Uploaded: Wed, Aug 13, 2014, 7:02 pm
Danville to appeal ruling in SummerHill Homes lawsuit
Town council votes unanimously to challenge judge who said officials improperly approved new residential development
The Danville Town Council has voted unanimously to appeal a Contra Costa County judge's recent ruling that the town acted improperly during its approval of a new residential development proposed for the northeast part of town.
Mayor Robert Storer announced the decision publicly following the council's closed-session deliberations with legal counsel during Tuesday night's council meeting at the Town Meeting Hall.
"The Town Council will continue to strongly defend the right to determine consistency with our General Plan and continue to protect our ridgelines and hillsides," Storer said in an email Wednesday.
There is currently no exact timetable for submitting the appeal, according to Danville City Attorney Rob Ewing, but a notice of appeal must be filed with the state's Court of Appeal for the First Appellate District within about two months to meet the legal deadline.
The town plans to fight Judge Steven K. Austin's July 28 ruling that found the council was improper last year when it rezoned agricultural land at the project site, known as the Magee Ranch property, without first seeking a general plan amendment to change the agricultural land-use designation.
Environmental advocacy group Save Open Space-Danville (SOS-Danville) sued the town nearly one year ago to challenge the town's approval of the 69-home development proposed by SummerHill Homes for land at the southeast corner of Diablo and McCauley roads.
Town officials contend the council's endorsement of the project on July 2, 2013 was in line with Danville General Plan policies for the Magee Ranch property.
"(The appeal) is not particularly surprising to me," SOS-Danville's attorney, Stuart Flashman, said on Wednesday. "They are, one would have to say, defiant."
Flashman said his clients are currently weighing whether to file a counter-appeal of Austin's decision, which was a mixed ruling for each side.
The judge denied SOS-Danville's claims that the town failed to adequately address cumulative traffic impacts, consideration of project alternatives, and potential impacts to traffic on Diablo Road, California red-legged frogs, and emergency access and evacuation.
Austin did rule that the town failed to properly address potential bicycle safety impacts of the project. The council, at this point, has decided not to appeal the bike-safety aspect of the ruling, according to Ewing.
Representatives from developer SummerHill Homes offered no comment about the appeal when reached Wednesday.
Posted by SOS-Danville Group
a resident of Danville
on Aug 17, 2014 at 12:44 pm
Thank you for your excellent question, @Old Timer. Hope the following will help.
If you search the internet for "Measure S Danville 2000" you can read the entirety of Measure S including the accompanying ballot information. We have reprinted it below. You will see in the ballot information that current Council members Newell Arnerich and Mike Doyle were Council members in 2000, and as the proponents of Measure S(along with 2 other Council members---apparently the 5th was opposed to the Council's blatant attempt to defeat the public's Ballot Measure R),the key promise they made was the following:
"Measure S supports the General Plan's definition of Danville as an essentially built out community. Measure S offers Danville residents a deciding voice in any proposed change to areas not planned for development. Danville voters would have to approve any change in use on Open Space, Agricultural, or Parks and Recreation land."
Under the Danville General Plan, "Open Space" is defined as any land designated for "General Open Space", "Parks and Recreation", and Agricultural" use. Both the KB Homes Elworthy Ranch West 300+ acre parcel where there are now about 100 units, and the Magee 200-acre parcel where SummerHill wants to locate 66+ units, are designated for "Agricultural" use. Clearly, any voter reading the Council's promise in the ballot information would have assumed that developments such as KB's and SummerHill's would be a "change in use" to Agricultural land and would require a vote of public approval under Measure S before such projects could go forward. Now the Council is saying no, we didn't mean that; we were, in effect, just misleading you when we told you that in the ballot information. The Council members argue that the very land under the 100+ KB units is still in "Agricultural" use and that the very land under SummerHill's proposed 66+ units will be in "Agricultural" use just because it will still be designated for Agricultural use in General Plan. But we all know that is simply preposterous and thankfully Judge Austin agreed.
By the way @Old timer, what Newell Arnerich and Mike Doyle say 14 years later about their "intent" regarding Measure S is legally irrelevant. Their current statements are now just self-serving ones and are not legally reliable as evidence of what Measure S meant when it was passed 14 long years ago. What is legally relevant is what was said in 2000 by Arnerich and Doyle and the other Measure S proponents in the ballot information discussed above.
