicial decisions.318 Such CEQA directives were interpreted using analytical methodologies, significance criteria, and mitigation measures, by a collection of CEQA practitioners in the public sector, private sector consultants, and private sector attorneys. Stakeholder interests not represented by these individual CEQA practitioners—such as the civil rights community focused on housing and jobs—were largely ignored in a CEQA-only practitioner silo that continued to attempt to prepare legally sufficient CEQA documentation with ever- evolving CEQA deficiency decisions by the more than fifty reported appellate court cases decided each year. 317 Friends of Mammoth v. Bd. of Supervisors, 502 P.2d 1049, 1052 (Cal. 1972). 318 The state’s expert CEQA agency, the Office of Planning and Research, was directed by the Legislature to regularly update the CEQA Guidelines, which largely serve as regulations implementing CEQA but are not constraints on further judicial CEQA expansion. See CAL.PUB.RES.CODE § 210083. CEQA Guidelines are infrequently, and only selectively, revised and do not encompass all applicable CEQA requirements as directed in evolving judicial decisions. 2022] In the Name of the Environment Part III 135 TABLE 2: CEQA’S FOUNDATIONAL JURISPRUDENCE 1972 Friends of Mammoth v. Board of Supervisors, 502 P.2d 1049 (Cal. 1972) CEQA’s applicability is expanded exponentially to state and local agency approvals of private project applications, not just projects undertaken by public agencies. The Supreme Court directs judges to use a uniquely broad judicial interpretive rule: CEQA is to be interpreted by the courts so “as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”319 This first Supreme Court decision involved a 184-unit condo project, with a restaurant, near the Mammoth Mountain ski resort in Mono County.320 This first CEQA Supreme Court decision stands in stark contrast to longstanding “canons” of judicial interpretation and enforcement of statutes, which direct the courts to weigh various factors such as legislative intent, consistency with other laws, and textual clarity or ambiguity.321 Since 1970, virtually all modern environmental laws were subsequently enacted, ranging from federal and California versions of the Clean Air and Clean Water Acts, Coastal and Desert Protection Acts, Historic Preservation and Tribal Resource Protection laws, hazardous waste and hazardous materials laws, worker and public health protection laws, earthquake and flood protection laws, wildfire prevention and protection laws, endangered and rare species and habitat protection laws, climate change laws, and scores of sustainable resource protection laws covering groundwater, public and private surface lands blanketing the entire state (except for tribal lands which remain largely under tribal sovereign control), and waters and wetlands.322 The First Appellate District, which ruled against the Regents of the University of California and, for the first time in history, concluded that CEQA required analysis and mitigation measures for illegal “social noise” from undergraduate parties, called out this 1972 quote as the “foremost principle” of CEQA and attributed it to the Legislature’s intent, as reported in the 1972 Supreme Court decision.323 In fact, the Legislature has not enacted this “foremost principle” as the “Legislature’s intent” in 319 See Friends of Mammoth v. Bd. of Supervisors, 502 P.2d 1049, 1056 (Cal. 1972). 320 See id. at 1052. 321 See BRANNON,supra note 271, at 20. 322 See Richard Lazarus & Sara Zdeb, Environmental Law & Politics, INSIGHTS ON L. &SOC’Y (Jan. 5, 2021), http://www.americanbar.org/groups/public_education/publications/ insights-on-law-and-society/volume-19/insights-vol—19—-issue-1/environmental-law—- politics/[http://perma.cc/YV7E-ALP5]; see also CAL.PUB.RES.CODE § 21065 (West 1972). 323 See Make UC a Good Neighbor v. Regents of Univ. of Cal., 304 Cal. Rptr. 3d 834, 843 (Ct. App. 2023). 136 Chapman Law Review [Vol. 26:1 CEQA; instead, CEQA includes several different statutes reciting the enacted intent of the Legislature, which, among other provisions, notes that CEQA is intended to “[e]nsure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions.”324 These and other enacted statements of legislative intent under CEQA are rarely quoted, or invoked, in judicial decisions interpreting CEQA. In 1972, CEQA was a short, general statute, which was of course entirely uninformed by all subsequently-enacted environmental and public health protection statutes.325 The California Supreme Court did, however, expressly recognize that CEQA was simply a statute: the Court’s direction was that CEQA be broadly construed “within the reasonable scope of the statutory language.”326 The 1972 decision has subsequently been relied upon to ignore administrative law jurisprudence. Statutory construction is of more than historical relevance, even as the Legislature has periodically attempted to reign in expansive court interpretations of CEQA with new statutory provisions that continue to be generally, and even expressly, ignored by courts—as discussed below. 1974 No Oil, Inc. v. City of Los Angeles, 529 P.2d 66 (Cal. 1974) An unprecedented new “fair argument” standard of review is established by the California Supreme Court for the less costly, streamlined “Negative Declaration” environmental compliance created by the Legislature in CEQA for projects that have no or negligible adverse impacts on the environment.327 The Supreme Court held that a full EIR, which in practice cannot be completed in less than ten months and often takes two years or longer, and cannot be completed for less than $300,000, often inclusive of technical reports and costs in excess of $1,000,000, is required when a project opponent argues that there is a “fair argument” that there “may” be a single significant adverse environmental impact from a project.328 EIRs remain subject to the “substantial evidence” standard of review, and for practitioners over the next couple of decades, unless an agency is caught in a lie or is openly defiant of a mandatory EIR component like the need to study a reasonable range of alternatives, EIRs are overwhelmingly likely to survive CEQA litigation challenges. CEQA practice evolved into doing an EIR if the project was likely to be sued by someone with money or other resources, even if the project was environmentally benign or beneficial. 324 CAL.PUB.RES.CODE § 21001(d) (emphasis added). 325 See Lipper, supra note 307. 326 Friends of Mammoth v. Bd. of Supervisors, 502 P.2d 1049, 1056 (Cal. 1972). 327 See No Oil, Inc. v. City of Los Angeles, 529 P.2d 66, 75 (Cal. 1974). 328 See id. at 74–75. 2022] In the Name of the Environment Part III 137 1974 San Francisco Ecology Center v. City and County of San Francisco, 122 Cal. Rptr. 100 (1975) CEQA took another sharp deviation from NEPA when the First District Court of Appeal held that CEQA requires that environmental protection be elevated to a “paramount” and urgent concern, “requir[ing] decision-makers to assign greater priorities to environmental values than to economic needs.”329 It is no longer enough to analyze, disclose, receive input, and have to explain why an agency is approving a project that will harm the environment. This and subsequent cases held that agencies may not approve a project unless they first require all “feasible” means of avoiding or minimizing significant adverse impacts, while achieving all or most of the project objectives, through a combination of “mitigation measures” aimed at reducing impacts and “alternative” modified projects and/or project locations.330 1990; 2009 Land Waste Management v. Contra Costa County Board of Supervisors, 271 Cal. Rptr. 909 (1990); Schellinger Brothers v. City of Sebastopol, 102 Cal. Rptr. 3d 394 (2009) The Legislature enacted the Housing Accountability Act (“HAA”) in 1982, which it supported eight years later with 1990 amendments with formal legislative findings that noted that “California housing has become the most expensive in the nation,” a circumstance “partially caused by activities and policies of many local governments which limit the approval of affordable housing, increase the cost of land for affordable housing, and require that high fees and exactions be paid by producers of potentially affordable housing,” and recognized that “[t]he lack of affordable housing is a critical problem which threatens the economic, environmental, and social quality of life in California.”331 After the Legislature’s housing production increase bills from the 1980’s, including acknowledgement that California’s housing supply was not keeping up with its population growth, state housing costs continued to spiral well ahead of national housing costs for the next four decades.332 The national housing costs are now far beyond levels affordable to hard working California families.333 The national average is that median priced homes cost about 4.5 times more than the 329 S.F. Ecology Ctr. v. City & County of San Francisco, 122 Cal. Rptr. 100, 103–04 (1975). 330 See id. at 106–07, 109 n.8 (citing CAL.PUB.RES.CODE § 21100). 331 See Act of Sept. 27, 1982, ch. 1438, § 2; 1982 Cal. Stat. 5483, 5484 (to be codified at CAL.GOV’T CODE § 65589.5); Act of Sept. 28, 1990, ch. 1439, § 1, 1990 Cal. Stat. 6552, 6552 (amending CAL.GOV’T CODE § 65589.5(a)). 332 See Home Price to Income Ratio (US & UK), LONGTERMTRENDS, http://www.longtermtrends.net/home-price-median-annual-income-ratio/ [http://perma.cc/P9X2-YDHF] (last visited Mar. 24, 2023). 333 See id. 138 Chapman Law Review [Vol. 26:1 annual median household income.334 In California, homes cost 9 times more than the annual median income.335 The original version of the HAA required cities and counties to approve housing projects that complied with applicable General Plan and zoning requirements.336 At the same time (and even before) this early 80s-era housing emergency, the Legislature decided that local governments were taking too long to review and approve development projects that complied with local General Plan and zoning requirements, and imposed a strict schedule for completing the application and approval process in the Permit Streamlining Act (“PSA”).337 The same year it enacted the HAA, the Legislature enacted a “deemed “approv[ed]” remedy if an agency missed compliance deadlines, which allowed the applicant to proceed with construction even if a local permit was not issued.338 Development critics objected to both the HAA and PSA, and, in a political compromise, the Legislature decided not to amend CEQA to conform to these new HAA and PSA mandates.339 Courts thereafter concluded that the PSA’s “deemed approved” mechanism could not bypass CEQA compliance.340 Courts also concluded that the time deadlines imposed under the PSA and provided under CEQA, were not effectively enforceable in court.341 Courts also declined to enforce the HAA in situations where a local agency had yet to certify an EIR pursuant to CEQA.342 CEQA’s ardent environmentalist supporters, in anti-housing strongholds like Marin County, had their clear first triumph as the “law that swallowed” housing law in California.343 1987 Friends of Westwood, Inc. v. City of Los Angeles, 235 Cal. Rptr. 788 (Ct. App. 1987) In practice and in most, but not all, local jurisdictions (San Francisco being the most noteworthy exception), CEQA was not generally applied in cities to private construction projects (e.g., for residential and commercial uses) if the project complied with local General Plans,local zoning, and other code requirements; these 334 See Home Price to Income Ratio (US & UK), supra note 332. 335 Id. 336 See § 2, 1982 Cal. Stat. 5484. 337 See Act of Sept. 30, 1977, ch. 1200, § 1, 1977 Cal. Stat. 3993, 3993 (enacting the Permit Streamlining Act, to be codified at CAL.GOV’T CODE § 65920 et seq.); Act of Mar. 1, 1982, ch. 84, § 1, 1982 Cal. Stat. 246, 246 (reforming PSA by amending CAL.GOV’T CODE § 65940); Act of July 7, 1982, ch. 460, § 1, 1982 Cal. Stat. 1905, 1905 (reforming PSA by amending CAL.GOV’T CODE § 65956). 338 See § 1, 1982 Cal. Stat. 1905. 339 See CAL.GOV’T CODE § 65589.5(e) (2023); see also Land Waste Mgmt. v.Contra Costa Cnty. Bd. of Supervisors, 271 Cal. Rptr. 909, 915–16 (Ct. App. 1990). 340 See Land Waste Mgmt., 271 Cal. Rptr. at 916. 341 See, e.g., id.; Schellinger Brothers v. City of Sebastopol, 102 Cal. Rptr. 3d 394, 404 (Ct. App. 2009). 342 See Schellinger Brothers, 102 Cal. Rptr. 3d at 405–06. 343 See id.; Nieves,supra note 21. 2022] In the Name of the Environment Part III 139 projects were considered “by right” and entitled to receive an approval. As land use planning practice evolved, however, local governments began requiring “conditional use permits” (“CUPs”) for more categories of projects, notably including apartment projects. A CUP process requires a city to notify and consider input from the public, and also allows a city to impose discretionary conditions of approval on a project,344 such as specifying the location of a driveway in relation to a street when there was no express or objective zoning standard governing the driveway locations. The City of Los Angeles approved one of the first high rise multi-family housing projects—on Wilshire Boulevard near UCLA—with a CUP that included a few pages of “conditions” the project was required to meet.345 In Friends of Westwood, Inc. v. City of Los Angeles, the Second Appellate District held that the CUP process was a fully “discretionary” decision by the city, did trigger CEQA compliance, and ordered project approvals rescinded pending CEQA compliance.346 Friends of Westwood set the template for CEQA’s applicability to locally authorized housing projects, which are consistent with General Plan and zoning requirements, but are nevertheless first required to complete the CEQA process. Once an agency concludes that a project will result in a “significant impact to the environment,” CEQA authorizes the agency to deny the project application even for projects that comply with the General Plan and zoning requirements.347 1987 was the second big anti-housing “win” for CEQA’s status quo defenders, subjecting even fully compliant housing to extensive study delays and excess costs as each new apartment project (among other housing types) was required to do its own CEQA studies, including studies of “cumulative impacts” that were theoretically supposed to be consistent across a jurisdiction.348 In my experience, CEQA practice in a small but wealthy city (San Francisco, with forty-nine-square miles of entrenched NIMBYs), began to deviate massively from less wealthy cities where population (and housing) was still increasing significantly— especially in the thousands of square miles comprising Los Angeles, Orange, Riverside and San Bernardino counties.349 344 See Zoning and Conditional Use Permits, INST. FOR LOC.GOV’T, http://www.ca- ilg.org/hn-online-guide/zoning-and-conditional-use-permits [http://perma.cc/AVH4-UQM2] (last visited Mar. 20, 2023). 345 See Friends of Westwood, Inc. v. City of Los Angeles, 235 Cal. Rptr. 788, 790 (Ct. App. 1987). 346 See id. at 800–01, 803–04. 347 CAL.CODE REGS. tit. 14, § 15021 (2023). 348 Id. 349 Brian Goggin, Research and Policy: Measuring the Housing Permitting Process in San Francisco, TERNER CTR. FOR HOUS.INNOVATION (July 24, 2018), http://ternercenter.berkeley.edu/research-and-policy/measuring-the-housing-permitting- process-in-san-francisco/ [http://perma.cc/8ST5-PA63]. 