§ 22.64

This Chapter establishes procedures for various types of Housing Development Regulation Compliance Reviews (Housing Compliance Reviews) that provide for ministerial review of housing development project applications.

(Ord. No. 3780, § 1(exh. A), 2023)

There are three distinct types of Housing Compliance Review applications, which apply as described below:

A.

Type 1. Development proposed in the Form Based (FB) combining district, under the regulations of the Marin County Form Based Code.

B.

Type 2. Development proposed under the statutory authority of Senate Bill 9 (2021, as subsequently amended). Urban lot split applications are reviewed under the Urban Lot Split provisions in section 22.80.064.

C.

Type 3. Development proposed under the statutory authority of Senate Bill 35 (2018, as subsequently amended), if applicable.

Application of the Housing Compliance Review preempts the application of discretionary development entitlements. Specific procedures for reviewing these three types of applications are provided in this Chapter. All of these types of review are ministerial in nature and shall conform to the requirements of Development Code Section 22.40.052 for ministerial planning permit reviews, except for those deviations specifically established in this Chapter.

(Ord. No. 3780, § 1(exh. A), 2023; Ord. No. 3819, § I(exh. A), 2024)

An application for a Housing Compliance Review shall be submitted, filed, and processed in compliance with and in the manner described in Chapter 22.40 (Application Filing and Processing, Fees).

Housing Compliance Review application forms are available online and at the Agency's public service counter.

(Ord. No. 3780, § 1(exh. A), 2023)

22.64.040 - Application Review for Type 1 Projects (Form Based).

The Director may only approve or conditionally approve an application for a Type 1 Housing Compliance Review if the project is consistent with all of the applicable standards in the Marin County Form Based Code. Deviations from these standards are subject to Design Review (Chapter 22.42), or the Exceptions process for civil engineering standards (Chapter 24.15) related to parking and access improvements.

(Ord. No. 3780, § 1(exh. A), 2023)

The Director may only approve or conditionally approve an application for a Type 2 Housing Compliance Review if the project is consistent with all of the applicable standards in Section 22.32.184 (Senate Bill 9 Development Standards).

The County shall only deny a Type 2 Housing Compliance Review application that is otherwise eligible for SB 9 processing if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of California Government Code Section 65589.5, upon public health and safety or the physical environment and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.

(Ord. No. 3780, § 1(exh. A), 2023)

22.64.060 - Application Review for Type 3 Projects (SB 35).

All sites for Type 3 (SB 35, if applicable) projects are governed by the FB (Form Based) Combining District. The Planning Commission is the Review Authority for Type 3 (SB 35) projects, and the Planning Commission may only approve or conditionally approve an application for a Type 3 Housing Compliance Review if the project is consistent with all of the applicable standards in the Marin County Form Based Code.

Type 3 (SB 35) applications are subject to the mandatory procedures provided below.

A.

Preliminary Application Filing. An applicant shall file a notice of intent to submit an SB 35 Housing Compliance Review application in the form of a preliminary application consistent with Government Code Section 65941.1. Complete Building Permit applications for the project shall be submitted concurrently with the Preliminary Application.

An applicant for an SB 35 housing development project shall be deemed to have submitted and filed a preliminary application upon providing all of the following information about the proposed project to the County:

1.

The specific location, including parcel numbers, a legal description, and site address, if applicable.

2.

The existing uses on the project site and identification of major physical alterations to the property on which the project is to be located.

3.

A site plan showing the location on the property, elevations showing design, color, and material, and the massing, height, and approximate square footage, of each building that is to be occupied.

4.

The proposed land uses by number of units and square feet of residential and nonresidential development using the categories in the applicable zoning ordinance.

5.

The proposed number of parking spaces.

6.

Any proposed point sources of air or water pollutants.

7.

Any species of special concern known to occur on the property.

Whether a portion of the property is located within any of the following:

a.

A very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within the state responsibility area, as defined in Section 4102 of the Public Resources Code. This subparagraph does not apply to sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development, including, but not limited to, standards established under all of the following or their successor provisions:

i.