In any case, Judge Austin did not even need to examine the ballot information for Measure S in coming to his decision. He found that apart from Measure S the Town Council had violated the 2010 Danville General Plan's required procedural steps (i.e. a change in land use designation from Agricultural use to Residential use) in its SummerHill project approval(the same illegal procedures the Town Council followed in approving the Gulag Elworthy). As an aside, the judge said that the reason the Council had violated the General Plan's required procedural steps was that the Council apparently wanted to avoid triggering Measure S' public vote requirement.
General Plan Amendment - Open Space
Town of Danville
15,000 / 74.4% Yes votes ...... 5,161 / 25.6% No votes
See Also: Index of all Measures
Information shown below: Impartial Analysis | Arguments | Full Text
Shall the people of the Town of Danville enact an amendment to the Town's General Plan, known as the Danville Open Space Preservation Initiative, to preserve Agricultural, General Open Space and Parks and Recreation Land Use Designations and requiring voter approval for future general plan amendments to lands with those designations?
Impartial Analysis from City Attorney
A General Plan is a long term planning document that serves as the land use constitution for all future development within a town. Measure S, the Danville Open Space Preservation Initiative, would amend the Town of Danville's 2010 General Plan by adding a new policy regarding proposed land use changes for lands currently designated in the General Plan as Agricultural, General Open Space and Parks and Recreation.
The measure would readopt and reaffirm the existing land use designations of Agricultural, General Open Space and Parks and Recreation contained in the Town's General Plan. Properties with these land use designations represent approximately 40% of the total acreage within the Town. As defined in the General Plan, these land use designations generally allow either no or very limited development.
For properties within these land use designations, the measure would add a new process for approving any future change in land use. Under state law, general plan amendments may be approved by a simple majority of the Town Council after review and recommendation by the Town's Planning Commission. The measure would provide that if a general plan amendment changing the land use from Agricultural, General Open Space or Parks and Recreation to any other use is approved by the Town Council, the proposed amendment would then be subject to approval by the Town's voters at a subsequent election. Without voter approval, the proposed change would not become effective. The measure would provide one exception to the voter approval requirement for these land use changes. If the proposed general plan amendment is the minimum necessary to avoid an unconstitutional taking of the landowner's property rights or is the minimum necessary to comply with state or federal law, the amendment could be approved by a 4/5's majority of the Town Council. Any such action by the Town Council would have to be based on specific findings supported by substantial evidence and could occur only after two public hearings regarding the proposed amendment in addition to any other hearings normally required for approval of a general plan amendment.
If approved, this measure would remain in effect for 20 years and could be amended only by the Town's voters.
This measure will take effect immediately if adopted by a majority of voters unless a competing measure (Measure R, the Danville Public Planning Initiative) is also adopted by the voters and receives a higher vote total.
Copies of the land use map are available at the City Clerk's office. Phone 324-3388 for information.
Suggest a link related to Measure S
Links to sources outside of Smart Voter are provided for information only and do not imply endorsement.
Arguments For Measure S Arguments Against Measure S
The open spaces surrounding Danville define our small town character and enhance our outstanding quality of life. Preservation of open space has been a major goal since Danville's incorporation in 1982. Our park standards and open space dedication requirements are the highest in the county. A new General Plan, carefully written for today and the future, was adopted in August 1999. It reflects a broad-based community consensus reached after eighteen months and more than forty public meetings involving hundreds of residents. Measure S, "The Danville Open Space Preservation Initiative", is an affirmation of the vision embodied by our new General Plan. This General Plan designates 4000 acres - 40% of Danville - as Open Space, Agriculture, or Parks and Recreation, which represents almost all of the undeveloped land within Danville. Measure S preserves Danville's future by requiring voter approval to change any of those designations. •Measure S will preserve Open Space, Agriculture and Parks and Recreation lands.
•Measure S is simple, straightforward, and legally defensible.
•Measure S will protect the vision which has defined our community's history since its incorporation.
Measure S will enhance safeguards for the protection of open space and agricultural lands within our Town. The Measure ensures that any change in these areas would have to be supported by the community.