140 Chapman Law Review [Vol. 26:1 Any theoretical understanding that CEQA was a state law that applied in a mostly uniform manner to the same kind of project (apartment building) statewide simply confirmed the absence of the practitioner’s familiarity with other jurisdictions. I was fortunate to be the first CEQA attorney to work in-house for the University of California on all of its campus and hospital projects from 1986-1989. While UC campuses tended to be located in wealthier communities, and town-gown conflicts had already been metastasized into CEQA lawsuits near the oldest campuses near the wealthiest neighborhoods, my legal job provided a vivid education in just how differently a hot-button issue (e.g., traffic congestion) was studied and mitigated (or not) under this supposedly uniform state law. 1988 Citizens of Goleta Valley v. Board of Supervisors of Santa Barbara, 801 P.2d 1161 (Cal. 1990) CEQA had previously been held to require that public agencies consider alternative locations for proposed projects which could avoid one or more significant adverse impacts.350 In Goleta, the California Supreme Court held that private owners must also consider alternative locations for a proposed project (at issue was a waterfront hotel in Santa Barbara), even if the applicant did not own or control any other site.351 Because of this new rule, Goleta spawned a cottage industry of specialists who would comb through real estate listings, find potentially suitable sites, document whether or not they were available for purchase, and then either consider them as alternative sites or conclude that no alternative sites were available.352 For CEQA practitioners, Goleta, like all CEQA published court decisions, had an immediate and retroactive effect in that it simply interpreted existing law. Opponents of the hotel project were of course not mollified by a new EIR, and filed a second CEQA lawsuit – which they lost.353 The CEQA compliance process delayed construction for more than a decade. 350 See Citizens of Goleta Valley v. Bd. of Supervisors of Santa Barbara, 801 P.2d 1161, 1169 (Cal. 1990). The Court affirmed the principle that: [A]n EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, or to the location of the project, which: (1) offer substantial environmental advantages over the project proposal. . . and (2) may be “feasibly accomplished in a successful manner” considering the economic, environmental, social and technological factors involved. Id. at 1168 (citations and emphasis omitted). 351 Id. at 1180. 352 See Lennie Rae Cooke & Craig Stevens, CEQA Portal Topic Paper: Alternatives, AEP CEQA PORTAL 6 (Oct. 18, 2018), http://ceqaportal.org/tp/Alternatives.pdf [http://perma.cc/X6XP-MRHY] (providing that offsite alternatives should be considered); see also CAL.CODE REGS. tit. 14, § 15126.26(a) (2023) (providing that “[a]n EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the projec”) (emphasis added). 353 Citizens of Goleta Valley v. Bd. of Supervisors, No. S013629 (Cal. Super. Ct. Dec. 31, 1990). 2022] In the Name of the Environment Part III 141 The result of the Table 2 cases was to make housing—like other routine construction in ordinary communities built in compliance with California’s ever-more-stringent environmental, building, conservation, labor, and public health standards— subject to CEQA. Judges are lawyers, and most lawyers find the idea of a short delay to obtain a more comprehensive understanding to be a routine and beneficial part of law practice. CEQA also has the beguiling feature of being widely understood to just require “more study”—after all, agencies could still re-approve a project once they “fully complied” with CEQA. The consequences of those harmed by delayed projects, and projects that became more costly or were derailed entirely by delays that coincided with shifting economic and political conditions, are often not part of the “CEQA administrative record” at issue in CEQA lawsuits; even if included in the record, they would likely be considered subordinate or irrelevant to the overarching 1972 California Supreme Court directive that CEQA should be broadly interpreted by the courts to protect the environment. 2. 1993 and Beyond: Legislature’s Largely Failed Attempts to Restore Administrative Law Jurisprudence to CEQA CEQA in practice is different from the CEQA lawsuit briefs about the parsed merits of any particular sub-argument involving a sub-issue of one of the scores of impact categories that have been sufficiently addressed in the CEQA process. The practical, political, economic, and policy implications of the vast expanse of CEQA through CEQA jurisprudence was accordingly considered in the Legislature, which responded in several rounds, but most broadly in 1993 with statutory amendments to CEQA designed to bring greater predictability to CEQA.354 With continued underproduction of housing, along with high profile CEQA lawsuits against infrastructure and educational projects, an environmental leader and hero in the Legislature, Senator Byron Sher of Palo Alto (also a Stanford Law School professor) led a two-bill, generally bi-partisan effort to reform CEQA in 1993 with a series of statutory changes designed to accelerate the CEQA compliance schedule, reduce compliance costs, and make judicial outcomes more predictable.355 In my opinion, this 1993 Legislation was the only year, in fifty years, 354 See Dills, Allen, Sher California Environmental Quality Act Revision Act of 1993, ch. 1130, 1993 Cal. Stat. 6315; Act of Oct. 10, 1993, ch. 1131, 1993 Cal. Stat. 6334. 355 See id. 142 Chapman Law Review [Vol. 26:1 where broadly applicable CEQA reforms were not politically killed by CEQA’s most powerful status quo defenders in the State Building and Construction Trades Council (“Building Trades”) and environmental advocacy groups. For example, the Legislature amended CEQA to require that there must be “substantial evidence” in support of a “fair argument” that a project would have a one or more significant adverse environmental impacts, in an effort (largely unsuccessful) to make negative declarations more defensible.356 In a fifteen-year study of CEQA lawsuit outcomes, nearly sixty percent of negative declarations357 failed to withstand judicial scrutiny. Courts concluded that even air conditioner noise was enough to invalidate a negative declaration and require an EIR.358 Courts also concluded that even non-expert opinion, about noise from trucks, met the “substantial evidence of a fair argument” standard.359 Also in 1993, the Legislature attempted to fix the “fit the punishment to the crime” CEQA remedy problem.360 In law school, and in civil litigation, adequately analyzing and mitigating ninety- eight percent of impacts covered in two hundred pages of EIR text, supported by five hundred pages of technical appendix, could earn an “A” grade and meets all standards of review normally applied by civil courts (preponderance of the evidence, substantial evidence, etc.). Under CEQA jurisprudence, in contrast, a judicial conclusion that the agency fell short of full CEQA compliance for just two percent of the analysis (just a handful of pages comprising subparts of one or two environmental impact topics) most commonly results in the judicial remedy of rescinding all project approvals and re-doing the EIR process to fix the deficient analysis in a process that takes a year or longer. The Legislature’s fix was directing the courts to order “severance” so whatever portion of a project that was not affected by the deficiency could proceed without further delay.361 One appellate court district steadfastly 356 See CAL.PUB.RES.CODE § 21082.2 (West 2023). 357 Hernandez, In the Name of the Environment I: 2010-2012, supra note 22, at 4. 358 See Citizens for Responsible & Open Gov’t v. City of Grand Terrace, 73 Cal. Rptr. 3d 202, 216 (Ct. App. 2008). 359 See City of Arcadia v. State Water Res. Control Bd., 38 Cal. Rptr. 3d 373, 390, 393 (Ct. App. 2006). 360 See CAL.PUB.RES.CODE § 21168.9 (West 2023). 361 See id. § 21167.1. 2022] In the Name of the Environment Part III 143 declines to authorize any severance remedies,362 and the others do —but trial courts are split and the results are unpredictable. Notwithstanding this severance remedy directive, the direct practical consequence of being targeted by a CEQA lawsuit is being exposed to a potential judicial rescission remedy—enough to dissuade most lenders, investors, and grantors in funding a project while a lawsuit is pending, without regard to the lawsuit’s merits, and without any of the normal safeguards (including bond requirements) of judicially-imposed preliminary injunctions pending the merits decisions. Section 21005(b) was also added in 1993: “It is the intent of the Legislature that, in undertaking judicial review [in CEQA lawsuits], courts shall continue to follow the established principle that there is no presumption that error is prejudicial.”363 Courts largely declined to give this statute any practical effect, subsequently holding, for example, that a disclosure omission is prejudicial in precluding informed public participation,364 that the burden falls on the lead agency to demonstrate that an error is not prejudicial,365 and most significantly “‘when an agency fails to proceed’ as required by CEQA, harmless error analysis is inapplicable.”366 One important California Supreme Court decision did conclude that a transit project EIR which failed to analyze any environmental impacts against the present-day “baseline” of existing environmental conditions, and thereby failed to include any meaningful assessment of construction impacts such as noise, dust, and air pollution, was erroneous—but that the public had a common sense understanding of construction impacts, so meaningful public engagement could occur even in the absence of an EIR analysis of these impacts.367 Finally, the Legislature enacted section 21083.1 of CEQA, which reads in full: It is the intent of the Legislature that courts, consistent with generally accepted rules of statutory interpretation, shall not 362 See Ctr. for Biological Diversity v. Cal. Dep’t of Fish & Wildlife, 226 Cal. Rptr. 3d 432, 436–38 (Ct. App. 2017); San Bernardino Valley Audubon Soc’y v. Metro. Water Dist. of S. Cal., 109 Cal. Rptr. 2d 108, 113–14 (Ct. App. 2001); POET, LLC v. Cal. Air Res. Bd., 160 Cal. Rptr. 3d 69, 122–24 (Ct. App. 2013); King & Gardiner Farms, LLC v. County of Kern, 259 Cal. Rptr. 3d 109, 174–76 (Ct. App. 2020). 363 CAL.PUB.RES.CODE § 21005(b). 364 See City of Maywood v. L.A. Unified Sch. Dist., 145 Cal. Rptr. 3d 567, 587 (Ct. App. 2012). 365 See N. Coast Rivers All. v. Kawamura, 196 Cal. Rptr. 559, 576–77 (Ct. App. 2015). 366 State Water Res. Control Bd. Cases, 39 Cal. Rptr. 3d, 189, 228 (Ct. App. 2006). 367 See Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth., 304 P.3d 499, 516–18 (Cal. 2013). 144 Chapman Law Review [Vol. 26:1 interpret this division or the state guidelines adopted pursuant to Section 21083 in a manner which imposes procedural or substantive requirements beyond those explicitly stated in this division or in the state guidelines.368 This statute was cited in two Third District Court of Appeal decisions, including one that noted courts are “constrained to reject” interpretations of CEQA that are “beyond the explicit terms of the act”—even if accepting the interpretation would “arguably afford greater protection to the environment.”369 As noted above, in my experience, the 1993 Session was the last time that the Legislature attempted to reform CEQA using traditional statutory amendment tools: new and amended statements of legislative intent, legislative directives regarding the absence of prejudicial error, legislative directives to allow portions of the project not affected by an analytic deficiency to proceed with a severance remedy, and—more importantly—a clear direction that courts no longer construe CEQA “broadly to protect the environment” but instead avoid construing CEQA “in a manner which imposes procedural or substantive requirements beyond those explicitly stated” in the CEQA statute or guidelines. None of these statutes resulted in any meaningful change to CEQA jurisprudence. CEQA lawsuits are filed in a form of litigation proceeding called a “writ of mandamus”“—an old common law term that differs from ordinary civil disputes initiated by a “complaint.”370 Writs seek to compel agencies to undertake, or refrain from undertaking, an action.371 Although a writ of mandamus is entirely ordinary in CEQA, in U.S. law it is considered an “extraordinary writ” that “is not [issued as] a matter of right, nor governed entirely by fixed rules, but is within the ‘sound’ or ‘wise’ discretion of the court[s].”372 In contrast to ordinary administrative law jurisprudence, California courts have demonstrated no appetite to have their 368 CAL.PUB.RES.CODE § 21083.1 (West 2023). 369 Picayune Rancheria of Chukchansi Indians v. Brown, 178 Cal. Rptr. 3d 563, 573 (Ct. App. 2014); see also W. Placer Citizens for an Agric. & Rural Env’t v. County of Placer, 50 Cal. Rptr. 3d 799, 806 (Ct. App. 2006). 370 See STEPHENL. KOSTKA &MICHAEL H. ZISCHKE, PRACTICEUNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT § 23.2 (2d ed. 2008). 371 See Writ, BLACK’S LAWDICTIONARY (11th ed. 2019) (defining a “writ” as “[a] court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act”). 372 John Till, Extraordinary Writs – Discretion or Matter of Right?, 15 HASTINGS L.J. 218, 218 (1963). 2022] In the Name of the Environment Part III 145 discretion boxed in by statutes or rules in CEQA jurisprudence, as shown in Table 3: TABLE 3: POST-1993 CEQA JURISPRUDENCE:THE LEGISLATIVE CEQA REFORM WAVE CRASHES INTO CEQA JURISPRUDENCE INCLUDING THE JUDICIAL DISCRETION INHERENT IN EXTRAORDINARY WRIT LAWSUITS 1997 Mountain Lion Foundation v. Fish & Game Commission, 939 P.2d 1280 (Cal. 1997) Courts rejected newly-enacted statutory constraints on CEQA, again affirming that CEQA prohibits agencies from approving a project causing a significant adverse impact if there are “feasible alternatives or mitigation measures” available to substantially lessen that effect.373 2001 Berkeley Keep Jets Over the Bay Committee v. Port of Oakland, 111 Cal. Rptr. 2d 598 (Ct. App. 2001) EIRs, formerly largely defensible in court, become newly vulnerable with an expansive new application of the “prejudicial abuse of discretion” standard (previously used to review an agency’s compliance with CEQA’s procedure) to evaluate the substantive adequacy of an agency’s analysis of impacts.374 The court found that the Port did use a protocol approved by an expert agency to evaluate toxic air emissions from an airport expansion project.375 The court further found that the Port knew about and was advised that more recent draft protocols had been developed but not yet adopted, but were, in the opinion of a staff member of the expert agency, the “best available data” and should be used.376 The Port continued to use the approved protocol, while responding on the record to arguments that the newer draft protocol should be used and while adopting nine mitigation measures to reduce toxic air emission exposures at the airport project.377 The appellate court concluded that the Port erred in not using the new draft protocol endorsed by staff of the expert agency and invalidated the EIR.378 This decision reverses prior court precedent of deferring to agency conclusions on factual issues when supported by substantial evidence in the record even in an EIR context, as well as longstanding case law that disagreements among experts are resolved in favor of the CEQA lead agency. This decision launches a new era of challenges to the analytical 373 Mountain Lion Found. v. Fish & Game Comm’n, 939 P.2d 1280, 1298 (Cal. 1997). 