Strawberry neighbors sue to stop large residential care center

Residents in Strawberry have filed a lawsuit to block the construction of a five-story residential care center with 106 apartments.

The plan calls for a 150,655-square-foot building on what is now a wooded 6.6-acre parcel at 70 N. Knoll Road. The building will be located at the base of a hill in an area the Marin Countywide Plan designates as “ridge and upland greenbelt” because of the “visually prominent ridgelines.”

In its new housing element, the county eliminated restrictions on building in such areas. The 63-foot-building will loom over houses and apartment buildings directly below and include a subterranean garage with 72 parking spaces.

The care center will contain 71 independent living apartments with kitchens and 35 assisted living/memory care suites without kitchens.

The project was approved ministerially in December without review by the Marin County Planning Commission or the Board of Supervisors.

The plaintiffs in the lawsuit are a group of residents who live near the property, said Richard Drury, their attorney. He filed the action in Marin County Superior Court on Jan. 22.

The complaint lists the Tiburon Ridge neighbors and Scott Arwin as the petitioners. The filing says Arwin, an investment adviser who founded Ring Mountain Capital, lives near the proposed building and “will be directly and adversely affected by the project.” Arwin did not respond to a request for comment.

“The lawsuit is about requiring environmental review for a project as required by state law, and to require the project to comply with land use and zoning laws,” Drury said.

The suit asserts that the site is a habitat for protected species and that the project fails to comply with the California Environmental Quality Act.

“CEQA review and compliance with land use and zoning will ensure responsible, smart growth that respects the neighborhood and the environment,” Drury said.

Riley Hurd, an attorney representing the developer, said, “It is black letter law that ministerial projects are not subject to CEQA, full stop. This lawsuit boldly and blatantly ignores this fact.”

County supervisors designated the parcel for ministerial review by including it on a list of about 140 preferred development sites in the county’s housing element. Under state law, ministerial approval guarantees approval unless serious health and safety issues can be demonstrated. Such projects are not subject to the California Environmental Quality Act, and no public hearings are mandated.

The suit asserts that CEQA review is required because “the project is not eligible for ‘ministerial’ review or approval pursuant to the Form-Based Code.”

Marin County adopted a form-based code of objective building standards because under ministerial review only objective standards may be enforced by local governing bodies. Examples of objective standards include height, setbacks, lot coverage, percentage of open space, density and parking requirements.

However, state density bonus law offers developers who provide a certain amount of affordable housing in their projects concessions and waivers from even these requirements.

The suit seems to equate ministerial review with eligibility for approval using the form-based code. It states several reasons why the project is ineligible for review under the form-based code, most notably that it is a habitat for protected species. The suit states that 84 vertebrate species have been identified as inhabiting the site, including 20 special status species.

In addition, Drury said, “They have to remove 22 protected trees that are subject to a tree removal ordinance.”

Hurd said, “This lawsuit is really about one thing, stopping a much-needed housing project. For that reason, we will immediately seek an order requiring the plaintiffs to post a $500,000 bond to cover the developer’s costs and damages if the project is delayed by this lawsuit.”

State law requires a bond if an action is brought in bad faith for the purpose of delaying or thwarting a low- or moderate-income housing development, provided that posting the bond will not cause the plaintiff undue economic hardship. Senate Bill 393, which was signed into law by Gov. Gavin Newsom in September, shifted the burden of demonstrating economic hardship to the plaintiff.

Drury said that because the law Hurd is invoking only applies to projects that include low- or moderate-income housing, it does not apply here.

“My clients want to ensure production of affordable housing,” he said. “But this project includes no affordable units at all — only full market rate.”

The suit also asserts that the county erred by counting the 35 memory care apartments as a single dwelling, “resulting in unlawful density.” County code counts the memory-care rooms as a single unit because they lack full kitchens.

“Marin is the oldest county by median age in the Bay Area,” Hurd said. “It’s unfortunate that a select few with hilltop mansions are actively trying to prevent new senior housing in an area already developed with other apartment buildings and right near Highway 101.”

Drury said, “State law makes clear that while we need housing, we also need to protect the environment and surrounding communities. It is not an either-or decision. We can protect the environment while also providing environmentally responsible housing.”