Marin commission calls for reevaluation of stream buffer rule
The Marin County Planning Commission is considering changes to an ordinance that prohibits building within a certain distance of creeks and streams in San Geronimo Valley.
During a public hearing on Monday, the commissioners discussed potential flaws in the 2022 ordinance, which the county crafted to meet the concerns of the Salmon Protection and Watershed Network, or SPAWN. The organization had sued the county numerous times over the preceding 15 years seeking greater protections for coho salmon in San Geronimo Creek.
The discussion Monday was prompted by an appeal by a property owner, Leo Den Ouden, who has been ordered to demolish or move structures he built without permits within 100 feet of the creek. The property is in Forest Knolls.
Steve Kinsey, who was a Marin County supervisor before leaving the board in 2016, spoke on behalf of Den Ouden.
“We’re asking you not to deny this appeal,” Kinsey said. “Instead, we think that it would be helpful if you could continue this appeal to provide the staff an opportunity to investigate what it would take to correct this ordinance.”
The commission voted unanimously to continue the appeal for six months.
“Then we’ll hear back at that point as to what the solutions are both individually and on a broader picture,” said Greg Stepanicich, a member of the commission.
Den Ouden has been ordered to either demolish or relocate two detached accessory structures — a 145-square-foot greenhouse and a 292-square-foot art studio, which had a toilet installed in it — as well as a 10-foot-by-20-foot concrete pad. All three were built without permits and within 100 feet of an intermittent stream.
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 intermittent and 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.
Also at issue in the appeal are a 160-square-foot shipping container/woodshop, which had a toilet installed in it, and another concrete pad, both of which were built without permits. Neither is located within the SCA.
The Marin County Community Development Agency received a complaint about the structures in June 2022. It told Den Ouden he had to remove the three structures from the SCA or demolish them.
“Our code compliance division is reactive,” Marin County Planning Manager Jeremy Tejirian told commissioners on Monday. “They don’t go out and proactively look for these violations. They just respond to complaints.”
In his appeal, Den Ouden asserts that his structures in the SCA pose no threat to the fishery and that the ordinance provides no opportunity for offsite mitigation in lieu of moving the buildings, as originally discussed by public officials. Den Ouden hired Integral Consulting to conduct a site assessment.
“It does not appear that structures constructed by Mr. Den Ouden within the 100-foot buffer would result in an adverse effect (directly or indirectly) to the intermittent creek,” Luke Davies, a scientist with Integral, wrote in a report.
Kinsey said that the option of relocating the structures is notional.
“The reality,” he said, “is that between the septic system, the house and the area that must be reserved for two on-site parking spaces, there is no location outside of the SCA where these structures could have been placed.”
Kinsey said that should be a major concern for the county.
“You’re facing hundreds, if not thousands, of properties in the San Geronimo Valley that have an identical situation to this,” he said.
Commissioner Christina Desser said, “Until a few years ago, West Marin was a little like the Wild West. People just went out and did stuff. Getting permits didn’t seem like a big deal.”
Because permitted construction triggers requirements for costly septic system upgrades, much construction in Marin over the years has been done without permits.
Commissioner Rebecca Lind said, “I would like more information about the core septic issue. I do think that it’s part of the dynamic that’s occurring there.”
Kinsey also lamented the fact that the SCA ordinance provides no option for offsite mitigation as a remedy for illegal structures.
“That fee was presented to the Board of Supervisors as a fundamental part of the program,” Kinsey said, “and yet it doesn’t exist today.”
Tejirian expressed skepticism about the usefulness of a mitigation option in a case such as Den Ouden’s.
“You need to actually have an impact that you’re mitigating,” Tejirian said. “I’m not sure there is one.”
Tejirian said the situation in San Geronimo Valley, where there is a lot of illegal construction and no avenue to address it, is problematic.
“Without engaging in some kind of discussion with those who have litigated with us before, it’s difficult to chart a pathway forward,” he said.
Ken Bouley, executive director of the Turtle Island Institute, SPAWN’s umbrella organization, said Tuesday that “SPAWN is open to the idea of tweaking the ordinance.”
Bouley said SPAWN doesn’t want the the ordinance weakened, but if it is causing people trouble in situations where there is no impact on the fish, then “those things should be righted or at least looked at.”