374 Berkeley Keep Jets Over the Bay Comm. v. Bd. of Port Comm’rs, 111 Cal. Rptr. 2d 598, 606 (Ct. App. 2001). 375 See id. at 613–15. 376 Id. at 613–15. 377 See id. at 613–14. 378 See id. at 615. 146 Chapman Law Review [Vol. 26:1 sufficiency of EIRs: courts began to substitute their own judgment for the agency’s factual determinations by an expansive application of the “abuse of discretion” standard formerly applied to procedural violations of CEQA. 2002 Communities for a Better Environment v.California Resources Agency, 126 Cal. Rptr. 2d 441 (Ct. App. 2002) Amendments to CEQA’s implementing regulations, the CEQA Guidelines that attempted to integrate more than fifty major environmental protection laws (clean air and water, protected species and resources, etc.) enacted since 1970 were rejected by the Third District as inconsistent with the “fair argument” standard of review and other CEQA precedents.379 When, where, and what CEQA requires in “additional” evaluation and/or mitigation beyond compliance with applicable environmental and public health statutes and regulations remains entirely unpredictable in CEQA litigation. These regulatory amendments to CEQA, which are subject to the APA, followed from several court decisions confirming that compliance with an applicable environmental and/or health protection standard did satisfy the “substantial evidence” standard of review in CEQA for showing that an impact was reduced to a less than significant level.380 Both Sundstrom and Leonoff were decided under the far less deferential negative declaration “fair argument” standard.381 However, the Third District rejected amendments to the Guidelines codifying these earlier published judicial decisions, largely based on an expansive reading of the “fair argument” standard of review applicable only to negative declarations (and not environmental impact reports or exemption determinations).382 It is also noteworthy that the Third District decision completely ignores the “non-duplication” criteria of the APA, which requires that regulations not duplicate other laws or regulations and is itself an ordinary canon of administrative law jurisprudence that warrants the full integration of the CEQA Guidelines with the now thousands of environmental, safety, and health protection laws and regulations that have become effective since 1970. 379 See Cmtys. for a Better Env’t v. Cal. Res. Agency, 126 Cal. Rptr. 2d 441, 446 (Ct. App. 2002), overruled in part by Berkeley Hillside Pres. v. City of Berkeley, 343 P.3d 834 (Cal. 2015). 380 See Leonoff v. Monterey Cnty. Bd. of Supervisors, 272 Cal. Rptr. 372, 382 (Ct. App. 1990) (holding that compliance with hazardous materials management laws was sufficient to conclude that hazardous materials impacts are less than significant); Sundstrom v. County of Mendocino, 248 Cal. Rptr. 352, 360 (Ct. App. 1988). 381 See Leonoff, 272 Cal. Rptr. at 382; Sundstrom, 248 Cal. Rptr. at 360. 382 See Cmtys. for a Better Env’t v. Cal. Res. Agency, 126 Cal. Rptr. 2d 441, 446 (Ct. App. 2002), overruled in part by Berkeley Hillside Pres. v. City of Berkeley, 343 P.3d 834 (Cal. 2015). 2022] In the Name of the Environment Part III 147 2005 Californians for Alternatives to Toxics v. Department of Food & Agriculture, 38 Cal. Rptr. 3d 638 (Ct. App. 2005); Protect the Historic Amador Waterways v. Amador Water Agency, 11 Cal. Rptr. 3d 104 (Ct. App. 2004) Express judicial rejection of the 1993 statutory standard (Section 2005(b)) that errors and omissions in CEQA documents is presumed to be non-prejudicial. First the Fourth District, and then most others, held that the “omission” of “important environmental information” is “presumed to be prejudicial error.”383 Courts differ as to what constitutes “important environmental information” and why. Some courts (including the California Supreme Court) for some projects continue to conclude that the omission of information is not necessarily prejudicial.384 These inconsistent court conclusions about whether “missing” information or analysis is prejudicial have introduced greater uncertainty to judicial outcomes than existed pre-1993 under the former “substantial evidence” and “fair argument” standards of review. For challenged EIRs, CEQA lawsuits always allege insufficiently-detailed disclosure, analysis, and/or mitigation. The judicial outcome is, as acknowledged by learned University of California environmental law professors, unknowable.385 2006; 2011; 2015; 2023. While CEQA political rhetoric often pits “environmentalists” against “developers,” the victims of CEQA jurisprudence are far more likely to be those not served by unbuilt facilities and “the environment” not located immediately adjacent to those forced to live farther away from campus. California college campus systems, especially the University of California and Cal State University systems, lost a string of CEQA lawsuits based on CEQA mandates newly identified in court decisions decided after the 1993 CEQA reform wave.386 UC Berkeley CEQA lawsuits are in the news, but anti-campus CEQA lawsuits resulting in blocked campus enrollment growth and development have long been a staple in CEQA jurisprudence, as noted in the following three examples: 383 See Protect the Historic Amador Waterways v. Amador Water Agency, 11 Cal. Rptr. 3d 104, 108 (Ct. App. 2004); see, e.g., Save Cuyama Valley v. County of Santa Barbara, 153 Cal. Rptr. 3d 534, 545 (Ct. App. 2013); State Water Res. Control Bd. Cases, 39 Cal. Rptr. 3d 189, 233 (Ct. App. 2006); Sierra Club v. County of Napa, 19 Cal. Rptr. 3d 1, 5 (Ct. App. 2004). 384 See, e.g., Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth., 304 P.3d 499, 504–05 (Cal. 2013). 385 See generally KOSTKA&ZISCHKE,supra note 371, §§ 13.13–13.53. 386 See, e.g., City of Marina v. Bd. of Trs. of California State Univ., 138 P.3d 692, 707 (Cal. 2006); City of San Diego v. Bd. of Trs. of California State Univ., 135 Cal. Rptr. 3d 495, 522 (Ct. App. 2011); City of Hayward v. Bd. of Trs. of California State Univ., 195 Cal. Rptr. 3d 614, 637 (Ct. App. 2015); see generally City of San Diego v. Bd. of Trs. of California State Univ., 352 P.3d 883 (Cal. 2015). 148 Chapman Law Review [Vol. 26:1 Monterey Bay State University must mitigate impacts to local infrastructure and public services due to campus expansion, even if it has no funding to do so.387 Cost-sharing of infrastructure improvements in mitigation is not rendered infeasible by uncertainty in the local agency’s ability to obtain its matching share of necessary funding.388 San Diego State must contribute funds for off-site mitigation of environmental effects of campus expansion, even if the Legislature has declined to appropriate funds to do so. San Diego State must tap other resources, such as alumni, for funding or consider redirecting student enrollment to other campuses.389 East Bay (Hayward) State University must analyze and mitigate impacts from increased student use of regional park trails.390 “Social Noise” from future undergraduate residents of unbuilt dorms was added to CEQA as an environmental impact.391 2016 Center for Biological Diversity v.Department of Fish & Wildlife, 361 P.3d 342 (Cal. 2015) Housing projects must consider greenhouse gas emission impacts from new residents in relation to state and global climate science, even though future residents could have a greater impact on greenhouse gas emissions if the challenged housing project is denied and they live somewhere else.392 The dissenting Justice opines that CEQA is not a population control statute; his colleagues in this and other opinions agree that CEQA is not a population control statute.393 In its recently approved (December 2022) “Scoping Plan” to achieve California’s greenhouse gas reduction targets, CARB reported on an academic study commissioned by CARB and the California EPA to evaluate how CEQA affects housing production.394 Although the study looked at fewer than twenty 387 City of Marina, 138 P.3d at 706. 388 Id. 389 City of San Diego v. Bd. of Trs. of California State Univ., 352 P.3d 883, 885 (Cal. 2015; City of San Diego v. Bd. of Trs. of California State Univ., 135 Cal. Rptr. 3d 495, 522 (Ct. App. 2011). 390 City of Hayward, 195 Cal. Rptr. 3d at 637. 391 See Make UC A Good Neighbor v. Regents of Univ. of Cal., 304 Cal. Rptr. 3d 834 (Ct. App. 2023). 392 Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, 361 P.3d 342, 350 (Cal. 2016). 393 See id. at 367 (Chin, J., dissenting). 394 See CAL.AIRRES.BD.,2022SCOPING PLAN APPENDIX D–LOCALACTIONS 19–20(2022), http://ww2.arb.ca.gov/sites/default/files/2022-11/2022-sp-appendix-d-local-actions.pdf [http://perma.cc/WK2Q-XWGM]; see also MOIRA O’NEILL ET AL., CAL.AIR RES.BD., EXAMINING ENTITLEMENT IN CALIFORNIA TO INFORMPOLICY AND PROCESS:ADVANCING SOCIAL EQUITY IN HOUSING DEVELOPMENT PATTERNS,CALIFORNIA AIR RESOURCES BOARD 83 (2022), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3956250 [http://perma.cc/FFE9-JX7A] 2022] In the Name of the Environment Part III 149 jurisdictions, in contrast to the comprehensive statewide analysis included in this study, the authors reported that two- thirds of anti-housing CEQA lawsuits claimed an alleged inadequacy of the project’s compliance with GHG provisions of CEQA, and the even newer “Vehicle Miles Traveled” climate metric impact—consisting of estimated future use post- construction of residential automobile/pickup truck use, even by a carpool or electric car.395 CARB has not created clear, feasible, or lawful standards for how new housing is supposed to mitigate GHG and VMT impacts—an APA violation.396 For example, a competitor’s 2020 CEQA lawsuit against a veterans outpatient health clinic in Bakersfield alleged that the CEQA documentation prepared by the city insufficiently considered state GHG requirements.397 2015; 2017; 2018. The greatest source of legal uncertainty in more recent judicial opinions derives from increasingly common rejection of the “substantial evidence” standard of review for the analytical environmental content of EIRs. Under the substantial evidence standards, courts defer to lead agency factual determinations as to the appropriate impact assessment methodology, impact significance criteria, and mitigation measure effectiveness when these are supported by substantial evidence in the record. The far less deferential “prejudicial abuse of discretion” standard of review – formerly used mostly to enforce CEQA’s procedural requirements – is now far more commonly applied to judicially reject an agency’s analytical and mitigation determinations. In practice, this means that courts are asked to conclude that an EIR is fatally flawed because the agency did not do an analysis of a particular sub-topic (or sub-topic of a sub-topic) in the Draft EIR itself not simply in response to comments in a Final EIR, and not staff report or hearing responses to “late hit” comments submitted well after CEQA’s public comment periods. (providing that of the small percentage of projects studied that were litigated, approximately two-thirds were challenges based on claimed deficiencies in their GHG or VMT analysis). 395 See CAL.AIRRES.BD.,2022SCOPING PLAN APPENDIX D–LOCALACTIONS 19–20(2022), http://ww2.arb.ca.gov/sites/default/files/2022-11/2022-sp-appendix-d-local-actions.pdf [http://perma.cc/WK2Q-XWGM]. 396 See JENNIFER HERNANDEZ,CAL.CTR. FOR JOBS & THE ECON., ANTI-HOUSING CEQA LAWSUITS FILED IN 2020 CHALLENGE NEARLY 50% OF CALIFORNIA’S ANNUAL HOUSING PRODUCTION 4 (2022), http://www.hklaw.com/-/media/files/insights/publications/ 2022/08/082222fullceqaguestreport.pdf?la=en&rev=9f9b36899f9546fbad1bbac3ca792281 [http://perma.cc/L5V2-2YB5]. 397 See Jennifer Hernandez, California’s Environmental State Agencies Are Converting CEQA’s Anti-Project Howitzer into a Neutron Bomb, DAILY J. (Aug. 25, 2022), http://www.hklaw.com/-/media/files/insights/publications/2022/08/californiaenvironmental stateagenciesconvertingceqaantiprojecthorwitzer.pdf?la=en&rev=c2c1dc6bb6fd4163b9bf9 8c70ad419e5 [http://perma.cc/JP5Q-8VTC]. 150 Chapman Law Review [Vol. 26:1 Examples of this CEQA jurisprudential trend are decisions that an EIR is flawed because it did not include what a court later decides is the best practically available scientific information. For example, the San Diego Association of Governments failed to comply with CEQA by using a methodology containing “data gaps” to estimate the amount of existing farmland (and therefore the project’s impacts to existing farmland), even though the agency explained why its methodology was sufficient and appropriate398 Similarly, the California Supreme Court concluded that Fresno County committed prejudicial error by not considering in the EIR for a mixed use housing project that the localized toxicity of ambient air pollutants produced primarily from project traffic. Fresno County, as well as two expert state air quality agencies, informed the Court that the impacts of these ambient pollutants that caused regional smog could not be accurately assessed on a localized level;. The Court concluded that even if the lead and expert agencies were correct, the EIR was flawed for not explaining the an analysis that was not and could not have been done.399 In 2015, the California Supreme Court concluded that even though impacts to an endangered fish were analyzed and mitigated in an EIR for another mixed use residential project, the EIR was nonetheless flawed because it omitted an analysis of impacts to the juvenile stage this fish. The same Court concluded that the project’s compliance with a statewide target for reducing greenhouse gas emissions was an insufficient CEQA impact significance standard, and identified—but did not endorse—four potential “paths” for completing a legally- sufficient CEQA analysis of greenhouse gas impacts.400 These Table 3 examples are of judicially-created, presumptively mandatory CEQA compliance requirements for which there are no “express” requirements in the CEQA statute or Guidelines requiring analysis or mitigation, and which, accordingly, should not have been found to be prejudicial error gaps under the plain language of Section 21083.1 of CEQA. Absent judicial enforcement of Section 21083.1, CEQA practitioners and agencies working on CEQA documents— particularly those involving well-funded and entrenched project opponents—are routinely slammed with scores of “studies” purporting to show some CEQA impact or another, each hoping 398 See Cleveland Nat’l Forest Found. v. San Diego Ass’n of Gov’ts, 225 Cal. Rptr. 3d 591, 619 (Ct. App. 2017). 399 See Sierra Club v. County of Fresno, 431 P.3d 1151, 1169 (Cal. 2018). 400 See Ctr. for Biological Diversity v. Dept. of Fish & Wildlife, 361 P.3d 342, 356–57 (Cal. 2015). 