Marin City housing project opponents get limited court win

A Marin County Superior Court judge has handed a partial victory to a group seeking to halt a 74-apartment building in Marin City, but it is unclear whether the decision will slow, let alone stop, the project.

The ruling, issued Wednesday, bars the California Municipal Finance Authority from issuing multifamily housing revenue bonds for the five-story development at 825 Drake Ave. But the judge denied the plaintiffs’ other requests.

“Plaintiffs have not demonstrated that were they to prevail on the merits they would be entitled to enjoin construction work on the project,” Judge Stephen Freccero wrote in his decision.

Save Our City, an advocacy group, and the group’s co-founder, Marilyn Mackel, a Marin City Community Development Corp. board member, filed an initial suit on May 18. The action seeks to invalidate the Marin County Board of Supervisors’ decision in March to approve the issuance of $40 million in tax-exempt revenue bonds that will be used to underwrite the project.

On July 27, the plaintiffs filed a new legal action, seeking a temporary restraining order to mandate several court-ordered actions.

Save Our City and Mackel asked the court to prohibit the authority from issuing the revenue bonds. The plaintiffs also asked the court to prohibit the developers from using any funds obtained through issuance of the bonds for “land acquisition, demolition, or construction activities” associated with the project.

The county issued demolition and building permits for the project on May 26. But the project opponents, who include many Marin City residents, objected when the developer, Pacific West Communities, began to clear the site for construction in July.

When the plaintiffs submitted their request for a temporary restraining order several days later, the developers agreed not to engage in construction work until Freccero had rendered his decision. However, they reserved the right to demolish a building on the property and to continue to clean up the site.

In his decision, Freccero said there might be grounds for invalidating the supervisors’ decision to approve issuance of the bonds.

“Some of those who voted to approve the financing indicated the Board had no discretion to refuse to approve the bonds because the project had been subject to expedited approval under SB-35,” he wrote.

Freccero said that while the project was approved ministerially in 2020 under Senate Bill 35, supervisors nevertheless had the legal discretion to vote against issuing the bonds.

“The court’s determination is of course not final and does not represent an adjudication of the ultimate rights in controversy,” he added.

During arguments at a hearing on Aug. 25, Freccero expressed skepticism regarding whether the invalidation of the supervisors’ approval would effectively block the project.

“If there has been a sale of a bond to a private party, why doesn’t the timing of this matter make the entire challenge moot?” Freccero asked the plaintiffs’ counsel. “If in fact the board’s issued bonds, what can the court do?”

The plaintiffs’ attorney, MIchael Lozeau, didn’t concede that the bonds had actually been issued. Daniel Cucchi, the attorney who spoke for the defendants, said the exhibits show they were issued. Lozeau said there is no evidence that funds have been paid to the developer.

The judge asked Lozeau what the court should do if the bonds have already been purchased.

”Then it might be incumbent on us after that to then follow up with various taxpayer claims and things to disgorge the money from wherever it might be,” Lozeau said. He said the plaintiffs have filed a separate claim in San Diego County to invalidate the bond issuance.

Cucchi said that he is unaware of any legal precedent for the kind of challenge being made by the plaintiffs.

“So there is a bit of a lack of clarity on what exactly occurs,” Cucchi said.

On Friday, Caleb Roope, the chief executive officer of Pacific West Communities, said, “The bonds have been issued and they have been purchased and funds have been advanced on those bonds. It doesn’t make much sense to me that that would all be unwound.”

Roope has agreed to submit some design changes to county planners for their review and approval before beginning construction. Roope has pledged to alter his plans to provide at least one parking space per apartment, and make landscaping and other design changes to render the building less visually obtrusive.

Roope said he expects to submit the plans to the county within the next month or two. He said he will provide advance notice to the community before beginning construction.

Save Our City planned a rally from noon to 1 p.m. Saturday in front of the proposed development site. The group is seeking support from donors to continue its legal battle.

“I was disappointed to see that even in the preliminary injunction hearing, the county stood silent,” Mackel said. “They did not defend their approval of the bonds, but also did not have the moral fortitude to concede that they failed to consider our concerns when they approved the bonds.”

Marin County Counsel Brian Washington said, “It is very common for the county to allow a developer to defend legal challenges to project approvals and have the county’s role be limited to being available to the court for questions. This approach seems particularly appropriate here where SB 35 stripped the county of its normal, discretionary land use decision-making authority.”