The town of Danville acted improperly during its approval of a proposed residential development in the northeastern part of Danville last year, a Contra Costa County judge ruled this week.
"I think we feel pretty vindicated," said Stuart Flashman, the Oakland-based attorney who represented the plaintiff, Save Open Space-Danville (SOS-Danville). The group cited the town's process of rezoning agricultural land at the site as being the central issue of its lawsuit.
"We would respectfully disagree with the (judge's) interpretation," Danville City Attorney Rob Ewing said Wednesday.
Austin's written order, filed Monday, was a mixed ruling for each side, as the judge also denied all but one of the plaintiff's arguments that the town failed to adequately assess specific environmental impacts during its public review process.
This week's decision leaves the SummerHill project in limbo, as town officials weigh whether to accept the order or appeal it.
"We'll have to meet with the town council at this point and determine how it is that we want to move forward with it," Danville Town Manager Joe Calabrigo said Wednesday.
The civil dispute dates back nearly one year. SOS-Danville sued the town several weeks after the Danville Town Council gave final approval on July 2, 2013 to rezoning agricultural Magee Ranch land to planned unit development (P-1), allowing the housing project to proceed at the southeast corner of Diablo and McCauley roads.
The council had certified the project's final environmental impact report and approved SummerHill's major subdivision, development plan and tree removal request on June 18, 2013.
The lawsuit, in part, challenged the town's assertion that the project did not invoke Measure S, a ballot measure passed in 2000 that requires voter approval for developments aiming to change land-use designations of agricultural properties -- barring two specific exceptions that would allow council approval instead.
P-1 is not identified as an acceptable zoning option on agriculturally designated lands in the Danville General Plan (GP). Council members did not contemplate a general plan amendment to change Magee Ranch agricultural parcels to a designation specifically listing P-1 as a zoning option.
"The Town, in effect, changed the GP's designation and description of agricultural land to add P-1 as a consistent zoning category. And it did so without complying with Measure S," Austin wrote in his ruling in favor of SOS-Danville. "It appears that the Town interpreted the GP in such a way to essentially circumvent the mandate of Measure S."
The judge took his criticism a step further, saying, "But even if Measure S did not exist ... and using just the language of the GP itself, the agricultural land designation still could not be changed without amending the GP, and then after completing a comprehensive planning study."
Flashman lauded the judge's objection to the town's rezone approval, saying, "(that's) what my client has been telling the town all along."
Danville officials, according to Ewing, strongly disagree with Austin's assertion that the town may have attempted to circumvent Measure S.
"The judge's impression that we were trying to get around it is simply not true," Ewing said.
The town argues the approved development -- with the single-family homes clustered on approximately 38 acres of the site's flatter areas while avoiding steep slopes and leaving 372 acres as permanent open space -- is in line with general plan policies for the Magee Ranch property, which was labeled as a "special concern area," Calabrigo said.
The land, designated as agricultural, could be developed with up to 79 homes at a ratio of one home per 5 acres under the general agricultural district (A-2) zoning, but town officials preferred the option of clustering homes closer together and preserving open space, according to Calabrigo.
"The General Plan specifically states that, for Magee Ranch, subdividing the site into 5-acre lots is not acceptable, and allowable density must be transferred to limited sites. The most logical way to accomplish that is through P-1 zoning," Calabrigo said. "The zoning is simply a tool that allows for transfer of density ... In and of itself P-1 zoning doesn't create density."
In light of the ruling, Calabrigo said, the issue that remains is "not a question of if the property can be developed with homes Â… (but) of where and how development could occur."
Should the town council choose to accept the judge's order without appeal, the town would have to re-initiate its public review process, if the developers decide to proceed with the project. SummerHill representatives declined to comment when contacted Thursday.
The lawsuit also contended the town failed to adequately address potential impacts to traffic on Diablo Road, cumulative traffic impacts, bicyclists, California red-legged frogs, emergency access and evacuation, and consideration of project alternatives.
In this week's order, the judge denied all but one of SOS-Danville's environmental arguments, finding the town's environmental impact report properly addressed the specified topics, except for bicycle safety.
"The (town's) response appears to be based on the assumption that because the existing conditions are dangerous for bicycles, any added danger would not be a significant impact; but it does not provide any statistics about actual or projected numbers, or severity, of accidents," Austin wrote. "Nor does the response mention the possibility of any mitigation measure."
The town council has not yet set a date to discuss this week's ruling, according to Calabrigo. The next regular council meeting is set for Aug. 12, but the council could schedule a special meeting beforehand.
Under Measure S, the council could approve a land-use amendment by a four-fifths vote if it determines based on substantial evidence that the amendment is necessary to avoid unconstitutional taking of a landowner's property rights or to comply with state or federal law.
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