2022] In the Name of the Environment Part III 151 that a judge (or group of appellate justices) will conclude that even the most elaborate and costly EIR has a fatal substantive analytical flaw. These “best scientific data” open-ended judicial precedents impose a vastly uncertain CEQA compliance obligation on agencies, without Legislative or APA-compliant regulatory authority. For example, a recent study of greenhouse gas emissions and climate change reported its review of “88125 climate-related papers published since 2012.”401 The study searched “the Web of Science [online database] for English language ‘articles’ added between the dates of 2012 and November 2020 with the keywords ‘climate change’, ‘global climate change’ and ‘global warming.’”402 The study’s authors found that, over an eight year period, ten thousand scientific articles per year were published on GHG and climate change in English alone.403 No city planner reviewing an apartment project application can sort through and identify the “best available scientific data” in this study tsunami, to accurately guess at what must be included in an EIR. Greenhouse gas impacts—and global climate change—are CEQA topics especially vulnerable to CEQA lawsuits. For example, in another 2015 case, Friends of Highland Park v. the City of Los Angeles (an unpublished appellate court decision reviewing a twenty-condo, fifty-affordable housing unit project in the Highland Park Transit Village of Los Angeles), the court concluded the project’s greenhouse gas emissions analysis was insufficient and ordered rescission of this small housing project.404 CEQA litigation frequently involves disputes over whether the lead agency used best available scientific data, with courts offering some legal refuge (if an EIR is completed) for studies prepared by a qualified expert, even if other experts disagree. Experts that do not specifically address and rebut the sometimes hundreds of studies lobbed into the lead agency as “comments” on an EIR risk the wrath of a court, however, if opposition studies are not also rebutted by the agency’s expert in the EIR record. This war of experts, on multiple topics, can consume many months and any hundreds of thousands of dollars—all to answer this question: 401 See Mark Lynas et al., Greater Than 99% Consensus on Human Caused Climate Change in the Peer-Reviewed Scientific Literature, 16 ENV’TRSCH.LETTERS 1, 1 (2021). 402 Id. at 2. 403 See id. 404 See Friends of Highland Park v. City of Los Angeles, No. B261866, 2015 WL 6736840, at *9, *10, *11 (Ct. App. Nov. 4, 2015). 152 Chapman Law Review [Vol. 26:1 does building new homes for Californians, in compliance with the most stringent environmental standards in the world, cause significant adverse climate change impacts? In its recent Scoping Plan, the state’s leading climate agency—the California Air Resources Board—citing to a study prepared by UC Berkeley scholars—acknowledged that greenhouse gas emissions, and the new regulatory climate-based “vehicle “miles traveled” impact, are in dispute in two-thirds of the anti-housing CEQA lawsuits considered in that study.405 3. The Legislature Turns “Transactional” – Favored or Priority Projects Granted Statutory Exemptions from CEQA, Less Politically Powerful Projects Left to Flounder in Uncertainty The Legislature did not show any further appetite for directing the courts on how CEQA should be interpreted, and instead responded to an ongoing but increasingly notorious practice of enacting more than one hundred statutory exemptions from CEQA, either for specific projects (prisons,406 the 1982 LA Olympics407 in their entirety), or for categories of projects (pipelines in public streets less than one mile long408), the adoption of Groundwater Sustainability Plans,409 and the allocation of new housing planning and approval mandates to cities and counties under the Regional Housing Needs Assessment laws.410 The reach and effectiveness of these exemptions was “transactional” politically: a strong political stakeholder, with support or non-opposition from other political stakeholders, got an unambiguous exemption. Exemptions for the poor (affordable and farmworker housing), the less politically powerful (bike path users), and the destitute (homeless shelters) got political bragging rights but highly restrictive, and time- limited, exemptions.411 405 See CAL.AIR RES.BD., supra note 394, at 19–20; see also MOIRA O’NEILL-HUTSON ET AL.,supra note 394, at 5, 83. 406 See CAL.PUB.RES.CODE § 21080.03 (West 2023). 407 See id. § 21080(b)(7). 408 See id. § 21080.21. 409 See Ellen M. Moskal & Kelley M. Taber, SGMA Implementation and CEQA: Is Now the Time to Reconsider a Statutory Exemption?, SOMACHSIMMONS&DUNN (Jan. 10, 2023), http://somachlaw.com/policy-alert/sgma-implementation-and-ceqa-is-now-the-time-to- reconsider-a-statutory-exemption/ [http://perma.cc/3GGK-Y7D5]. 410 See CAL.GOV’T CODE § 65584(g) (providing a partial list of statutory exemptions, which can also be found in CAL.CODEREGS. tit. 14 § 15260 et seq.). 411 See CAL.PUB.RES.CODE § 21080.25(b)(1) (exemption for pedestrian bike paths); id. § 21080.27(b)(1) (exemption for City of Los Angeles emergency shelters or supportive housing). 2022] In the Name of the Environment Part III 153 The Legislature also directed the Governor’s OPR to promulgate CEQA Guidelines, adopted as regulations, which are required to identify categories of projects that are exempt from CEQA if they meet all categorical exemption regulatory criteria, and there are no “unusual circumstances” that cause an otherwise environmentally benign project to nevertheless cause a significant adverse environmental impact.412 Construction of a code-compliant single family home on a single family lot is a Class 3 exemption, and in the longest known judicial dispute involving a categorical exemption, one Berkeley home was caught in multiple court proceedings for eleven years.413 There are thirty-three classes of categorical exemptions.414 There is also a “common sense” regulatory exemption for agency actions which could not conceivably result in any change to the physical environment that could be environmentally significant,415 which was originally explained to the author as the need to avoid CEQA for a state agency deciding whether to stock Coke or Pepsi in its vending machines. The Legislature also enacts non-codified, one-time CEQA exemptions in annual budget trailer bills.416 These are typically enacted in a hurried process to meet budget deadlines when failure to do so means legislators aren’t paid, and they typically involve no CEQA policy committee hearings or other meaningful public disclosure or debate. CEQA compliance can also be avoided if the Governor declares an emergency, albeit with less legal certainty for projects that are approved or funded, but not fully constructed, during an emergency.417 The challenge posed by “transactional” exemptions is that the housing and infrastructure needed by ordinary people does not have the well-funded and well-organized special interest stakeholder sponsors skilled at “making a deal” to avoid CEQA for their particular project or category of projects. Vigorous defense of the CEQA status quo by two of Sacramento’s most powerful constituencies—Building Trades and 412 See id. § 21080(b)(9); see also id. § 21084. 413 See Berkeley Hills Watershed Coal. v. City of Berkeley, 243 Cal. Rptr. 3d 236, 239– 41 (Ct. App. 2019). 414 See CAL.CODEREGS. tit. 14, §§ 15300–333 (2023). 415 Id. § 15061. 416 See, e.g., ASS’N OF ENV’T PROS., 2022 CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) STATUTE AND GUIDELINES 1 (2022), http://www.califaep.org/docs/2022_CEQA_ Statue_and_Guidelines.pdf [http://perma.cc/V87B-WFJ6]. 417 See CAL.CODE REGS.tit. 14, § 15268; CAL. PUB.RES.CODE §§ 21080(b)(2)–(4), 21080.33, 21083. 154 Chapman Law Review [Vol. 26:1 environmentalists—also made Legislators wary of touching “third rail” CEQA reforms. Even a once-ardent supporter of CEQA reforms—who led the Senate chamber before becoming the Mayor of Sacramento—settled for a “Kings Arena” buddy bill exemption; the bill was inclusive of remedy restrictions forbidding the court from stopping the project and was introduced and approved in the last two days of the legislative session.418 Other parts of that Legislation, crafted exclusively by environmentalists and Building Tradesthat were heralded as meaningful pro-housing CEQA reforms, were too narrow or otherwise burdensome to have much practical effect in the real world, consistent with the policy objective of these CEQA status quo defenders. Courts generally uphold CEQA exemptions, especially statutory exemptions. Courts do not, in this context, interpret CEQA expansively to defeat an exemption for a project that would cause environmental harm: the sole legal question is whether the challenged project meets the exemption criteria.419 Categorical exemptions are subject to a less deferential review process and must be “narrowly construed” to effectuate the judiciary’s broad interpretation of CEQA.420 4. Legislature v. CEQA Jurisprudence CEQA amendments by the Legislature evolved from enacting “transactional” full statutory exemptions from CEQA for specific, politically favored projects that have satisfied environmental, labor and local government stakeholders, to enacting a statutory program for “Environmental Leadership Projects” (“ELP”) that meet eligibility and political stakeholder acceptance criteria as approved by the Governor.421 ELP projects are entitled to “streamlined” judicial review, completing trial and appellate court proceedings in a total of 270 days.422 Few ELP projects are approved, fewer are challenged, and none meet the 270 day 418 See Justin Ewers, CEQA Roundup: A Win for the Kings and Steinberg. But for CEQA Reform?, CAFWD (Sept. 13, 2013), http://cafwd.org/news/ceqa-roundup-a-win-for- the-kings-and-steinberg-but-for-ceqa-reform/ [http://perma.cc/8F3P-UMLR]. 419 See Napa Valley Wine Train, Inc. v Pub. Utils. Comm’n, 787 P.2d 976, 982–84 (Cal. 1990), abrogated by statute, CAL.PUB.RES.CODE § 21080.04 (2020). 420 See Dehne v. County of Santa Clara, 171 Cal. Rptr. 753, 761–62 (Ct. App. 1981). 421 See CAL. PUB.RES.CODE §§ 21178–21189.3. 422 See id. § 21185. 2022] In the Name of the Environment Part III 155 deadline, but they do come close based on new Judicial Rules of Court for ELP projects.423 Several of these transactional legislative dispensations expressly limit judicial discretion, forbidding judges from imposing any remedy to stop project construction, or require rescission of project approvals, except under prescribed circumstances.424 The Third Appellate District rejected an express legislative prohibition on CEQA judicial remedy of halting or rescinding a Capitol office building project, unless the project presents an immediate threat to public health and safety, or if the project contains “unforeseen” important cultural or historical artifacts that would be adversely affected by the project’s continuance.425 The Court found that the challenged office project on the state capital had adverse and under-disclosed aesthetic and historic resource impacts and ultimately could not commence construction pending a new and legally compliant EIR process.426 V.RECOMMENDATIONS AND NEXT STEPS When CEQA was adopted in 1970, there was no Endangered Species Act, Clean Water Act, Clean Air Act, Coastal Protection Act, or any of the myriad new environmental protection statutes initially adopted later in the 1970s, many of which have been strengthened thereafter. In the void of any meaningful environmental protection mandates except CEQA, the Supreme Court’s 1972 exhortation that CEQA be broadly construed to protect the environment427 423 See, e.g., Arthur F. Coon, Slam Dunked! First District Rejects All CEQA and Land Use Challenges to Golden State Warriors Event Center Project and EIR in Expedited Litigation, MILLER STARR REGALIA (Dec. 5, 2016), http://www.ceqadevelopments.com/2016/12/05/slam- dunked-first-district-rejects-all-ceqa-and-land-use-challenges-to-golden-state-warriors- event-center-project-and-eir-in-expedited-litigation/ [http://perma.cc/9KED-3JU6 ]. The Court of Appeal observed that the 270-day target for resolution of judicial proceedings established pursuant to Public Resource Code § 21185 carries no penalty for noncompliance, is implicitly qualified by feasibility considerations, and was not met here (largely due to delay associated with transferring one of two consolidated CEQA actions that was improperly filed in Sacramento); however, it noted the parties and courts met most applicable deadlines and resolved the CEQA petitions at the appellate level “considerably sooner than would have been the case had the project not been certified under Section 21184 as an environmental leadership development project” Id. 424 See, e.g., CAL. PUB.RES.CODE § 21168.6.6(h) (repealed as of inoperative date); see also Save Our Capitol! v. Dep’t of Gen. Servs., 303 Cal. Rptr. 3d 761, 771–72 (Ct. App. 2023). 425 Save Our Capitol!, 303 Cal. Rptr. 3d at 771–72. 426 See id. at 805–06. 427 Friends of Mammoth v. Bd. of Supervisors, 502 P.2d 1049, 1056 (Cal. 1972). 156 Chapman Law Review [Vol. 26:1 was all that stood between an agency determined to authorize old growth timber clear cuts.428 All those projects were stopped, in part through CEQA, but more meaningfully and permanently through the dozens of other environmental laws enacted subsequent to CEQA. The 1972 directive, though, needs to be revisited to reflect the reality of CEQA practice today. In Berkeley, repairing our small kitchen deck was “categorically exempt” from CEQA as a “repair” of an existing structure. A cranky neighbor could have sued us and claimed we didn’t qualify for a categorical exemption based on an “unusual circumstance”—such as the non-compliant side setback distance to the next-door house (when both houses, and the broken deck, were built prior to the adoption of side setback requirements). If we were unwilling to pay the City to defend us from that lawsuit, and if we were unwilling to indemnify the City in case our neighbors won and the City was ordered to pay the neighbor’s attorneys’ fees, then we could not get approval from the City to repair the deck. Fortunately, we did not have cranky neighbors. Cranky neighbors love CEQA. Only wealthy neighbors can pay for CEQA compliance costs, litigation costs, and fund city indemnity demands. If we had a cranky neighbor, we would have had to demolish the deck. Bummer, as it was also our backyard access and fire exit. This is not CEQA as enacted by the Legislature, nor is it CEQA as reviewed by the courts. It is CEQA in practice, and the Legislature (through CEQA statutes), Governor (through the CEQA Guidelines), and the courts (through CEQA jurisprudence) should be aware of what CEQA is actually doing, for whom it is acting on behalf of, and what it is blocking—like housing and climate resiliency. CEQA today is about protecting the status quo by stopping housing, and “those people,” and all the infrastructure “they” need. CEQA today is about protecting the current “natural” environment, inclusive of catastrophically mismanaged forests, crumbling levees, reverse-flow rivers, and water supply shortfalls that have left one million residents in urban and rural communities (mostly disadvantaged communities of color) without water they can safely drink from their taps. CEQA today favors blocking two-story homes to preserve a parking lot micro- environment ocean view of four-foot tall children and adults in 428 Ebbetts Pass Forest Watch v. Cal. Dep’t of Forestry & Fire Prot., 43 Cal. Rptr. 3d 363 (Ct. App. 2006). 