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Mallard Pointe project wins environmental exemption on appeal

Updated: Jan 30

A rendering shows a proposed mix of duplexes and single-family homes in the Mallard Pointe community on the Belvedere Lagoon. (via Mallard Pointe 1951 LLC)

The Belvedere City Council has cleared a major roadblock for the 40-unit redevelopment of Mallard Pointe, ruling that the proposal is exempt from further environmental study.

 

The council’s 3-1 vote on Jan. 22 overturned a unanimous November decision by the Planning Commission to require more study, which project attorney Riley Hurd last week called an abuse of state environmental laws and “the last bastion of hope for those dead set against this project getting built.”

 

In lauding the council’s decision, developer Bruce Dorfman of Thompson Dorfman Partners, an ownership partner in the site as Mallard Pointe 1951 LLC, said he now hopes to win final approval in May so he can begin demolition next year.

 

“We were incredibly pleased by the City Council’s decision to uphold our appeal,” Dorfman said. “Personally, in my three decades of experience, I have never seen a City Council that was as well-prepared, thoughtful and engaged. Their knowledge of (the California Environmental Quality Act) as it applied to our application and the city was impressive.”

 

The 2.8-acre site, split by Mallard Road, is home to 22 units of duplexes. The project would replace those with five duplexes, six single-family homes and an accessory dwelling unit on the Belvedere Lagoon. The remaining 23 units along Community Road, across from City Hall, would be in an apartment complex or across fourplexes and a triplex. In all, the project would add 18 total new units to the site, four of them deed-restricted for low-income tenants. However, Dorfman has said that once the project’s approved, he’ll seek approval of two more second units at the houses for 42 units overall.

 

He said he’s tabling the 70-unit alternative plan submitted a week before the hearing. Had the appeal failed, he said, more units would be needed to keep the project profitable after time-consuming and costly environmental study.

 

The project will go back to the Planning Commission for review, though no date had been set by The Ark’s press time.

 

Council cross-examines

 

At the five-hour appeal hearing, the council majority of Mayor Peter Mark, Jim Lynch and Sally Wilkinson rejected the commission’s opinion that the site didn’t qualify for an urban-infill exemption under the California Environmental Quality Act, agreeing instead with the recommendation of the city planner, city attorney, two consulting attorneys and the environmental consultant.

 

Vice Mayor Jane Cooper dissented, echoing community opposition that the project needed environmental review. Councilmember Nancy Kemnitzer was recused for financial conflict as she lives within 500 feet of the site.

 

The decision also dealt a significant defeat to Belvedere Residents for Intelligent Growth, or Brig, a group formed specifically to fight the redevelopment project as out of character with the neighborhood. It has said the project would displace current tenants, jam up traffic, threaten the safety of kids at the nearby park and challenge the water supply.

 

Co-chairs John Hansen of Santa Rosa and Tom Price of Belvedere said they were “deeply disappointed” the council went against the commission and “the emphatic wishes and feedback of its constituents,” adding that Brig is now considering its options as the project moves forward.

 

The Mallard Pointe developer filed its preliminary application for fast-tracked approval in June 2021, saying the project was designed to be exempt from environmental review but that City Hall charged $100,000 and took 1½ years to complete the expert analysis only to draw the same conclusion.

 

One requirement for exemption is that a project site is “substantially surrounded by urban uses.” The commission had agreed with project opponents that the lagoon is akin to a natural feature that’s connected to Richardson Bay and under federal jurisdiction, among other traits, so it’s not an urban use. Further, commissioners said the adjacency to the lagoon posed an “unusual circumstance” — on bay mud in a flood zone, with a long shoreline and failing bulkheads — that threatened sedimentation and significant impacts on water and air quality.

 

Hurd argued the lagoon is a human-made urban water feature with fill used to create its residential peninsulas, is surrounded by homes, roads and other infrastructure, is treated with chemicals, used as a drainage catchment and acts as a members-only recreational facility. He added that “exponentially” larger projects across the state and Bay Area, including the entire lagoon neighborhood itself, have been built on waterfront fill and bay mud, so it does not represent an unusual circumstance.

 

At both the commission and council hearings, attorney Mark Wolfe represented Brig.

 

“If you look at the land-use map, (the lagoon) is designated open space. I’ve never heard of open space that’s urban,” Wolfe said. He pointed to its use as a habitat for migrating birds, unknowns like soil composition and that an exemption would limit input from the public and transparency from oversight agencies.