Measure S is a clear, concise, and effective alternative to Measure R, which is filled with outdated policies drawn from a General Plan that no longer exists, and will have to be sorted out in the courts. The voters of Danville deserve the opportunity to choose a measure that will protect what we all cam to this Town to find, and will do what it claims it will do. Please join in the preservation of our community by voting Yes on Measure S.
Millie Greenberg, Danville Mayor
Mike Doyle, Danville Vice Mayor
Newell Arnerich, Danville Councilmember
Richard L. Waldo, Danville Councilmember
Beverly Lane, Director, East Bay Regional Park District
Rebuttal to Arguments For
The Danville General Plan has just undergone its first significant revision in over ten years. The new General Plan was approved by the Town Council in August 1999 - well after the CAPP initiative petitions (Measure R) had been circulated. This is the same Town Council (except for one member who has stated his opposition to Measure S) which now brings you Measure S.
Why, now, do we suddenly need to pass Measure S and amend the new General Plan? The truth is - we don't.
Measure S is simply a ploy to defeat Measure R. This is one of the tricks commonly employed by developers to defeat citizen-sponsored initiatives. If voters can be confused by two initiatives they will probably just vote no on both of them. This preserves the status quo. Our Town Council saw this work against the CAPP initiative in San Ramon and has borrowed it for their own use.
If the Town Council really wanted the provisions of Measure S to be in the General Plan they could have included them when the plan was revised last year. There is absolutely no reason that this measure should be before you now - except to defeat Measure R.
Please do not be confused by the two competing measures. Read them both and decide.
Please join the undersigned Danville citizens and VOTE NO on Measure S.
Vote NO on Measure S - a "gimmick" measure placed on the ballot for one purpose - to defeat the CAPP initiative.
Measure S was put on the ballot by a simple vote of four members of the Town council - as compared to the four thousand Danville residents who signed the CAPP initiative petitions.
Measure S is bad for Danville. It:
•Requires the Town, not the developers, to pay for any elections.
•Was not subjected to the scrutiny of an analysis by Town Staff.
•Provides a "loophole". Future Town Councils could approve development without a vote of Danville residents by declaring that not approving a development would be a "taking" of private property.
•Could have been included in the General Plan update passed by the Town Council last August (at a cost in excess of $100,000.00).
•Does not reinforce the policy on agricultural land. A future Town Council could decide that large industrial is consistent with agricultural uses.
•Contains misleading wording when it states that the voters "reaffirmed and readopted" the land use designations in the General Plan when the voters never affirmed or adopted them in the first place.
•States that the Town "intends to adopt a UGB (Urban Growth Boundary)" when the UGB should have been included in the measure. This shows how quickly the measure was thrown together to combat the CAPP initiative.
This measure has too many loopholes, was put together too quickly, and does not guarantee the voters a say in development in Danville. Despite its name, it is NOT even an initiative. It is a GIMMICK placed on the ballot only to defeat the CAPP initiative. DON'T BE FOOLED. VOTE NO on Measure S.
Rebuttal to Arguments Against
Measure S is the product of a thoughtful and carefully built consensus reached after numerous public hearings and extensive public participation. It was placed on the ballot to offer Danville residents a meaningful choice between two very different paths to the future. It did not happen quickly, but is the result of a lengthy community-wide effort, and a logical extension of our outstanding new General Plan.
Measure S will protect the vision which has defined our community since its incorporation. The course laid out by our new Plan will continue to focus on our quality of life and well maintained, safe neighborhoods. Danville is one of the most admired communities in the Bay Area, and our exacting standards - embodied in Measure S - have been carefully developed to enhance our Town's special character.
Measure S supports the General Plan's definition of Danville as an essentially built out community. Measure S offers Danville residents a deciding voice in any proposed change to areas not planned for development. Danville voters would have to approve any change in use on Open Space, Agricultural, or Parks and Recreation land.
Measure S is clear, straightforward and precise. In two pages, it safeguards Danville's high development standards in an unambiguous, legally defensible way. Measure R sprawls across eight pages of muddled, outdated, and inaccurate policies which will result in expensive legal challenges. We urge the voters of Danville to read both measures and choose the one that best serves our Town.
Vote YES on Measure S.
Millie Greenberg, Danville Mayor
Mike Doyle, Danville Vice Mayor
Newell Arnerich, Danville Councilmember
Richard L. Waldo, Danville Councilmember
Text for Measure S
The People of the Town of Danville do ordain as follows:
Section 1. Intent and Purpose. The following findings are made in support of this measure.