2022] In the Name of the Environment Part III 157 wheelchairs, even as climate change policies demand vast and fast action to generate renewable energy from land-intensive solar and wind projects and new transmission lines across states and tribal lands. Creating well-paid jobs for Californians without fancy college degrees in alignment with the national priority of re- shoring manufacturing of critical technologies and supplies to respond to global supply chain and national defense uncertainties is another priority doomed to CEQA pre-litigation and post- litigation bickering, costly multi-year studies, and uncertain judicial outcomes decided in decades, not months or years. Legislative amendments to CEQA face significant political hurdles, and even if those hurdles are overcome, the amendments will not be effective unless judicial enforcement of CEQA is reshaped into traditional administrative law jurisprudence based on the Rule of Law. A core principle of the United States, and other democratic governments globally, is that all people and all institutions are required to comply with the Rule of Law. As defined in Oxford Languages, the Rule of Law is “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.”429 As amplified by the World Justice Project, the rule of law requires the law to be “clear, publicized, and stable and [to be] applied evenly.”430 It also “ensures human rights as well as property, contract, and procedural rights.”431 Courts can restore administrative law jurisprudence to CEQA jurisprudence by embracing the 1993 statutes and ignoring any substance or process not expressly required by the CEQA statutes of Guidelines. The Governor can revise the Guidelines to align with today’s civil rights, housing, environmental and economic justice, and climate priorities. The Legislature, and all the CEQA status quo defenders who lobby in the Legislature, need to recognize that the harms inflicted on California by weaponizing CEQA can far more effectively, equitably, and economically be achieved by statutes resolving policy disputes directly—not via CEQA. 429 Oxford Langauges, Rule of Law, GOOGLE, http://www.google.com/search?q=rule+of+law+definition&rlz=1C5CHFA_enUS921US921 &oq=rule+of+law+definition&aqs=chrome..69i57j0i512l9.2855j0j4&sourceid=chrome&ie= UTF-8 [http://perma.cc/SR8G-2458] (last visited Apr. 9, 2023). 430 What is the Rule of Law?, WORLD JUST.PROJECT, http://worldjusticeproject.org/about-us/overview/what-rule-law [http://perma.cc/5JWJ- HBB8] (last visited Mar. 25, 2023). 431 Id. 158 Chapman Law Review [Vol. 26:1 Californians created our CEQA (and housing) mess, especially the Californians from my generation (Baby Boomers). We need to own this failure while also owning our environmental successes, like stripping tailpipe emissions of ninety-nine percentof smog pollution as confirmed by the EPA.432 We can do this, but not by talking past each other or refusing to talk with each other at all, or even by continuing to pretend that what we are doing with CEQA is to “protect the environment” instead of “protect my environment.” 432 History of Reducing Air Pollution from Transportation in the United States, EPA, http://www.epa.gov/transportation-air-pollution-and-climate-change/history-reducing-air- pollution-transportation [http://perma.cc/3RHX-BM79] (last updated Jan. 31, 2023). 11/13/23, 11:20 AM AOL Mail - Additional Comments on Site H in Tiburon's Housing Element about:blank 1/3 Additional Comments on Site H in Tiburon's Housing Element From:Eric Crandall (eric94920@aol.com) To:melinda.coy@hcd.ca.gov; brandon.yung@hcd.ca.gov Cc:bkautz@goldfarblipman.com Date:Wednesday, October 4, 2023 at 12:31 PM PDT Ms. Coy and Mr. Yung, It has come to my attention that the Committee for Tiburon continues to provide HCD with false information regarding my property, Site H in the Town of Tiburon’s Housing Element. In a recent letter from an attorney representing the Committee, Peter Prows has claimed that there is, “no credible analysis of water capacity for Site H.” However the Marin Municipal Water District, who currently supplies water to Site H, was asked specifically about providing water service to 93 additional units. MMWD wrote, “That is correct. Water is currently available for the project.” A copy of that email was provided in a previous submission, and is attached to this email for your reference. Regarding fire flow, the report put together on behalf of the Committee makes assumptions about potential building sizes, unit types, and other features, and seeks to provide an analysis on that hypothetical project. The findings in the report are irrelevant. In addition, the report does not consider that there is a second water main that runs adjacent to my property on part of the eastern boundary that could be accessed to provide additional water to meet fire flow requirements if it was necessary. Nor does the report consider options such as on-site water storage, pumps to increase pressure, or other alternative means of meeting fire flow requirements. The letter from the Committee states that, “we pointed HCD to testimony from fire professionals establishing that inadequate existing fire flow exists to service the site.” That is false. They are referring to comments from a neighbor, Ken Royal, made during public comment at the May 10, 2023 Planning Commission meeting (the video can be viewed here: https://townoftiburon.granicus.com/MediaPlayer.php? view_id=5&clip_id=1030) His comments start at 1:10:30 on the video of the meeting if you would like to review them. Mr. Royal, who identified himself as a resident of a nearby neighborhood (Paradise Cay) who was opposed to development on Site H, and as a retired paramedic. He incorrectly stated, “I will tell you that there is one hydrant”, when there are actually three. He then asked, “What has been done to study fire flow?” He did not provide evidence or expert opinion that there was inadequate fire flow at Site H, as the Committee’s letter claims. We have previously provided you with a letter from a fire expert who stated that fire flow is not an issue with developing Site H with an additional 93 units. The letter says, “It is my professional and expert opinion that any consideration of increasing use densities is not related to fire flows. The fire code as adopted by TPFD does not use density to calculate and identify required fire flow for one and two-family dwellings and townhouses.” That letter is attached to this email as well. 11/13/23, 11:20 AM AOL Mail - Additional Comments on Site H in Tiburon's Housing Element about:blank 2/3 While the Committee correctly quotes the 1999 Paradise Drive Visioning Plan that says the existing water main, “does not deliver the desired 1000 GPM of fire flow to all areas along Paradise Drive,” the Visioning Plan also talks about which parts of Paradise Drive it does deliver the 1000 GPM of fire flow to, and which areas it does not. Unsurprisingly, the Committee does not mention what the Visioning Plan says in the paragraph following their quote. It says, “The water system can generally deliver 1000 gpm fire flows along Paradise Drive from the Corte Madera Town Limits to Trestle Glen Boulevard.” Site H is located on this stretch of Paradise Drive, where the water system does deliver the 1000 gpm of fire flow. The Committee intentionally omits this part of the report, as it contradicts the false claims they are making. Here is a link to the 1999 Paradise Drive Visioning Plan for your reference. https://www.marincounty.org/-/media/files/departments/cd/planning/currentplanning/publications/community andareaplans/paradise_drive_visioning_plan.pdf The relevant part is on page 12 of the report, which is page 17 of the PDF. When the Committee tells you that Tiburon’s Consultants have “never even been on the property. . . “ and that, “the Committees consultants have. . .” that is false on both fronts. The Town of Tiburon’s consultants did make a site visit and put together a detailed written report which the Committee has seen and commented on. Yet they still attempt to mislead you into believing that Tiburon consultants have not been on the property. A copy of the report done by Tiburon’s consultants is attached. Actually, it is the Committee consultants who have never been on my property. When the Committee claims otherwise, they are either lying, or admitting to illegal trespass onto my property. Finally, while there are numerous problems with the buildability analysis commissioned by the Committee, and the assumptions made in the report, it does not reach the conclusion that the Committee claims. While the report incorrectly assumes building can not take place within 100 feet of the shoreline, assumes the existence of two streams which have been proven not to exist, and assumes incorrect setback distances of 100 feet from both the streams that don’t exist, and the two streams that do exist when the actual required setback would be 50 feet, the report still finds that 93 units could be built. The report Conclusion states, “Approximately 93 above-moderate-income housing units could theoretically be built in the area remaining for development after accounting for the impact of the ephemeral streams, the site topography, fire apparatus access road widths and other municipal code.” So even with flawed assumptions, and a goal of showing my site can’t be developed, the Committee’s own buildability analysis determined that 93 units could still be built. We have previously provided you with letters from myself, developers with local knowledge, civil engineers who have done geotechnical studies on the property, and others that all determined that there are no constraints to building an additional 93 units on Site H. It is the opinions of these experts who have visited the site to reach the conclusions that should be relied upon, and not the opinions of neighbors and their attorneys, who don’t want new housing built near their multi-million dollar homes. 11/13/23, 11:20 AM AOL Mail - Additional Comments on Site H in Tiburon's Housing Element about:blank 3/3 Exhibit 38. MMWD Email 8.16.23.pdf 94.8kB Exhibit 40.Fire Flow Expert Opinion.8.30.23.pdf 166kB JFM 2023.pdf 160.1kB PH-1_EXHIBIT_8_-_Site_H_Conditions.pdf 9.6MB Thank you, Eric Crandall Sierra Pines Group LLC 4576 Paradise Drive Tiburon, CA 94920 11/13/23, 11:27 AM AOL Mail - Tiburon's Housing Element and Site H about:blank 1/2 Tiburon's Housing Element and Site H From:Eric Crandall (eric94920@aol.com) To:melinda.coy@hcd.ca.gov; brandon.yung@hcd.ca.gov Cc:bkautz@goldfarblipman.com Date:Thursday, September 21, 2023 at 04:37 PM PDT Ms. Coy and Mr. Yung, I am the owner of the property at 4576 Paradise Drive, also known as Site H in the Town of Tiburon’s Housing Element. At last night's Town Council meeting, the Town Council voted unanimously to adopt the requested changes to their Housing Element and resubmit it to you for review. Here is a link to information we provided to the Town of Tiburon as part of the record: https://www.dropbox.com/scl/fi/8kmu7r9exyvku2r6kpdgx/4576-Paradise-Drive-Information.pdf? rlkey=mtm3wavytaf3rvmyk57kedsoi&dl=0 Please let me know if you have any trouble downloading this. As you will see, the information we provided to the Town of Tiburon provides substantial evidence in the form of reports and letters from professionals, correspondence with service providers (including water and sewer), letters of developer interest, and a letter from a fire expert that all demonstrate that my site can be developed with 93 units. This information supports Tiburon's findings that Site H is a feasible site for development with of a minimum of 93 units as stated in their Housing Element. You may be interested in the information on the ephemeral drainages on page 4 as well as the information on utilities (including fire flow) on page 16. There are professional reports and letters referenced that are attached as exhibits that demonstrate that there are no constraints that will prevent the development of my site at the density listed in the adopted Housing Element. There is a table of contents so that you can look at any of the information that interests you. Our environmental consultant did a formal Delineation of Wetlands and Other Waters report that determined that there were two ephemeral drainages on my site. CDFW and the Marin Resource Conservation District also inspected my site, wrote reports, and found the same two ephemeral drainages (these reports are all attached as exhibits in the link provided). More recently, the Town of Tiburon’s environmental consultant came out and did their own site inspection and report that confirmed the findings of the report by our consultant (and CDFW and MRCD), and debunked the claims made by neighbors that there were numerous other streams on my property. Despite all of these reports from qualified professionals (two of which were from uninvolved government agencies) who each spent hours on my property investigating the site, my neighbors still contend that these reports are all incorrect. They cite maps found online with lengthy disclaimers, and seek to apply broad regional maps to my site specifically. Most recently they had a civil engineer who looked at my property from the street and with a drone write a report. Someone who has never set foot on my property 11/13/23, 11:27 AM AOL Mail - Tiburon's Housing Element and Site H about:blank 2/2 CORRESPONDENCE_46.pdf 149.3kB is trying to say he has enough information to give a professional opinion on the site conditions here, and that the 4 expert reports from qualified professionals who visited my site are wrong, and he is right. I have attached a PDF of an email that was also submitted for the record to the Town of Tiburon, addressing the claims in this report, as well as another regarding fire flow. One more note regarding the ephemeral streams. While the neighbors opposed to my site continue to claim that the stream setbacks will not allow for development of my site, not only are they insisting that there are more streams than there actually are, they are also using a larger setback (100 feet) than would actually be required when the property is subdivided as part of the development process and the lots are smaller than 5 acres. Tiburon's adopted General Plan is clear that the required setback is 50 feet on lots smaller than 5 acres. We have previously provided you with numerous other ways that potential issues with the streams could be dealt with, I just wanted to point out to you some obvious flaws with the argument made by my neighbors. This has been an interesting process for us, as I’m sure it has been for you as well. Just this past Friday, a member of the Committee for Tiburon (who have filed suit against Tiburon) trespassed (they walked hundreds of feet onto my property) onto my property. The same member did the same thing on Monday with another resident, and refused to leave when I asked them to. Only when the sheriff directed them to leave, did they (they had called the sheriff). Also on Monday, a different member of the Committee for Tiburon was using binoculars to look at my property from the street (apparently to prepare a report on my site). While they did not trespass onto my property, spending hours looking at us with binoculars is also quite invasive. Thank you for your time on this, and please contact me if you have any questions or require any additional information. Thank you, Eric Crandall Sierra Pines Group LLC (415) 250-4434 Ms.Coy and Mr.Yung, I am the owner of 4576 Paradise Drive in Tiburon,which is referred to as Site H in the Town of Tiburon’s adopted Housing Element,which has been submitted to you for review. I submitted