Marin creek protection ordinance stirs new criticism

Dissatisfaction is rising about development restrictions along San Geronimo Creek that were approved by county supervisors in 2022.

The county Planning Commission is set to hear an appeal on Monday from a San Geronimo Valley property owner who has been ordered to move or demolish several accessory structures that were built without permits within a restricted area close to the creek.

“This is the first test case that highlights some of the challenges with the ordinance and how we may need to work with it and make some allowances for existing developments to remain,” said Breeze Kinsey, who operates CivicNet, a planning consultancy, together with his father, former Marin County supervisor Steve Kinsey.

The regulations also might have played a role in a failed effort by the Two Valleys Community Land Trust to create five affordable dwellings at 6956 Sir Francis Drake Ave. in Forest Knolls.

An estimated 50 people attended a meeting at the San Geronimo Valley Community Center on Oct. 9 to discuss the rules. Supervisor Dennis Rodoni attended.

“After almost three years, we have learned the ordinance can be improved and look forward to those discussions soon,” Rodoni wrote in an email.

Hal Russek, executive director of Two Valleys Community Land Trust, said he participated in the meeting to talk about his organization’s frustrating experience trying to get a septic system approved for its housing project. Russek said other attendees were upset about not being able to build accessory dwelling units on their properties.

“Breeze represents many of those homeowners,” Russek said.

In July 2022, the county created a stream conservation area, known as the SCA, that prohibits all new building within 35 feet of San Geronimo Creek and its tributaries. The tributaries include all ephemeral streams.

In most cases, the ordinance also requires a discretionary permit and site assessment before clearing vegetation, increasing impermeable area or making any alteration within 100 feet of the creek.

The regulations were tailored to satisfy the concerns of the Salmon Protection and Watershed Network, known as SPAWN. SPAWN had sued the county numerous times over the preceding 15 years seeking greater protections for the spawning grounds of endangered coho salmon.

On Monday, the Planning Commission will hear an appeal by a family trust that owns a 14,000-square-foot lot in Forest Knolls where several accessory structures have been built without permits. After a complaint was filed with the county about the buildings in July 2022, the owner of the property, the Ouden family trust, began efforts to legalize them.

In August, the county’s planning division informed the owner that it had to either move the buildings — a 145-square foot greenhouse, a 292-square-foot art studio, a 160-square foot shipping container/woodshop and a 151-square-foot shed — or demolish them.

The owner has also been ordered to remove two concrete pads that had tents erected above them. All of the structures are located within a 100-foot streamside conservation area buffer.

Breeze Kinsey, who is advising the family trust, said including ephemeral streams in the SCA ordinance has made it very difficult for property owners in the San Geronimo Valley to comply with the law.

“In a community full of hillsides and rivulets that puts about half of the structures in our community within the stream conservation area,” Kinsey said.

Kinsey said that a number of structures have been built in the area over the years without permits. One reason for that is that permitted construction triggers requirements for costly septic system upgrades.

“The strict application of the SCA ordinance prevents those structures from being able to be brought into compliance,” Kinsey said. “There is no room in the ordinance to allow existing development to continue to exist.”

Kinsey also said the SCA ordinance played a role in Two Valley Community Land Trust’s decision not to proceed with plans to add an accessory dwelling unit and a junior accessory dwelling unit to a three-bedroom house at 6956 Sir Francis Drake Ave. and make all five rooms available at affordable rents.

Complications with the project ensued when the county informed the land trust that only two of the dwellings at the property were legal. That was crucial because the property’s allowed water usage is calculated based on the number of legal residences. Each dwelling is allowed 150 gallons per day. If a house’s water usage increases, that is deemed new construction.

The land trust needed to repair or replace the house’s failed septic system. Since the system was located within the SCA’s 100-foot buffer, it could repair the system but only if the house’s water usage remained unchanged.

Ultimately, the land trust decided to sell the property, which it had purchased for $850,000 using bridge loans from members and grants from the Marin Community Foundation and others.

Becky Gondola, a Marin County environmental health specialist, said there is a more basic reason why the land trust could not obtain a septic system permit.

“It’s the fact that the system could not meet code,” Gondola said. “It’s not the SCA’s fault.”

Gondola said the conditions at the site would not accommodate the type of class I septic system that the code requires.

“You dig down 8 or 10 inches and you hit rock,” she said. “You don’t have the soils there to be able to successfully discharge sewage.”

Kinsey and Russek believe the county’s requirement of 150 gallons of water per dwelling per day is higher than it needs to be.

“Nobody uses like 150 gallons,” Russek said.

Community Development Agency Director Sarah Jones said she appreciates that argument, but added, “You can’t design for the average; you need to design for the higher end of the spectrum on water use so that you don’t have a system that fails.”