Belvedere commission throws wrench into housing proposal

Belvedere will require the developers of the controversial Mallard Pointe project to undergo an environmental review, a move a company official described as an “abuse” of state law that will backfire.

The decision, made unanimously by the city’s Planning Commission on Tuesday, was against the city staff’s advice but in line with most who turned out to urge commissioners to call for greater oversight.

Requiring an environmental impact report under the California Environmental Quality Act means the project, which as proposed only uses about half of the state’s density bonus law, is about to get bigger because of the time and expense of completing the review, according to the developer.

“Their action can only be interpreted as a tactic to deliberately delay the processing of our project and the creation of new housing,” said Bruce Dorfman, a partner with the Mill Valley development group Thompson Dorfman Partners.

“We will pivot to a new project alternative that takes full advantage of state density bonus law and recent CEQA streamlining legislation to design a significantly larger project,” he said.

The area allows for 48 to 56 residences, and with 50% density bonus laws that could be 72 to 84 residences, Dorfman said. However, he said, the company could apply for relief through the so-called “builder’s remedy” and build an “unlimited” number of residences because the city has yet to complete its housing element.

Dorfman said “hundreds of thousands of dollars” already have been spent on research to support the request to exempt the project from a full environmental review.

“Consequently, to justify spending more time, money and effort pursuing a CEQA finding that will ultimately yield the same results as presented Tuesday, we need a larger, more intensive redevelopment of the site,” Dorfman said. “The Planning Commission’s actions are a textbook case of CEQA abuse, particularly considering the proposed project is only 18 units larger than what currently exists at Mallard Pointe.”

The project, one of the biggest housing plans for the wealthy enclave in decades, proposes the demolition of 22 residences to make way for 40 new dwellings in five duplexes, six single-family homes, a 23-apartment building an an accessory dwelling unit. The group bought the property for about $21 million in 2020 and submitted a project application in January 2021.

City staff and consultants had recommended that the Planning Commission approve the project, which included a zoning waiver and an exemption from environmental review.

On Tuesday, residents packed City Hall for the nearly seven-hour hearing to express their concerns about the development proposal.

The main issue centered on the lagoon and potential environmental impacts to it. The project qualifies for a class 32 “infill” exemption from the kind of environmental review CEQA would require, according to city consultants.

The consultants said the project is exempt because it is consistent with the general plan and within city limits; it is served by required utilities and public services; it is not larger than 5 acres; it is on land with “no value” as habitat to endangered or threatened species; it won’t result in significant noise, traffic, air or water quality effects; and it is “substantially” surrounded by urban uses.

“Please ask yourself: Why does CEQA exist?” said Ken Johnson, president of the Belvedere Lagoon Property Owners Association. “It is really an excellent process for identifying problems and then the city deciding if they want to mitigate those problems, find fixes for those problems, but the key is it’s all done before the project begins. Process is so important to find the correct solutions.”

Commissioners and residents questioned whether the surrounding lagoon truly is an “urban use.”

Belvedere Residents for Intelligent Growth, a volunteer group of about 600 residents, argued against the developer’s requests. Group representative Mark Wolfe argued it does not qualify for a CEQA exemption because the lagoon does not fit the definitions of urban use.

One of the reasons, he said, is that the lagoon is not artificial, referencing a 100-year-old photo of it. He also noted that the general plan considers the lagoon open space that is used by migratory birds.

“This was a natural feature that was always connected to the bay,” Wolfe said. “This is not a nuanced question. The Belvedere Lagoon is not an urban use. It is certainly not a human-made recreational water feature, and if it is, then Shasta Lake is, too.”

Wendy Manley, a legal representative for the Belvedere Lagoon Property Owners Association, also spoke against the project. She stated that there is a possibility of significant water quality and geological impacts to the lagoon and site — both exceptions to the class 32 exemption from CEQA the developers want. Sediment and other pollutants washed by rain into the lagoon during construction is a concern.

The bulkheads, which are retaining walls along a waterfront, were debated at length. While the developers said they would replace necessary bulkheads, the quality of the current ones was unclear.

“They’re old and they’re failing,” Manley said. “And if they’re not replaced, they will continue to shift and settle, releasing increasing amounts of sediment into the lagoon over time.”

Many residents lined up to state their desire for environmental review. Most expressed concerns about the state of the bulkheads, the environmental impacts of the project, and the zoning requirements of the area.

“What concerns me is the environmental integrity of the build in one to two decades from now,” resident David Smith said. “The developer will be gone, yet the project will remain to distinguish what we all recognize as the center of the city of Belvedere.”

“I grossly disagree that the lagoon is urban use,” said Randee Binstock, a resident who lives across from Mallard Pointe. “I just request that you do CEQA so we know what’s going on, before the development starts.”

“To think that you’re going to demo a 2-acre lot and have a huge dirt pile and not have siltation going into the lagoon with the first big rain is beyond absurd,” said Andrew Barnett, a resident for 34 years. “We have to know what we’re looking at with this massive project.”

“To allow a project that prioritizes profits over people is contrary to the mission of the city and of the commission,” said Jim Hornthal, a resident and member of the citizen group.

Tom Price and his wife have lived on the lagoon since 1977. He agreed with the arguments against the CEQA exemption, stating he needs more information.

“It’s imperative that the citizens of Belvedere receive a complete environmental review to totally understand the short and long-term aspects of the project,” Price said. “We need to know.”

Commissioner Kevin Burke pointed out that the lagoon is connected to Richardson Bay waters and not solely pump-operated, as a report stated. He wondered if that fact was considered in the analysis.

“Our understanding was that it can be manipulated by humans and that it wasn’t a significant ecological feature,” said Tanya Jones, a planner with the city’s consultant, Ascent Environmental.

Under the state housing mandate, the city must plan for 160 new residences over the next eight years, with a portion of those for low- and lower-income households. Belvedere lists Mallard Pointe as a potential site for housing in order to meet the state’s requirements. The developer noted in the presentation to the commission that having it listed in the housing element is a commitment to seeing a housing project through.

After reviewing a draft housing element, the state told the city it needed to rezone in order to meet housing requirements.

Mallard Pointe is an R-2 zone — meaning apartment buildings are not permitted. The developer applied for a concession under the state’s density bonus laws, which allow developers to increase the density on a property above what is permitted under the city’s land use plan, as long as the project includes low-income housing.

Mallard Pointe qualifies because four residences, or 10%, are for low- and very-low-income households. When a project qualifies for this, it is allowed waivers and concessions, and the developers used this to build an apartment building in the R-2 zone.

The draft environmental impact report will most likely return to the Planning Commission, where under CEQA there will be public hearings and public comment periods. City Manager Robert Zadnik said that if the project changes significantly, the developer will have to submit a new application to the city, which would restart the process.

A bigger project would probably have to complete a similar environmental review, which is “clearly” a serious concern in the community, according to Zadnik.

“Our goal remains to help meet the need for housing, particularly affordable housing, in our community in a manner consistent with our community development standards and with sensitivity and full understanding of potential environmental impacts,” Zadnik said.