a letter to you on September 21,2023 with a number of exhibits supporting the statements made.The documentation included in that letter demonstrates that Site H is suitable for residential development at a density of 10-12.4 du/ac as listed in Tiburon’s adopted Housing Element. Tiburon includes a program in their adopted Housing Element to rezone Site H by the January 31,2024 deadline,and Site H is available for residential use during the planning period.There are no existing development standards that would prevent Site H from being developed at the density listed in Tiburon’s adopted Housing Element,and the relevant utility providers have confirmed,in writing,that the infrastructure capacity exists to accommodate the needs of any new development on Site H.Expert reports have been done that were used to determine that there are no environmental constraints to developing Site H with 93 additional units. There are no physical issues,location issues,or issues with lack of access to jobs or high performing schools that would prevent development of Site H with 93 additional units. Site H was identified because it was a residentially zoned site that was capable of being developed at a higher density than was allowed under the previous zoning. Water,sewer,and dry utilities are accessible and available at Site H and have sufficient capacity to serve the development of an additional 93 units on Site H.Water supplied by Marin Municipal Water District already is provided to the site,and the provider has confirmed that they have adequate capacity to serve new development on the site.Sewer service provided by Sanitary District No.2 is available adjacent to the site,and sewer lines run along the western boundary of the site as well as along part of the eastern boundary.The sewer provider has confirmed that they have adequate capacity to serve 93 additional units on Site H.While sewer service is available to Site H,because it is designated for above moderate housing,it is not required to be served by public sewer.PG&E currently provides power and natural gas to the site,and Comcast currently provides high speed internet and cable television to the site. I have also reviewed the information in your Sites Inventory Guidebook for non-vacant sites,and Site H also meets all of those requirements. I believe that the information that has been provided in Tiburon’s adopted Housing Element,in this email,and in previous communications with you clearly demonstrates the following: -that there is property owner interest in developing Site H at the density listed in the housing element during the planning period -that there is local developer interest in developing Site H at the density listed in the housing element during the planning period -that there are no physical,environmental,location,utility,or other constraints that would prevent development of Site H at the density listed in the housing element during the planning period Should you have any questions about the suitability of Site H for development,constraints on development,or anything else,please let me know so that I can provide you with additional information to address your concerns. Thank you, Eric Crandall Sierra Pines Group LLC 4576 Paradise Drive Tiburon,CA 94920 (415)250-4434 The Committee for Tiburon LLC - TCFT the Committee to Preserve the Paradise Cove Salt Marsh, Tidelands and Neighborhood Safety (dba) PO Box 1366 Tiburon, CA 94920 415-435-3222 ______________________________________________ Presented to the Town Council meeting November 15, 2023 • Report by CSW Stuber-Stroeh Engineering Group, Inc. Civil Engineers and Land Planners Registered Professional Engineers in California Quote from the report: “The Ephemeral streams on Site-H realistically present an insurmountable impediment to building 93, market rate multi-family units of even the average Tiburon unit size of 1,082 square feet per unit. “ 100’ offset is required by Tiburon General Plan Conservation Policy C-8 and C-9. Sub division – 5 acre parcel - 50’ offset will require a CEQA mitigation and will generate additional non-buildable offsets from the division property lines. CEQA Guidelines - California Environmental Quality Act. We (TCFT) are pro-development: We would be pleased to see approval and inclusion in the final HE plan the building of up to 5 additional single family homes on Site-H for which the property was initially and formerly zoned to include in the HE. Given advance knowledge of the VHD build restrictions on Site-H, we are asking: In addition to any reasonable Site-H development for up to 5 additional single family homes, we support what we strongly believe is an excellent potential building area almost 3 times the size of Site-H, located nearby, noted as Site-J. Although it is currently County of Marin, we believe it could quickly and easily be annexed into Tiburon just as Site-H was done 3 years ago to accommodate the landowner’s request to join the Corte Madera Sanitary District #2. There are at least Fifteen major advantages of Site-J over Site-H for VHD to meet the HE Plan requirement 1. Site-J is owned by a long time Tiburon resident, Mr. Marty Winter, a former mayor of Belvedere and one of the major contributors to the funding for the Tiburon-Belvedere Library funding. He has enthusiastically offered his "J" parcel (APN: 039-021-15) for inclusion in the Tiburon HE plan. Site-H was purchased in 2019 by a Nevada-based development company called Sierra Pines Group which has vigorously pursued re-zoning of the property. Sierra Pines’ big development plans are the key driver here which will be to maximize the build and profitability. Tiburon will benefit by having local ownership rather than out of state ownership of the property being developed. 2. At 27 acres, it is almost three times the size of Site-H, leaving room to build more Units less densely and additional parking and recreational facilities and roads for access and turnaround by fire fighting equipment. 3. The southern portion of the property with several ethereal streams exceeds the entire size of Site-H and could be considered as permanent open space, benefiting all 45 homes below including SeaFIrth and Alta Robles. 4. It offers superb views of the Bay. 5. Geologically the ground is much preferred for building. 6. It could be built with an access road from Trestle Glen eliminating additional traffic on narrow Paradise Drive north and south with its blind curves. 7. There are est. 440 homes north of Trestle Glen that will be impacted from construction and increased traffic on Paradise Drive which we believe is 10x the number of homes that would be affected by Site-J. 8. Site-J is served by Tiburon’s own Sanitary District #5 rather than by Corte Madera District #2 for Site-H. 9. Per the Stetson Report, there is twice the water delivery capability to fight fires through the 8” water main serving Site-J vs the 6” main serving Site-H 10. Site-J has a large (10+ acre) building envelop area in the center with no ephemeral streams runoff like the four streams on Site-H that block buildable areas per Tiburon and Marin County’s own regulations. 11. Site-J has no San Francisco Bay shoreline eliminating BCDC considerations and regulations. 12. Site-H development that encroaches on or detrimentally impacts sensitive habitat areas (fish and birds) would violate a host of Federal and State environmental policies. And is subject to BCDC regulations and the Writ. Site-J has none of these problems. It sits higher up above Paradise Drive and has no San Francisco Bay shoreline problems with which to contend. 13. Within TCFT there is an army of residents more than willing to work pro-bono to make Site-J a realistic submission to HCD to meet Tiburon’s HE quota and even to exceed it with additional lower income Units. 14. The Verified petition for WRIT OF MANDAMUS legal action against the Tiburon Town and Sierra Pines Group LLC related to environmental consequences would no longer be necessary and could be dropped immediately upon removal of Site-H from the HE plan. 15. If the known limitations to Site-H block it from VHD development, Site-J will be an excellent VHD replacement plan for Site-H per HCD allowances for like replacement in equal numbers in the HE. Moving now on Site-J will ensure the Town can meet its HE quota if Site-H proves non VHD buildable. There is one known problem to overcome. Site-J is currently County and will need to be annexed and pre-zoned by the Town of Tiburon at any date in the future, even beyond the January 31st, 2024. Working together and with the full support of the council and planning staff, we can get it done. Submitted by: Jon Larson, Tom Struttmann, and Stuart Scheinholtz, co-managing Members The Committee for Tiburon 415-435-3222 Town of Tiburon Housing Element 4576 Paradise Drive Site-H The Committee for Tiburon -170 Members from 75 Households on/off Paradise Drive north of Trestle Glen. -A California LLC, the Committee is represented by the law firm Briscoe, Ivestor & Bazel. Our attorneys, Peter Prows and Tony Francois, specialize in land use and residential law. -We have retained professional engineering firms to advise us including: CSW/Stuber-Stroeh Engineering Group, and Stetson Engineering Inc. -A number of us are working pro-bono as experienced experts in legal, engineering, hydrology, project management, and residential construction. -Co-managing Members include: Jon Larson, Tom Struttman, Stuart Scheinholtz, Jeff Chanin, Mary Ann Chanin, Beth Gassel, Cynthia Massey-Kim, and Jim Gollub. Site H is not suitable for VHD - 93 Units •Public Safety •Dangerous 2 lane road 7 blind curves •Cyclist, pedestrians, emergency vehicles, history of accidents including 10.16,2023 •Traffic ingress egress •No Sidewalks, No Public Transit •No rezoning without understanding what exists •Soils suitability •Ephemeral streams – Town of Tiburon requirements •BCDC – Set back requirements •In adequate water flow for Fire Protection •Fire Protection slopes and turn outs •Incompatible w/neighborhood and Tiburon design standards •Rezone from increased proposed density ~ 20 times •Multi story buildings where none exist Site-H Streams Stuber-Stroeh Engineering Group CSW ST2 Technical Report September 20th 2023 Site-H VHD Buildability Conclusion: • The ephemeral streams on Site H realistically present an insurmountable impediment to building 93, market rate multi-family units of even the average Tiburon unit size of 1,082 square feet per unit. • Approximately 93 above-moderate-income housing units could theoretically be built in the area remaining for development after accounting for the impact of the ephemeral streams, the site topography, fire apparatus access road widths and other municipal code. However, assuming no recreational amenities that would be typically be required to market above-moderate-income units to renters or buyers (such as swimming pools , tennis courts, etc..), the available building footprint(s) would require constructing four at most – buildings, with internal parking garages, that would need to be 13 stories tall combined. Whether built as a single needle tower or multiple towers, in my opinion constructing buildings over 30 feet in height along the Marin County shoreline of San Francisco Bay would be unprecedented, as well as economically infeasible. It is also my opinion that obtaining approval to build towers of this kind could not be accomplished by January 31, 2031 (even assuming this were technically possible from an engineering standpoint). Stetson Engineers Technical Report Fire-Water Flow September 20, 2023 4 Site H: • • • • Mostly undevelopable Four streams network Salt water slough Bay frontage Site J: •Extensive stream free zone •for development in the Center No Salt Water slough • •No Bay frontage • Access from Trestle Glen Extensive Bay Views Site-J Alternative (like substitution for Site-H Units) -27 acres vs 9.5 acres Site-H -10+ Acres Open space -~ 2 x Buildable area -2 x Water Capacity -No Ephemeral Streams -Access from Trestle Glen -No Contact with SF Bay -No BCDC considerations -Locally owned rather than a Nevada owned entity. Alternatives… ADU – 259 Homeowners 389 units From:Jeff Chanin To:Town; Jack Ryan; Jon Welner; Isaac Nikfar; Alice Fredericks; Holli Thier Cc:Dina Tasini; Peter Prows; JON LARSON Subject:Comment for Inclusion at Town Council Meeting - Agenda Item Date:Wednesday, November 15, 2023 11:50:07 AM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Chairman Town Council, Though the Council has decided to designate Site H for very high density development in order to obtain HCD certification of its Housing Element, the Council has repeatedly taken the position that the public health, safety and welfare concerns about such development raised by numerous Tiburon residents­­ - concerns acknowledged as valid by all of the Town’s Council Members and Planning Commissioners in past meetings - can and will be addressed if and when a specific development plan is submitted for Site H. The Town Council has not addressed those concerns to date, let alone made findings that 93-118 units of new housing at Site H will be safe and will protect the health and welfare of the Town's residents, or the environmental resources that the Town seeks to protect. For this reason, and so as not to tie the Town’s hands in the future and prevent the Town from making contrary findings if a development application is submitted for Site H, the Planning Commissioners at their October 18, 2023, meeting specifically deleted from the draft Resolution No. 2023-009 proposed for it by Staff an unnecessary “Whereas” clause that read: “WHEREAS, the Planning Commission finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare,” The Planning Commissions Resolution as adopted and signed by Chairperson Williams has been provided as Exhibit 3 for this meeting, pp. 98-100 of the PDF of Exhibits linked to the Agenda. Nevertheless, and though not required for adoption of the new Ordinance by the Municipal Code or any other law, and without alerting the Town Council to the Planning Commission's deletion in its Report, Staff now proposes that the Town Council should make this same, unnecessary finding in the Ordinance that the Council is being asked to approve tonight. The following whereas clause appears in both the blacklined draft Exhibit 1, and redlined draft Exhibit 2, at the top of page 2 of each Draft (pp. 19 and 58 of the PDF): “WHEREAS, the Town Council finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare,” I urge you to also do as the Planning Commission did - to delete this whereas clause from the Resolution you have been asked to adopt. The Town Council need not make this finding in order to approve the Ordinance, or to comply with State Housing Element laws. Moreover, the Town Council cannot possibly find, nor has it been presented with any evidence to find at this time, that the rezoning and potential development of Site H will actually protect the public’s health, safety, and welfare (for example, the safety of pedestrians, bicyclists and motorists who use Paradise Drive, or of the Tiburon homeowners who live near Site H, or of the emergency response personnel and firefighters who might be called upon to respond to an emergency or fire at or near to Site H, or that this will protect the natural environment on and adjacent to Site H). And, should this unnecessary finding be made, the Town may later be judicially estopped from disapproving