Marin judge blocks Tiburon site rezoning for housing

A Marin County Superior Court judge has ruled in favor of a Tiburon group seeking to exclude a bayside parcel from a controversial development proposal.

Judge Sheila Shah Lichtblau ruled that the town’s environmental impact report for its general plan and housing element — and the resulting decision to rezone 4576 Paradise Drive — violated the California Environmental Quality Act. The Committee for Tiburon, a group of around 100 residents, filed a petition challenging the environmental report in the fall of 2023.

“The Court finds that CEQA was not scrupulously followed in this case and that Tiburon failed to proceed in the manner prescribed by law when the EIR failed to include feasible analysis of the reasonably foreseeable impacts involving Site H for development of an additional 93-118 units,” Lichtblau wrote in the decision released on Sept. 19.

According to the state housing edict, Tiburon must plan to permit at least 639 residences by 2031. The town passed its housing element in May 2023 and rezoned the 9.6-acre property at Paradise Drive, known as Site H, to allow for 10 dwellings per acre. The rezoning meant developers could build between 93 and 118 residences.

Stuart Scheinholtz, a member of the group and resident of Paradise Cay, said he was alarmed when he learned about the town’s plans to include the site in its housing element.

“It wasn’t for like a couple of spec homes, it was for like 100 homes,” said Scheinholtz.

Petitioners worried that high-density development on the 9.6-acre property would have environmental, public safety and health ramifications. Concerns were aired about the site as an important habitat for protected species; its vulnerability to fire, landslide and seismic hazards; its poor accessibility from Paradise Drive; and its limited utilities access.

Scheinholtz specifically mentioned the danger in construction work and added traffic on Paradise Drive.

“It’s just a dangerous road,” said Scheinholtz. “There’s all these cyclists and blind curves. The idea that you’re going to have cement trucks, and steel trucks, and trucks hauling lumber and workers, and everyone schlepping back and forth on this road for a couple years, is insanity.”

According to the judge’s 16-page decision, the town argued that it was not able to do a specific environmental analysis on the site until the property owner, Sierra Pines LLC, submitted a detailed housing development application. The judge rejected this.

Lichtblau wrote that at the time of the final report’s certification, the town had information on potential environmental impacts that could stem from development of the site.

“For example, Respondent was aware of, as of at least 2019, issues relating to environmental issues, access, utilities, fire, and landslides on Site H,” she wrote.

This included knowledge of the area’s high fire and seismic risk, multiple creeks and expansive soil; old storm drain systems; antiquated pump station; and the need to widening and repave the road to meet current standards.

The ruling noted that the town did eventually include some site-specific environmental analysis — but two months after the final impact report was certified in May 2023. However, Lichtblau wrote this only proved that site specific analysis was feasible at the time the final EIR was drafted.

Lichtblau said that if the town wants to move forward with the site in its housing element, it will have to redraft and recirculate an environmental impact statement that reasonably analyzes the various impacts 118 residences on Site H could have to the environment.

Town Attorney Benjamin Stock said the town disagrees with the ruling. He said Tiburon could not analyze the project-level effects of housing developments of all parcels within the town. This is why a program-level review is done at that stage in the process, he said.

“The town believes the court misconstrued state environmental laws and the level of environmental review needed when there is no proposed development plan for the site,” Stock wrote in an email. “Petitioners who brought the lawsuit are concerned only about what happens at the one site near their property and only attacked the environmental impact report as to Site H and thus the court reacted to that, but it would be illogical and unfair to treat one property differently in a town-wide planning process.”

Lichtblau’s decision stated that the California Environmental Quality Act still requires agencies, even in program-level reviews, to analyze “reasonably foreseeable significant environmental impacts” adequately.

Stock said the town is evaluating its options and has not decided whether it will appeal the “erroneous” decision.

“The town currently has a certified housing element and will be analyzing what actions to take to ensure certification is maintained,” Stock wrote in an email.

The Committee for Tiburon recommends that the town focus on planning for more housing downtown, which would support small businesses and revitalize the area.

“We’re looking for a common-sense resolution to the town’s housing requirement,” said Scheinholtz. “We do not consider Site H to be a common-sense solution. If they want to continue to pursue that, then we will continue to push back.”