Section 4291 of the Public Resources Code or Section 51182, as applicable.

ii.

Section 4290 of the Public Resources Code.

iii.

Chapter 7A of the California Building Code (Title 24 of the California Code of Regulations).

b.

Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993).

c.

A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless either of the following apply: 1) The site is an underground storage tank site that received a uniform closure letter issued pursuant to subdivision (g) of Section 25296.10 of the Health and Safety Code based on closure criteria established by the State Water Resources Control Board for residential use or residential mixed uses (this section does not alter or change the conditions to remove a site from the list of hazardous waste sites listed pursuant to Section 65962.5); or 2) The State Department of Public Health, State Water Resources Control Board, Department of Toxic Substances Control, or a local agency making a determination pursuant to subdivision (c) of Section 25296.10 of the Health and Safety Code, has otherwise determined that the site is suitable for residential use or residential mixed uses.

d.

A special flood hazard area subject to inundation by the one percent annual chance flood (100-year flood) as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency.

e.

A delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code

standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2.

f.

A stream or other resource that may be subject to a streambed alteration agreement pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code.

g.

Any historic or cultural resources known to exist on the property.

h.

The number of proposed below market rate units and their affordability levels.

i.

The number of bonus units and any incentives, concessions, waivers, or parking reductions requested pursuant to Section 65915.

j.

Whether any approvals under the Subdivision Map Act, including, but not limited to, a parcel map, a tentative map, or a condominium map, are being requested.

k.

The applicant's contact information and, if the applicant does not own the property, consent from the property owner to submit the application.

l.

The number of existing residential units on the project site that will be demolished and whether each existing unit is occupied or unoccupied, and the income levels of any existing tenants.

m.

A site map showing a stream or other resource that may be subject to a streambed alteration agreement pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code and an aerial site photograph showing existing site conditions of environmental site features that would be subject to regulations by a public agency, including creeks and wetlands.

n.

The location of any recorded public easement, such as easements for storm drains, water lines, and other public rights-of-way.

B.

Timeline. Within 180 calendar days after filing a preliminary application, an applicant shall submit a formal Senate Bill 35 application, provided scoping consultation has concluded consistent with Subsection C, below.

C.

Scoping Consultation.

1.

Upon receipt of the preliminary application, the County shall contact the Native American Heritage Commission for assistance in identifying any California Native American tribe that should be noticed. The County shall provide a formal notice of the applicant's intent to submit a formal application to each required California Native American tribe within 30 days of preliminary application submittal. The formal notice shall be consistent with Government Code Section 65913.4(b).

2.

If, within 30 days of receipt of the formal notice, any California Native American tribe that was formally noticed accepts the invitation to engage in scoping consultation, the County shall commence scoping consultation within 30 days of receiving that response.

3.

The scoping consultation shall be conducted consistent with Government Code Section 65913.4(b). If, after scoping consultation is concluded, a development is not eligible for Senate Bill 35 streamlining, the County shall provide written documentation as required by Government Code Section 65913.4(b) to the applicant and any California Native American tribe that is a party to that scoping consultation.

4.

Tribal consultation concludes either 1) upon documentation of an enforceable agreement regarding the treatment of tribal resources at the project site (Government Code section 65913.4(b)(2)(D)(i)), or 2) one or more parties to the consultation, acting in good faith and after a reasonable effort, conclude that a mutual agreement cannot be achieved (Government Code section 65913.4(b)(2)(D)(ii)).

D.

Formal Application. If the development remains eligible to apply under Senate Bill 35 after scoping consultation consistent with Government Code Section 65913.4(b) has concluded, an applicant may file a formal Senate Bill 35 application for compliance review.

E.

Compliance Review.

1.

Scope of Review. The County's scope of review is limited to all of the provisions contained in this Development Code, Government Code Section 65913.4(a), and the objective standards in the Marin

County Form Based Code.

2.