a specific development plan for Site H on the grounds that the density applied for would jeopardize the public health, safety, welfare, or environmental resources of this Town. As so much evidence has been presented to the Town Council since Site H was first proposed indicating that very high density development of Site H likely will threaten the public health, safety, welfare, or environmental resources of this Town, as the Town responded in the EIR that this need not be decided now and can be taken up when a specific application is filed, as the Town Council need not make the proposed finding in order to adopt the new Ordinance, and as the Council cannot responsibly make this finding based on the information before it at this time, the Town Council should deleted the proposed finding. Thank you for your consideration, Jeffrey and Mary Ann Chanin Old Landing Road, Tiburon From:Victoria Hughes To:Lea Dilena Subject:Re zoning 4576 Paradise Road to higher density R-3-10 Date:Wednesday, November 15, 2023 11:53:26 AM [You don't often get email from vhughes01@comcast.net. Learn why this is important at https://aka.ms/LearnAboutSenderIdentification ] CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Town Council: The length of Paradise Drive along this property is about 1/2 mile. The road is nothing but curves and is barely wide enough at sone points to be two lane. This part of unincorporated Tiburon is the rural undeveloped backside of the Tiburon Peninsula and the road is extremely narrow with no pedestrian walkway intended or considered. The road was carved into the hillside years ago, probably just a cattle drove. Widening it would create tremendous erosion. There is no Safe access to the property. No place for a school bus to pick up the 40 to 75 potential students walking up the steep access road to Paradise Road. AND no sidewalk to walk down to the Paradise Cay bus stop. The prevailing wind comes up from the south across the Bay and shoots up this property, which is a drainage ravine for Ring Mountain, and blows across thick groves of flammable eucalyptus. There is No way for a Fire Truck to quickly respond to a wind fed fire in the ravine and no way for vehicles to quickly get out. When it rains Four drain culverts back up and flood Paradise road when filled with debris, at low places on the curvy road, and runs over the road and erodes it’s way down the existing eroded gulches made by the water shooting through the culverts and pouring into the ravine, carrying mud and debris with it into the Bay at the bottom. The proposed development will be a huge Fire hazard due to years of unrestrained growth: Eucalyptus, shrubs, vines, poison oak, bay and oak trees, which does hold the ravine together but must be removed for such a large development for fire safety. But, with its removal the erosion will quickly develop Into an unmanageable, unsustainable dangerous drainage ravine dumping even more mud and debris into the Bay. I cannot see The Fire Department or BCDC, in good faith approving this unrealistic, inappropriate proposal. In the Ark Mr. Martinez quoted Erica Williams of the Town Council as saying “we are fearful of the consequences to the entire town. Moving forward is the rational thing to do”. So you are operating out of fear of facing Builders Remedy? Tell me how it could be any worse than what you have allowed to be approved so far? Thank you, Vicky Hughes Sent from my iPhone From:Richard Moran To:Town Subject:4576 Paradise Drive Date:Wednesday, November 15, 2023 11:56:18 AM Some people who received this message don't often get email from richard.a.moran@gmail.com. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. To the Tiburon Town Council: I am unable to attend the meeting today regarding 4576 Paradise Drive. I am hopeful that youwill not approve the development of the site. To do so would negatively impact the entire Town and destroy a neighborhood as well as create a public safety hazard and destroy thebeauty of the area. Just as importantly, the development will change the very nature of that part of Tiburon. I consider it akin to what happened in San Francisco when the Redevelopment Agency tried tomodify the Fillmore District. https://www.sfpublicpress.org/fillmore-revisited-how- redevelopment-tore-through-the-western-addition/ Those members of the SF staff whoapproved the development of the Fillmore Area have gone down in history as a self serving group who paid no attention to the community's wishes. San Francisco is still dealing with that poor decision today. Developing the site is not aquestion of compliance. That is the easy part. The more difficult part is that the nature of the Town will change in a negative way. I doubt you want that to happen on your watch. As a former college president I know how hard decisions can be. Please make the right onehere and vote against the Paradise Drive housing plan. There are alternatives. Sincerely, Richard A. Moran, Ph.D. 415-706-3843 From:Peter Prows To:Town; Jack Ryan; Jon Welner; Isaac Nikfar; Alice Fredericks; Holli Thier Cc:Dina Tasini; JON LARSON; Jeff Chanin; Wagner, Mary A. Subject:Re: Comment for Inclusion at Town Council Meeting - Agenda Item Date:Wednesday, November 15, 2023 2:26:15 PM Attachments:Oct 2023 ltr Tiburon Planning Commission.pdf Some people who received this message don't often get email from pprows@briscoelaw.net. Learn why this isimportant CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Tiburon Town Council: On behalf of the Committee for Tiburon, I incorporate Mr. Chanin’s message below, as wellas the written and oral objections that Committee members and I made to the Planning Commission about this matter, which are equally applicable to staff’s draft resolution for theCouncil’s consideration. (My letter to the Planning Commission is attached.) Regards, Peter Prows PETER PROWS​ 235 Montgomery Street, Suite 935 San Francisco, California 94104 Direct: (415) 402-2708 Cell: (415) 994-8991 On Nov 15, 2023, at 11:49, Jeff Chanin <class5run@gmail.com> wrote: Dear Chairman Town Council, Though the Council has decided to designate Site H for very high density development in order to obtain HCD certification of its Housing Element, the Council has repeatedly taken the position that the public health, safety and welfare concerns about such development raised by numerous Tiburon residents­­ - concerns acknowledged as valid by all of the Town’s Council Members and Planning Commissioners in past meetings - can and will be addressed if and when a specific development plan is submitted for Site H. The Town Council has not addressed those concerns to date, let alone made findings that 93-118 units of new housing at Site H will be safe and will protect the health and welfare of the Town's residents, or the environmental resources that the Town seeks to protect. For this reason, and so as not to tie the Town’s hands in the future and prevent the Town from making contrary findings if a development application is submitted for Site H, the Planning Commissioners at their October 18, 2023, meeting specifically deleted from the draft Resolution No. 2023-009 proposed for it by Staff an unnecessary “Whereas” clause that read: “WHEREAS, the Planning Commission finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare,” The Planning Commissions Resolution as adopted and signed by Chairperson Williams has been provided as Exhibit 3 for this meeting, pp. 98-100 of the PDF of Exhibits linked to the Agenda. Nevertheless, and though not required for adoption of the new Ordinance by the Municipal Code or any other law, and without alerting the Town Council to the Planning Commission's deletion in its Report, Staff now proposes that the Town Council should make this same, unnecessary finding in the Ordinance that the Council is being asked to approve tonight. The following whereas clause appears in both the blacklined draft Exhibit 1, and redlined draft Exhibit 2, at the top of page 2 of each Draft (pp. 19 and 58 of the PDF): “WHEREAS, the Town Council finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare,” I urge you to also do as the Planning Commission did - to delete this whereas clause from the Resolution you have been asked to adopt. The Town Council need not make this finding in order to approve the Ordinance, or to comply with State Housing Element laws. Moreover, the Town Council cannot possibly find, nor has it been presented with any evidence to find at this time, that the rezoning and potential development of Site H will actually protect the public’s health, safety, and welfare (for example, the safety of pedestrians, bicyclists and motorists who use Paradise Drive, or of the Tiburon homeowners who live near Site H, or of the emergency response personnel and firefighters who might be called upon to respond to an emergency or fire at or near to Site H, or that this will protect the natural environment on and adjacent to Site H). And, should this unnecessary finding be made, the Town may later be judicially estopped from disapproving a specific development plan for Site H on the grounds that the density applied for would jeopardize the public health, safety, welfare, or environmental resources of this Town. As so much evidence has been presented to the Town Council since Site H was first proposed indicating that very high density development of Site H likely will threaten the public health, safety, welfare, or environmental resources of this Town, as the Town responded in the EIR that this need not be decided now and can be taken up when a specific application is filed, as the Town Council need not make the proposed finding in order to adopt the new Ordinance, and as the Council cannot responsibly make this finding based on the information before it at this time, the Town Council should deleted the proposed finding. Thank you for your consideration, Jeffrey and Mary Ann Chanin Old Landing Road, Tiburon Peter Prows (415) 402-2708 pprows@briscoelaw.net BRISCOE IVESTER & BAZEL LLP 235 MONTGOMERY STREET, SUITE 935 SAN FRANCISCO, CALIFORNIA 94104 (415) 402-2700 22 October 2023 By Email Only Tiburon Planning Commission 1505 Tiburon Boulevard Tiburon, CA 94920 town@townoftiburon.org Dear Tiburon Planning Commission: This firm represents The Committee for Tiburon—a group dedicated to preserving the salt marsh, Tidelands, and safety of Tiburon’s Paradise Drive neighborhoods. The Committee urges you to reject the proposed rezoning of “Site H”, at 4576 Paradise Drive, from Residential Planned Development (RPD) zoning to Multifamily Residential Zone (R-3-10), or at least to not make the proposed finding that “the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare.” Rezoning Requires An EIR Until now, Tiburon has recognized Site H as a special environmental refuge. The Community Development Department, in their report to the Planning Commission dated January 13, 2021, recognized that this parcel “likely” has “special status species/special communities”, “tree stands”, and “views” of “water and shoreline areas”. The Committee, at its comments for your 23 August 2023 meeting considering General Plan amendments (which comments the Committee incorporates by reference), has also provided evidence to you of the sensitive streams and wetlands on the property. The current Zoning Code, in section 16-21.020(F), also recognizes that properties like Site H that are zoned RPD “is intended to protect and preserve open space land as a limited and valuable resource” by insuring, to the extent feasible, “the BRISCOE IVESTER & BAZEL LLP Tiburon Planning Commission 22 October 2023 Page 2 conservation of natural resources and the retention of land in its natural or near natural state in order to, among other things, assist in the containment of urban sprawl and protect the community from the hazards of fire, flood, seismic, and other catastrophic activity”. The proposed zoning change, however, would change a parcel that is currently recognized as valuable open space to a parcel in which open space uses are prohibited, as the amendments to Table 2-1 in section 16-21.030 make clear: This change would make the current open space use of Site H illegal. The only permitted use of this privately owned R-3-10-zoned property would be residential uses at a minimum of 10.0 du/acre. By making open space use illegal, Tiburon would effectively be mandating the conversion of Site H from open space to densely developed residential space. Because this zoning change would make the current open space use of the property illegal, and effectively mandate dense residential development of the property, the change would commit Tiburon to causing a direct Tiburon Town Council Ordinance No. XXX N.S. (DRAFT) Page 15 of 68 TABLE 2-1 Allowed Land Uses and Permit Requirements for Residential Zones P Permitted Use U Conditional Use Permit MP Ministerial Permit — Use not allowed PERMIT REQUIRED BY DISTRICT Specific Use Regulations LAND USE (1) R-1 R- 1- B R O R-2 R-3 and R- 3-10 R-4 RP D RM P AGRICULTURAL & OPEN SPACE USES Agriculture, including aviaries (6) U U U U U U U U Botanical conservatories, outdoor nature labs, and similar facilities — — — — — — U U Open space use — — — — — — P P Wildlife sanctuaries — — — — — — U U RECREATION, EDUCATION & PUBLIC ASSEMBLY USES Equestrian facility (2) U U U — — — U U Title VI, 20- 5.1 Golf course/country club U U U — — — U U Library, museum U U U U U U — — Parochial or other nonprofit school - elementary, secondary, or college U U U U U U U U Philanthropic or charitable facility U U U U U U U U Private residential recreation facilities U U U U U U U U Public park P P P P P P P P Playground U U U U U U U U Publicly owned building or facility U U U U U U U U Religious places of worship U U U U U U U U RESIDENTIAL USES Home occupation P P P P P P P P 16-52.110 Intermediate or community care facility (3) P P P P P P P P Multifamily dwelling — — — — P P — P Accessory dwelling unit /Junior accessory dwelling unit (5) MP M P M P MP MP MP MP MP 16-52.100/ 16-52.105 Single-family dwelling P P P P P — P P Single-family dwelling providing room/board for 1 paying guest for a minimum of 31 consecutive days; vacation rentals are not permitted P P P P — — P P Two-family dwelling, attached — — — P — — — P Two-family dwelling, detached — — — P(4 ) — — — — 16-40.020 Transitional, supportive housing P P P P P P P P Key to Zoning District Symbols R-1 Single-Family Residential R-3 Multifamily Residential R-1- B Modified Single-Family Residential R-3- 10 Multifamily Residential RO Residential Open R-4 Multifamily Residential R-2 Two-Family Residential RPD Residential Planned Development RMP Residential Multiple Planned Notes: (1) See article X (definitions) for land use definitions. BRISCOE IVESTER & BAZEL LLP Tiburon Planning Commission 22 October 2023 Page 3 physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, constituting a “project” under CEQA. (Public Resources Code § 21065.) The potentially significant environmental impacts of developing Site H with dense residential development are not within the scope of the General Plan 2040 EIR, which expressly deferred analysis of any “site-specific” development projects to a later time. Because the proposed zoning change would constitute a development project (by committing Tiburon to dense residential development of the site and to making the current open space use illegal), the time for a site-specific EIR is now. Rezoning is not “necessary for the