 

But Lynch and Wilkinson arrived armed with legal codes and court rulings, asking only minimal, clarifying questions of Hurd before interrogating Wolfe for nearly an hour.

 

Lynch started out by picking apart Wolfe’s borrowing of the similar phrase “qualified urban use,” to assert the lagoon didn’t meet the requirements. He noted the infill-exemption language hasn’t been updated “in the 20 years since that phrase was first defined” and wondered why the courts, or the council, should consider it.

 

Wilkinson then focused on what courts have said about urban uses and appeared to deliver the fatal blow when she noted that in the Friends of Mammoth case in 2000, courts found that “urban” refers more to a location than to the type of use, setting a precedent for cases that followed. In that case, courts established that a golf course on the outskirts of the city, surrounded by undeveloped forest land, did not qualify as urban. A subsequent ruling, 2006’s Banker’s Hill, found that a park was an urban use because of its location in the middle of a city, and it didn’t use the newly established “qualified urban use” definition asserted by Wolfe.

 

Wilkinson then asked Wolfe whether a golf course in the center of Los Angeles was urban.

 

“I would tend to agree, yes,” Wolfe said.

 

Wilkinson drew the same comparison to remote Phoenix Lake, outside of Ross, with its limited roads and no infrastructure.

 

“That seems very different from a lagoon in the middle — smack middle — of the city, that is entirely surrounded by houses, that is used for recreation and that is managed by a property owners’ association,” she said.

 

While Wolfe and other project opponents noted further study would be of significant benefit to the community through transparency and review, Mark noted that the argument was, unfortunately, “not what we’re required to evaluate,” as the council was bound to legally defined criteria for considering an exemption. He noted the council similarly could not consider the threat of the larger 70-unit project in making its decision.

 

During his rebuttal to Wolfe’s presentation, Hurd noted the developer must deal with city building codes and entities like the U.S. Army Corps of Engineers, along with other state and regional agencies. Doing so would require the developers to provide a great deal of environmental care on the project, with reviews, mitigations and monitoring coming during the permitting and construction phases.

 

“Thompson Dorfman is selling the concept of lagoon-front living. The last thing they want to do is build costly homes around it and fill it up with sediment and have it slump in,” Hurd said, and the developers “probably have the most interest in being sure that something bad doesn’t happen to the water feature that is the front yard of these homes.”

 

Though they didn’t grill Wolfe on the topic, the majority councilmembers had indicated early in the meeting they were persuaded that water quality wouldn’t be significantly impacted and that the project didn’t constitute an unusual circumstance.

 

In later explaining their votes, Lynch noted the memo from consultant Ascent Environmental found that the management plans, agency review and ongoing monitoring would mitigate the risks — and that ultimately the water quality of stormwater runoff into the lagoon would be improved, not harmed. He added that because there’s already housing at the site and the lagoon itself is ringed by housing, he couldn’t conclude the project posed any unusual circumstances.

 

Wilkinson and Mark agreed.

 

Wilkinson said she reviewed the hundreds of pages of documents submitted and reviewed by experts and that, with the pending regulatory requirements, there was “no substantial evidence” that the project was unusual or would pose significant effects.

 

“(The council) took an arm’s-length view until it was time to engage, but we always said that we would follow the law,” she said.

 

The council did, however, say they believed the entire 900 feet of bulkhead along the lagoon should be replaced before demolition begins. Staff said the Planning Commission could make that a condition of approval if the developer agreed.

 

Dorfman had said earlier in the hearing that he was committed to replacing the bulkheads but later added by email that he needed to work with the city and other agencies to coordinate specific timing.

 

“Bulkhead replacement should be done as part of the logical sequencing of the initial demolition and infrastructure activities on the site,” he said.

 

While questioning Hurd during his presentation, Cooper put forth a California Public Resources Code definition that “urbanized areas” are cities or tri-city areas of at least 100,000 people, appearing to suggest nothing in Belvedere could be deemed an urban use.

 

“I also truly hope that whatever decision is made tonight, that either way, the developer does not think that this is being denied, and that the project could not move forward,” she said toward the meeting’s end while explaining her dissenting vote. “This is simply about any kind of significant environmental issues facing our environment in Belvedere, which we know is — has a lot of issues.”

 

Cooper said she agreed with the Ascent memo that, under a section of the environmental code, the lagoon would not be considered an urban use. But Lynch sought clarification, asserting the cited code — on “qualified urban uses” — didn’t apply to the case and that Ascent, a few paragraphs earlier, had made a more relevant finding that the lagoon was an urban use.