Public Oversight and Application Review Timelines. The final review of a formal application shall be done by the Planning Commission during a hearing to determine if the application complies with all of the provisions contained in this Development Code, Government Code Section 65913.4(a), and standards of the Marin County Form Based Code, and shall occur within the following timeframes:

a.

Within 90 calendar days of formal application submittal for applications that include 150 or fewer housing units.

b.

Within 180 calendar days of formal application submittal for applications that include 151 or more housing units.

3.

Compliance Determination.

a.

Compliant Application. If the application complies with all of the provisions contained in this Development Code, Government Code Section 65913.4(a), and all applicable objective standards in the Marin County Form Based Code, the County shall complete any application review, Planning Commission hearing and any subdivision approval within the timeframes listed in Subsection E.2.

b.

Non-Compliant Application. If the application does not demonstrate compliance with all of the provisions contained in this Development Code, Government Code Section 65913.4(a), and all applicable objective standards, then the Planning Commission shall provide the applicant with written documentation of which standards the development conflicts with and an explanation of the reasons the development conflicts with each standard. If the application can be brought into compliance with minor changes to the proposal, the Planning Commission may, in lieu of making the detailed findings referenced above, allow the development proponent to correct any deficiencies within the timeframes for determining project consistency specified in C.(2) above.

c.

Resubmitted Application. If the project was found to be non-compliant, the applicant may resubmit a corrected application for Senate Bill 35 streamlined processing, and the County shall review it for compliance.

d.

Project Ineligible. If the project is ineligible for Senate Bill 35 streamlined processing, the applicant may elect to submit an application for the applicable discretionary approval.

F.

Decision on Project.

1.

Project Approval and Findings. The Planning Commission is the review authority for Type 3 Housing Compliance Review applications. The Planning Commission shall approve the application if it finds that the proposed development is compliant with all of the provisions contained in this Development Code, Government Code Section 65913.4(a), and all applicable objective standards of the Marin County Form Based Code.

2.

Conditions of Approval. The Planning Commission may impose conditions of approval provided those conditions of approval are objective and broadly applicable to development within the County.

G.

Post-decision Procedures.

1.

Subsequent Permits. Any necessary subsequent permits shall be issued on a ministerial basis subject to applicable objective standards. If a public improvement is necessary to implement a development subject to this Section, and that public improvement is located on land owned by the County, the County shall process any approvals needed as required by Government Code Section 65913.4(h).

2.

Post-Approval Modifications.

a.

Post-Approval Modification Request. An applicant or the County may request a modification to an approved development if that request is made prior to the issuance of the final building permit.

b.

Applicability of Objective Standards to Modifications. The County shall only apply objective standards in effect when the original application was submitted, except that objective standards adopted after the date of original submittal may be applied when: 1) the total number of residential units or total square footage of construction changes by 15 percent or more; or 2) when the total number of residential units or total square footage of construction changes by five percent or more, and it is necessary to subject the development to an objective standard beyond those in effect when the application was submitted in order to mitigate or avoid a specific adverse impact upon public health of safety, for which there is no feasible alternative

method to satisfactorily mitigate or avoid. Objective building standards contained in the California Building Code, as adopted by the County, shall be applied to all modifications.

c.

Post-Approval Modification Review Timeframe and Decision. The County shall determine if the modification is consistent with objective planning standards and issue a decision on the applicant's modification request within 60 days after submittal unless a new Type 3 Housing Development Review application is required, in which case a decision shall be made within 90 days.

3.

Expiration. An application approved consistent with this section shall remain valid for three years; however, an application approval shall not expire if the development includes public investment in housing affordability, beyond tax credits, where 50 percent of the units are affordable to households making at or below 80 percent of the area median income consistent with Government Code Section 65913.4(e).

4.

Extension. At the discretion of the Director, a one-year extension may be granted consistent with Government Code Section 65913.4(e).

(Ord. No. 3780, § 1(exh. A), 2023; Ord. No. 3819, § I(exh. A), 2024)

Chapter 22.70 - PERMIT IMPLEMENTATION, TIME LIMITS, EXTENSIONS