Uploaded: Tue, Apr 3, 2012, 5:50 pm
Environmental group accuses town of illegal planning practices
Save Our Creek, a citizens group opposed to development at Magee Ranch in Danville, recently accused the town of Danville of illegally limiting voter approval of the controversial SummerHill Homes project.
Seventy-eight homes have been planned for the as-yet undeveloped 410-acre property southeast of Diablo Road and Green Valley/McCauley Road. One or two-story homes would be located on approximately 119 acres on the flatter portion of the site to avoid ridgelines and will range in size from 3,112 to 4,116 square feet, with an optional in-law unit. The remaining approximately 291 acres would remain as undeveloped open space.
The project would entail the construction of a new driveway from Diablo Road/Blackhawk Road adjacent to Jillian Way, which would serve as the primary entrance to the subdivision; access to the proposed custom homesites would be provided by separate project driveways located near Diablo Road /Clydesdale Drive and south of the intersection of Diablo Road/McCaully Road. The development would also include an eight-foot decomposed granite trail adjacent to Green Valley Creek.
Because the development is located on land designated for agricultural uses in the 2010 general plan, Save Our Creek said the project triggers provisions of the 2000 Danville Open Space Preservation Initiative, or Measure S, a measure that was approved by voters to limit development on agricultural land. As a result, Save Our Creek asserts that the town needs voter approval, by ballot measure, in order to move the development forward.
"It is unfathomable that Danville's government believes that it can ignore the legal right of Danville residents and decide for itself whether this project can move forward as proposed," said Maryann Cella, a Save Our Creek spokesperson. "I encourage everyone in Danville to join our cause…so as to ensure that this blatant disregard for the general plan and the Danville Open Space Preservation Initiative never happens again."
But town officials maintain that they have done nothing illegal. Land zoned for agricultural use may still have one home per 5 acres and the clustered nature of the homes in the development would adhere to that law, said Principal Planner David Crompton. Measure S is only enacted when a developer asks for a general plan amendment, not a rezoning request such as SummerHill Homes'.
"It's our opinion that they're not asking for a general plan amendment, they're asking for a rezoning and Measure S does not apply for rezoning," said City Attorney Rob Ewing, adding that the project has not yet been approved. "The general plan sets broad policy and definitions, and zoning follows below that. In this case...they didn't change the general plan designation, rather they applied for rezoning to cluster the development they'd be otherwise entitled to on the property."
In a Feb. 6, 2012 letter to the town, Save Our Creek also called for "a comprehensive planning study which identifies all constraints associated with development of the site as well as opportunities for continued agricultural, resource management, and open space use." Due to a delay in the completion of several studies and reports to be incorporated into the draft environmental impact report for the project, the draft EIR is now expected to available for public review in July 2012.
"This violation of Danville's general plan demonstrates yet another reason why this project is inappropriate for Danville and its residents. This development, in its current form, is completely inconsistent with the Town's promise, its vision and its general plan," said Danville resident and Save Our Creek member Todd Gary.
After the draft EIR is released, the town will hold a series of public hearings where residents can voice their opinions and concerns on the project. According to the town website, a public hearing on the final EIR and the project are projected to occur in early 2013.
"We're not planning for development, but we know that the land, as it is, has some development rights and potential," Crompton said. "We want to provide guidance for how that development should occur when the application comes in. "
Posted by Todd Gary
a resident of Danville
on Apr 5, 2012 at 7:07 pm
Mr. Barlow, your assumption begs the question: Has the Town made a "thoughtful and well-reasoned decision here," and would this major new subdivision in this traffic-bound corridor be a "wonderful and well-planned" community, or is the Town rather pushing through a pro-development agenda that disregards traffic, life safety, the environment, the rights of current residents, the Town's General Plan, and ultimately the law? It is the latter.
Please don't be fooled by the statements of Town spokespersons. I regret to say they are not being straightforward.