protection of the public health, safety, and welfare” The proposed resolution would have the Planning Commission find that rezoning Site H is “necessary for the protection of the public health, safety, and welfare.” Does the Planning Commission really think that rezoning Site H is “necessary” for the protection of the public health, safety, and welfare of Tiburon? No aspect of Tiburon’s current public health, safety, and welfare requires rezoning Site H, and staff has presented no evidence otherwise. The Planning Commission should not put its name to this proposed finding. There is also no reason for the Planning Commission to make this finding. The Tiburon Zoning Code does not require the Planning Commission to find that the rezoning is “necessary”. To recommend a rezoning, the Planning Commission need find only that the rezoning “will not be detrimental to the public health, safety, or welfare of the town.” (Tiburon Code of Ordinances § 16-68.050(A)(3).) A finding that a rezoning “will not be detrimental” to the Town is very different than finding the BRISCOE IVESTER & BAZEL LLP Tiburon Planning Commission 22 October 2023 Page 4 rezoning is “necessary” for the Town. The Planning Commission should not find that the rezoning is “necessary” for the Town. // Please contact me with any questions and thank you for your attention to this letter. Sincerely, BRISCOE IVESTER & BAZEL LLP /s/ Peter Prows Counsel for Committee for Tiburon From:Cynthia Massey-Kim To:Lea Dilena; Town; Dina Tasini; Kris Wyek; Jack Ryan; Jon Welner; Alice Fredericks; Holli Thier; Isaac Nikfar Cc:James Subject:Nov 15th : Public Comment Town Council Meeting Date:Wednesday, November 15, 2023 2:51:58 PM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. November 15, 2023 Dear Members of the Town Council: It is disappointing to see how Mr. Crandall, at 4576 Paradise Dr., continues to dwellon “non-related housing exchanges” between our communities when we are all hereto discuss the matter at hand: our concerns regarding high density development at alocation that is not suitable for a multitude of reasons. Though our “neighbor & community” disputes date back to 2020, these prior issueshave nothing to do with our opposition to 93+ units. Our concerns now, as we havestated repeatedly, are centered around safety, the environment, Paradise Dr. being awindy and dangerous road, streams & drainage into the Bay, and the lack ofinfrastructure supporting this kind of development. Our community has remained single-minded, and development focused. However,we too can provide documentation, photos, and videos of Mr. Crandall's actions overthe past three years and the negative impact our community has experienced. Mostrecently, there have been incidents that depict Mr. Crandall as impulsive and non-compliant, but we choose not to slander and remain "relevant." But, I would bepleased to share with the Town more details if desired, and it won't be 490 pagesworth. As in any relationship, there are two sides to a story, and in this case (in relation toneighborly disputes), it is Mr. Crandall vs. many homeowners in Paradise Cay. However, since we are here today to discuss the Town’s HE and rezoning Site H, wekindly request the Town Council to disregard the exhibits that Mr. Crandall submittedthat do not pertain to the REAL reason you are meeting today. Thank you for your time and consideration. Sincerely, Cynthia Massey-Kim (Paradise Cay) From:Jeff Chanin To:Jack Ryan; Jon Welner; Isaac Nikfar; Alice Fredericks; Holli Thier Cc:Erica Williams; Eric Woodward; Jeff Tsai; Daniel Amir; Kathleen Defever; Dina Tasini; Town Subject:Fwd: Comment for Inclusion at Town Council Meeting - Agenda Item Date:Wednesday, November 15, 2023 3:13:56 PM Attachments:Muni Code 16-68 (A) Zoning Amendment standard.pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Council Members, Further to my comment submitted below, I am attaching the portion of theTiburon MunicipalCode that states the standard for amending any zoning regulation. Section 16-68.020(A) provides that a zoning amendment may be made "whenever the public necessity,convenience or general welfare require." The standard is clearly not when "necessary for the protection of the public health, safety and welfare" as set forth in the draft Resolutionamending the Town's zoning ordinance that Staff has proposed you adopt tonight. As I wrote earlier, I do not believe that you need to make any finding of why an amendment is necessary in order to adopt the proposed Ordinance and complete the process of rezoning allsite in the Housing Element (nothing in the Municipal Code or Housing Element laws requires the Town Council to make any finding of necessity). However, if you feel that you want, orsomehow need, to make a finding that the rezoning is necessary (because rezoning is needed to cement HCD's certification of the Housing Element, which you have said is your purpose),then you should base your finding on any of the three reasons set forth in the Municipal Code that allow for an amendment that is more consistent with your actual purpose for amending -i.e. "public necessity," or "convenience," or "general welfare" (any one of these will do since the standard is "or," not "and"). Therefore, and because there may be serious consequences of estoppel down the road shouldyou or your successors later find that a specific, very high density development plan submitted for Site H would be unhealthy, unsafe, or contrary to the welfare of the Town, you should dowhat the Planning Commission did -- delete the proposed finding that the zoning amendment is necessary for the protection of the public health, safety and welfare. Or if you so choose,substitute a finding that is supported by and is more consistent with Tiburon's Municipal Code 16-68.020(A). Thank you again for your consideration. Jeffrey and Mary Ann Chanin ---------- Forwarded message --------- From: Jeff Chanin <class5run@gmail.com>Date: Wed, Nov 15, 2023 at 11:49 AM Subject: Comment for Inclusion at Town Council Meeting - Agenda ItemTo: <town@townoftiburon.org>, Jack Ryan <Jryan@townoftiburon.org>, <jWelner@townoftiburon.org>, <inikfar@townoftiburon.org>,<afredericks@townoftiburon.org>, Mayor Holli Thier <HolliThierTiburonTownCouncil@gmail.com>Cc: Dina Tasini <dtasini@townoftiburon.org>, Peter Prows <Pprows@briscoelaw.net>, JON LARSON <JONLARSON99.JL@gmail.com> Dear Chairman Ryan and Town Councilmembers, Though the Council has decided to designate Site H for very high density development in order to obtain HCD certification of its Housing Element, the Council has repeatedly taken the position that the public health, safety and welfare concerns about such development raised by numerous Tiburon residents­­ - concerns acknowledged as valid by all of the Town’s Council Members and Planning Commissioners in past meetings - can and will be addressed if and when a specific development plan is submitted for Site H. The Town Council has not addressed those concerns to date, let alone made findings that 93-118 units of new housing at Site H will be safe and will protect the health and welfare of the Town's residents, or the environmental resources that the Town seeks to protect. For this reason, and so as not to tie the Town’s hands in the future and prevent the Town from making contrary findings if a development application is submitted for Site H, the Planning Commissioners at their October 18, 2023, meeting specifically deleted from the draft Resolution No. 2023-009 proposed for it by Staff an unnecessary “Whereas” clause that read: “WHEREAS, the Planning Commission finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare,” The Planning Commissions Resolution as adopted and signed by Chairperson Williams has been provided as Exhibit 3 for this meeting, pp. 98-100 of the PDF of Exhibits linked to the Agenda. Nevertheless, and though not required for adoption of the new Ordinance by the Municipal Code or any other law, and without alerting the Town Council to the Planning Commission's deletion in its Report, Staff now proposes that the Town Council should make this same, unnecessary finding in the Ordinance that the Council is being asked to approve tonight. The following whereas clause appears in both the blacklined draft Exhibit 1, and redlined draft Exhibit 2, at the top of page 2 of each Draft (pp. 19 and 58 of the PDF): “WHEREAS, the Town Council finds that the amendments made by this Ordinance are necessary for the protection of the public health, safety, and welfare,” I urge you to also do as the Planning Commission did - to delete this whereas clause from the Resolution you have been asked to adopt. The Town Council need not make this finding in order to approve the Ordinance, or to comply with State Housing Element laws. Moreover, the Town Council cannot possibly find, nor has it been presented with any evidence to find at this time, that the rezoning and potential development of Site H will actually protect the public’s health, safety, and welfare (for example, the safety of pedestrians, bicyclists and motorists who use Paradise Drive, or of the Tiburon homeowners who live near Site H, or of the emergency response personnel and firefighters who might be called upon to respond to an emergency or fire at or near to Site H, or that this will protect the natural environment on and adjacent to Site H). And, should this unnecessary finding be made, the Town may later be judicially estopped from disapproving a specific development plan for Site H on the grounds that the density applied for would jeopardize the public health, safety, welfare, or environmental resources of this Town. As so much evidence has been presented to the Town Council since Site H was first proposed indicating that very high density development of Site H likely will threaten the public health, safety, welfare, or environmental resources of this Town, as the Town responded in the EIR that this need not be decided now and can be taken up when a specific application is filed, as the Town Council need not make the proposed finding in order to adopt the new Ordinance, and as the Council cannot responsibly make this finding based on the information before it at this time, the Town Council should delete the proposed finding. Thank you for your consideration, Jeffrey and Mary Ann Chanin Old Landing Road, Tiburon From:JULIE JACOBS To:Town; Lea Dilena; Jack Ryan; Holli Thier; Jon Welner; Dina Tasini; Isaac Nikfar; Alice Fredericks USA.net Subject:Approval of rezoning to achieve compliant Housing Element and avoid Builders’ Remedy Date:Wednesday, November 15, 2023 3:22:18 PM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Mayor Ryan, Town Council Members, and Town Staff, Congratulations on finally receiving a letter from HCD approving Tiburon’s Housing Element. This has been a very long and challenging process for many reasons. It is obvious that there is no perfect place in Tiburon to safely locate 639 new housing units as mandated by the state. This mandate was based on the mistaken designation of downtown Tiburon as a transportation hub because of our single, privately owned dock used by the ferry to the financial district. This mistake led to an unsafe number of new units being mandated for Tiburon by ABAG in the RHNA for this housing cycle. The many natural hazards present in of all of the sites considered for new housing under the Housing Element, combined with the challenges of traffic congestion on the narrow main arteries in and out of our peninsula location, render each of the proposed sites unsafe for the amount of housing required, and make Downtown the most unsafe, as it is in a liquefaction zone, tsunami hazard and evacuation zone, 100 year flood zone, sea level rise and inundation due to climate change location, and adjacent to wildfire risk from urban/wildland interface zones. In case of the need for emergency evacuation, and for regular access of emergency vehicles, there are problems with each of the Housing Element sites, and most of all, with Downtown. Thank you for taking these risks into consideration as you struggled to find ways to comply with the state mandate. Thank you for looking for ways to spread new housing around town, as the state requires, rather than concentrating all of it Downtown. Thank you for achieving a compliant Housing Element to avoid the harsh and punitive consequences of the Builder’s remedy. Now, please move our town’s compliant Housing Element over the finish line tonight by approving the required rezoning. With gratitude for your professionalism, persistence, and hard work, Julie and Seth Jacobs From:Dorene Curtis To:Town; Isaac Nikfar; Jack Ryan; Alice Fredericks USA.net; Jon Welner; Holli Thier; Dina Tasini; Lea Dilena Cc:JULIE JACOBS Subject:Re: Approval of rezoning to achieve compliant Housing Element and avoid Builders’ Remedy Date:Wednesday, November 15, 2023 4:14:38 PM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Mayor Ryan, Town Council Members and Staff, I fully agree with the comments submitted by Julie and Seth Jacobs. The recent comments made by the residents who reside near sites H and J do not present any new information orissues not previously raised, reviewed and addressed. Please follow the recommendations of the Town Staff and the Planning Commission and approve the new zoningrequirements. Thank you very much for all of your hard work on this difficult issue! Respectfully,Dorene Curtis Sent from my iPad > On Nov 15, 2023, at 3:20 PM, JULIE JACOBS <jsj13@aol.com> wrote:> Dear Mayor Ryan, Town Council Members, and Town Staff,>> Congratulations on finally receiving a letter from HCD approving Tiburon’s Housing Element. This has been avery long and challenging process for many reasons. It is obvious that there is no perfect place in Tiburon to safelylocate 639 new housing units as mandated by the state. This mandate was based on the mistaken designation ofdowntown Tiburon as a transportation hub because of our single, privately owned dock used by the ferry to thefinancial district. This mistake led to an unsafe number of new units being mandated for Tiburon by ABAG in theRHNA for this housing cycle. The many natural hazards present in of all of the sites considered for new housingunder the Housing Element, combined with the challenges of traffic congestion on the narrow main arteries in andout of our peninsula location, render each of the proposed sites unsafe for the amount of housing required, and makeDowntown the most unsafe, as it is in a liquefaction zone, tsunami hazard and evacuation zone, 100 year flood zone,sea level rise and inundation due to climate change location, and adjacent to wildfire risk from urban/wildlandinterface zones. In case of the need for emergency evacuation, and for regular access of emergency vehicles, thereare problems with each of the Housing Element sites, and most of all, with Downtown.>> Thank you for taking these risks into consideration as you struggled to find ways to comply with the statemandate. Thank you for looking for ways to spread new housing around town, as the state requires, rather thanconcentrating all of it Downtown. Thank you for achieving a compliant Housing Element to avoid the harsh andpunitive consequences of the Builder’s remedy. Now, please move our town’s compliant Housing Element over thefinish line tonight by approving the required rezoning.>> With gratitude for your professionalism, persistence, and hard work, > > Julie and Seth Jacobs