•In August 1999, the Danville Town Council adopted the Town of Danville 2010 General Plan. The 2010 General Plan was adopted after 18 months of significant public participation, including numerous neighborhood meetings and public hearings. The General Plan represents a broad-based community consensus regarding the appropriate land uses and development patterns that may occur in Danville in the future.
•In order to ensure continued community consensus in the pattern of urban growth in Danville, this measure, the Danville Open Space Preservation Initiative, would require voters to ratify and approve any general plan amendment allowing development of lands currently designated in the 1020 General Plan as Agricultural, General Open Space or Parks and Recreation, which together represent approximately 40 percent of the land in Danville.
•Consistent with Policy 5.01 of the 2010 General Plan, the Town of Danville intends to identify an Urban Growth Boundary (UGB) that designates an adequate amount, range, and density of land use within the Boundary to meet projected needs of the community. The UGB will be adopted following environmental review and public hearings before the Town Planning Commission and Town Council.
•By requiring voter approval of changes to important open space, agricultural and parkland land use designations in the General Plan, this measure establishes a comprehensive program to ensure community concerns will be considered prior to development of lands not currently designated for urban development. Voter approval of smaller, infill development projects on lands already designated for development in the General Plan is unnecessary and does not further the goals of the 2010 General Plan.
Section 2. General Plan Amended. The Town of Danville General Plan is hereby amended by adding a new Policy 1.14 to read as follows:
1.14. The Land Use Designations of Agricultural, General Open Space and Parks and Recreation contained in the Town of Danville General Plan in effect on November 7, 2000, were reaffirmed and readopted by the voters of the Town in an election held on November 7, 2000. The lands with those Land Use Designations are graphically depicted on the Land Use Map contained in the General Plan. Until November 7, 2020, the Land Use Designations for those properties may be amended only by one of the following two procedures:
(a) By a vote of the people at an election; or
(b) By a 4/5's vote of the Town Council if the Town Council, after a public hearing, makes one of the following findings that is supported by substantial evidence in the record:
(i) That approval of the land use amendment is necessary to avoid an unconstitutional taking of a landowner's property rights and that the new land use is only the minimum necessary to avoid the unconstitutional taking of the landowner's property rights.
(ii) That approval of the land use amendment is necessary to comply with state or federal law and that the new land use is only the minimum necessary to comply with such laws.
Prior to amending the General Plan to redesignate land pursuant to subparagraphs (i) or (ii) above, the Town Council shall hold at least two noticed public hearings for the purposes of receiving testimony and evidence from the applicant and the public on the proposed amendment and any findings proposed in connection with such an amendment. This hearing shall be in addition to any other public hearings regularly required for a General Plan amendment.
Section 3. Effective Date. This measure shall become effective immediately upon approval by the voters. Upon the effective date, the provisions of Section 2 of this measure are hereby inserted into the Town of Danville General Plan.
Section 4. Interpretation and Severability. This measure shall be interpreted so as to be consistent with applicable federal and state laws, rules and regulations. If any section, subsection, sentence, clause, phrase or portion of this measure is held to be invalid or unconstitutional by a final judgement of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this measure. The voters hereby declare that this measure, and each section, subsection, sentence, clause, phrase or portion hereof would have been adopted or passed even if one or more sections, subsections, sentences, clauses, phrases or portions are declared invalid or unconstitutional. If any portion of this measure is held invalid as applied to any person or circumstance, such invalidity shall not affect any application of this measure that can be given effect without the invalid application. This measure shall be broadly construed in order to achieve the purposes stated herein.
Section 5. Amendment or Repeal. Except as otherwise provided herein, this measure may be amended or repealed only by the voters of the Town of Danville at a Town election.
Section 6. Competing Measures. This measure is intended as an alternative to and is inconsistent with the initiative measure entitled "Danville Public Planning Initiative" (DPPI) which would require voter approval of various land use actions by the Town and would establish an Urban Growth Boundary. The DPPI qualified for the ballot prior to completion of the Town's 2010 General Plan, adopted in August 1999. If both measures are approved by the voters on November 7, 2000, the measure receiving the greater number of affirmative votes shall supersede the other measure. No provision of the superseded measure shall be implemented or become effective.