Danville's principal planner David Crompton says in this article: "We're not planning for development, but we know that the land, as it is, has some development rights and potential. We want to provide guidance for how that development should occur when the application comes in." Really? The Town received the development application for the subdivision in 2010, and has been acting on it ever since. The Town's own website says: "The proposed project consists of a development application by SummerHill Homes to subdivide an approximately 410-acre site into 85 single-family lots…" You can read the awful details here: Web Link
Danville's Town Manager Joe Calabrigo, speaking through Danville's Public Information Coordinator Geoff Gillette, comments above: "P-1 zoning is appropriate for consideration in most of the General Plan land use categories identified in the Danville 2010 General Plan, including lands designated for Agricultural use." This is blatantly false. The P-1 zone (through which they will cluster the homes on Agricultural land) is absolutely NOT consistent with an Agricultural land use designation under the Town's General Plan.
Here is the proof. While the language gets "legal," as you might expect, the principle is simple: You can't "zone" land preserved for agricultural use into residential development without first amending the General Plan.
Danville is required to have a General Plan by state law. Any zoning districts must be consistent with that General Plan under state law. (Cal. Gov't code § 65860.) The Town must deny approval of a subdivision tentative map if it is inconsistent with the General Plan. (Cal. Gov't code § 66474.)
"A key component of a general plan is a land use map indicating…land use designations and the specific land use restrictions that apply to each designation." (Danville 2010 General Plan, p.1)
"The land use designations are a set of official definitions for the land use types and intensities found in Danville. Each land use designation addresses the specific uses permitted…." (Danville 2010 General Plan, p.4)
"Descriptions of the specific designations in each of these land use types…indicate …the consistent zoning districts…." (Danville 2010 General Plan, p.43)
The General Plans specifically lists those zoning districts that are permissible in each type of land use designation. The P-1 zone is consistent with many commercial and residential land use designations, but not Agricultural. For example, the General Plan states:
"Single Family Residential-Low Density
Zoning: Zoning districts of P-1, R-40, R-20, and R-15 are consistent with the Single Family
Residential-Low Density designation."
However, for Agricultural land (which includes the land on which the Town proposes to cluster the vast majority of the subdivision homes for the SummerHill project), the P-1 zone is NOT permitted to be used:
Zoning: The A-2 zoning district is consistent with the Agricultural Designation." (Danville 2010 General Plan, p.52)
Instead, the Agricultural designation is reserved for agricultural uses, and any other uses require a General Plan amendment:
"Description: [Agricultural] land use designation is applied to lands which are currently under Williamson Act Contract or in agricultural use. Agricultural uses, including grazing, are permitted and encouraged. In the event that Williamson Act contracts for sites with this designation are not renewed, General Plan amendments to permit other uses may be requested." (Danville 2010 General Plan, p.52)
Simply stated, they can't put a P-1 zone on Agricultural land without first amending that land use designation. Even the Town's zoning regulations for the P-1 district make clear that the P-1 district must be consistent with the General Plan:
"32-63.1 General. … Intent and Purpose. … The planned unit P-1 district is intended to … ensure substantial compliance with the General Plan…."
"32-63.2 Uses. … Uses. The following uses are allowed in the P-1 district: Any land uses permitted by an approved final development plan which…are consistent with the General Plan;
" 32-63.5 Rezoning. … Rezoning and Development Plan Application. … [T]he application for rezoning to P-1 district…consists of each of the following: … A statement of how the proposed development conforms to, and is consistent with the general plan…."
Not under state law, not under the General Plan, not under the zoning regulations, can the Town rezone this land to a P-1 to accept the residential cluster homes and approve this subdivision, without first amending the General Plan to designate the land for residential use. If the Town amends the General Plan, we get to vote on it under Measure S, the law designed to protect Agricultural land from being converted to residential development without first securing voter approval. If the Town doesn't amend the plan, as they are currently stating they can do, and thereby circumvents Measure S and our voting rights, they are acting illegally.