 

Hurd had sought to disqualify Cooper from deliberations because of her connections to Brig. At the start of the meeting, City Attorney Andrew Shen announced she could participate, saying assertions that Cooper was a founder of the group or sat on its steering committee were unsubstantiated and that she ended her membership activity when she launched her council election campaign in mid-2022.

 

Shen did not disclose that Cooper was an early voice of the group with Hansen, the chair, writing “on behalf of” the group to the Marin Environmental Housing Collaborative, co-signing a correspondence on Brig letterhead at least once with Hansen and authoring a letter to the editor in The Ark as a Brig member. There were no other available records of individual members using Brig letterhead, including Susan Cluff, who also calls herself a member but has said she co-founded the group with Joyce Griffin in April 2021. During her council candidacy in October 2022, just weeks before the election, Cooper was included on emails among Hansen, Wilkinson and Mark seeking Brig’s help in soliciting accessory-dwelling-unit letters of interest toward meeting state housing goals.

 

City Manager Robert Zadnik confirmed her Brig letters did not impact the city’s decision but would not confirm whether Cooper would have been disqualified had she been a founder or steering-committee member.

 

Cooper did not respond to requests for clarification on her role with Brig, though in interviews during her election campaign, she said as a councilmember she would have an open mind and consider all sides.

 

Public voices opinions

 

The City Council received some 84 letters on the project ahead of the meeting, with 18 speakers during, most in opposition to granting the exemption.

 

Cluff, of Peninsula Road, wrote that the developer’s submitted documents often contained different, inaccurate or inconclusive information, were frequently revised and didn’t hold up to scrutiny.

 

Andrew Barnett of Peninsula Road said a full review would cost less than 1% of the total project cost and could be completed within six months, allowing experts and the public to review potential risks, require mitigation plans to reduce those risks and require ongoing monitoring during construction.

 

During the meeting, Bethany Hornthal of Peninsula Road called the project a “modern-day Trojan Horse” that abused affordable-housing laws to create a project that’s detrimental to the community but lines the developers’ pockets.

 

Harry Somerfield of San Rafael Avenue and William Rothman of Cliff Road separately requested a full environmental review, saying they were worried about noise and vibration from any pile driving during construction.

 

Linda Bine of San Rafael Avenue said lagoon pollution could lead to an environmental disaster to a fragile ecosystem that serves as a vital feeding and resting area for 1 million birds each year.

 

Dana and Susan Hemberger of Peninsula Road wrote they’ve been told to conserve water and electricity while natural gas “is on its way out,” with Dana Hemberger later writing that additional traffic the project would create would negatively impact the community and environment.

 

Andrew Frankl called the 70-unit alternative project “blackmail” in a letter and instructed the council: “No surrender please!”

 

Laura and Matt Blair of Acacia Avenue initially sent a letter asking the council to require environmental review but, after seeing the 70-unit alternative, encouraged the council to allow the 40-unit project to proceed.

 

Eugene Porter, a former Mallard Road resident, said he knew firsthand of the condition of the bulkhead and that the project shouldn’t proceed without further study.

 

Steve Silberstein of Cliff Road in his letter called Brig a “very vocal group” of residents who don’t live near the project but object to every detail, including apartments where other two- and three-story apartments are close by. He said the request for environmental review as a tactic to kill the project has forced a new choice: grant the appeal and get 40 units — or deny the appeal and get 70.

 

Former Mill Valley Mayor Betsey Cutler, former Strawberry Design Review Board member Isis Schwartz, Marin Organizing Committee leader Marta Villela and several others across the county wrote boilerplate letters in favor of the exemption, saying Belvedere needs more housing to meet state requirements.

 

Paul Jansen of San Rafael, a retired city planning and community development director, said it was clear the project met the urban-infill exemption and that the project represents the best opportunity to meet housing needs. Amy Skewes-Cox, the consultant who prepared Belvedere’s approved environmental report on its stalled seismic-upgrade project, agreed in her letter.

 

Former City Councilmember Claire McAuliffe said she had heard from older residents seeking an opportunity to downsize from the steep hills into smaller units.

 

“From the standpoint of someone who has talked to a number of people in Belvedere who are like me — older people that will need housing like this at some point. And I think that that’s a factor for you to consider,” she said. “We also always hear the squeaky wheel, but then there are people on the quiet side of it that don’t want to really speak up. But I am speaking for them.”

 

Reach Tiburon reporter Francisco Martinez at 415-944-4634.

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