By Tim Hunt
Dublin council pleases residents and risks litigationUploaded: Apr 24, 2018
With an election looming in November and citizens gathering recall signatures at supermarkets, the Dublin City Council decided to heed their voters and risk litigation with a developer last month.
Last month, the council considered UDR’s proposed Ashton at Dublin Station, the final parcel surrounding the East Dublin BART station. Although Mayor David Haubert initially indicated support for the project, he joined three other council members and denied the project. Last December, the council had directed staff to prepare a resolution to deny the project. The staff had recommended approval.
The 220-unit project is quite dense at 93 units per acre in three-, four- and five- story buildings. The overall site was approved at 64 units per acre.
The litigation risk for the city is significant. UDR’s attorney wrote a 19-page letter to the city listing reasons that the council was required to approve the project because of a development agreement that is 15 years old. Developers have paid to extend that agreement annually for the last 10 years at $100,000 per year.
During the council’s deliberation, the attorney said she could find nothing in the record to indicate that densities were site specific as opposed to the total units for the site. Even at 93 units per acre, the total units overall were 46 less than permitted. Because of the valid development agreement, the applicants believe that the council had no choice but to approve the project and said they were prepared litigate to protect that right.
The staff report included the resolution to deny the project noted that litigation was possible and there was no guarantee that the city would prevail. The denial resolution cites density, scale and massing as reasons for the council to reject the project. It argues that the stage one approval allowed 64 units per acre—later reduced to 52—thus the 93 units is too dense. And, finally, there are not vested development rights for this stage 2 project.
Proponents argue that 100 units of density already was transferred between sites so it’s the total units that is the controlling rule.
UDR has enlisted former Dublin Mayor Guy Houston to help them get the project approved. The Dublin Chamber of Commerce has written a letter asking the council to reconsider, while Innovation Tri-Valley has taken a similar position. The developer would like to avoid the time and cost of litigation and believes the council’s hands were tied by the development agreement.
For council members, it was another refrain of the same story—development agreements cover much of the land in East Dublin if proposals conform to the zoning. Those were put in place years ago as developers sought certainty for long-term projects.
There’s also the public concern about the pace of development and the overcrowded schools on the eastside. Dublin, like San Ramon, has attracted many more families than were anticipated during the General Plan process. Couple that with the terrible decision not to build a high school on the eastside and you’ve got unhappy people.
Dublin, generally, has moved in a consistent direction with just a couple of organized objections by resident over many years. It makes for an interesting campaign time this fall.