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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.
“The court finds that the rezoning was improper without first a (general plan) amendment to change the agricultural land use designation,” Judge Steven K. Austin wrote in his court order, siding with the environmental advocacy group who sued the town over its endorsement of the 69-house SummerHill Homes project proposed for the Magee Ranch property.
“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 … (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.
Wow, this is impressive! I covered this story for years and honestly didn’t expect Summerhill Opposition to get this far, especially after delays with the SOS Danville petition.
However, I’m curious what the County would consider adequately addressing potential impacts – planners did seem to take a lot into consideration, mitigating where possible in a pretty crummy situation.
EXCELLENT question Jessica…I’m wondering too. The county has far more influence than people realize when it comes to development.
Everyone,
As you read the comments from the town staff, I would expect nothing less than the continuation of their delusional logic on this matter. For years they had been told by hundred of citizens this project was violating their own General Plan and the required voter approval under Measure S. Now, after spending significant Danville tax payer money to defend their ill guided and incorrect leadership arrogance, it has taken a judge point out they were not right all along. Hopefully they will now understand, but quotes in the article seem to indicate they still believe know better. I cannot wait to hear from all current Town Council members’ as to their individual responses to wasteful tax payer spending and their plans for the future of this reckless abuse of power. Particularly Storer and Stepper!
Excellent news. Even though the judge accepted the environmental impact report, that was based on the homes being built on 38 acres. If the developer tries to built the homes on all ~400 acres, this would require a different EIR. It is unlikely that Danville, county and state agencies would allow the homes to be built on steep slopes and in areas with protected species. The development would also cost substantially more due to the extra infrastructure required over the full ~400 acres. The area should remain agricultural.
Hey Hey!
It’s an election year for some of the Town Council.
This is a perfect example of not everything being a done deal, such as @msbunny has stated in reference to the cemetery on Camino Tassajara…
However, the fact that the EIR was basically found valid, except for bicycle safety, is a pretty significant win for the developers. So between property development desires, the Town of Danville that wants to see this happen, the opportunity for appeal and SOS hoping to stop the development entirely, it will be interesting to see how this goes forward. The town likely wants to avoid a Measure S vote at all costs, since I would surmise they loathe that voter backed measure, as evidenced by what appears to be their seeking to undermine Measure S via ongoing “sneaking-it-by-asleep-at-the-wheel-resident” precedents.
It was kind of strange when the Town Council approved this development, that they gave the developer more than they asked for by including the houses over by McCauley Road. The developer had removed those.
“We would respectfully disagree with the (judge’s) interpretation,” Danville City Attorney Rob Ewing said Wednesday. Interesting. It begs the question of what the Town of Danville does agree with re Measure S. Perhaps a way to get Danville on the hook for following Measure S is to force them to identify all properties they feel are subject to Measure S. From the sounds of it, Danville does not believe properties are subject to Measure S, except perhaps for those not under its sphere of influence, namely mainly EBRPD and State Park lands.
So I believe that even under agricultural zoning, Magee has the rights to build under a density of 1 house per 5 acres. Is it out of the question to negotiate the compromise that was accepted? In the scheme of things, with the EIR mostly accepted, the development as proposed is a pretty good one in that it restricts development to less than 90% of the existing parcel and provides open space.
Be careful what you ask for might be in order
The judge has made the right decision. And next time any of the Danville council members are up for election, I will be voting for anyone else after the way this was handled.
Regardless of the reason the judge selected, the real issue with building homes on this site is that Diablo Road (between Blackhawk and Hidden Valley) cannot handle anymore vehicle traffic. At peak times and school times, it is at or past capacity. Any approval for homes needs to require the developer to widen Diablo Road to two lanes each way, not come up with a list of “mitigations” which do nothing (like giving out a bus pass or building a bike path partways down the road.
In my estimation, this is far from over…
@KM, Your real reasons are the real reasons that EIRs get done. While you don’t like sitting in traffic at commute times, engineers still have roadway optimization techniques to improve on existing traffic flows. So while your particular reasons were voiced, the developers and town did try to improve the traffic flow through the area. The judge basically approved their efforts in this regard. So moving forward, I am not sure how much traction the traffic argument is going to get. I share your frustration having waited countless times in traffic at that intersection.
The judge basically laid out to the city and developer what they need to do to get this passed. And it would appear it had nothing to do with not having properly addressed the publics concerns (ie yours and my sentiments) as expressed in the development, EIR and public review processes.
So if the goal of SOS-Danville is to stop this development, then they need to strategize on using the court system to prevent development of this property. It appears that as currently zoned, that 1 house per 5 acres could be built. Here is the relevant text in the article:
“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.”
I will make the statement, and you could go to any fine geotechnical engineering firm such as San Ramon headquartered ENGEO, that using current technology, both on the design and build side, that every square-inch of that property can be successfully and safely built on, no matter how steep you think it is.
I highly suspect Danville will go back to the courts, not to challenge Measure S, but to defend the right of towns and property owners to develop their lands under “existing” zoning regulations. This is a statewide issue, every town and property owner is affected if the statewide laws wrt zoning and building can’t be used as a guide.
So Danville goes to court and says we are not challenging Measure S, we are defending the right to use existing zoning laws, with decades of case law to support it, as the basis for property development.
Here is the other strategy by the developer. If they in fact are legally allowed to develop their property at 1 house per 5-acres, then the fall back is to submit this proposal and do another EIR. The judge basically approved most of the EIR that they would have to do over again. Sure there are some changes, but they can get that figured out with all of the paid for talent and connections they have.
So then SOS-Danville is back to square one. Do you want the entire property covered with low density but more housing with view shed degraded or do you want the proposal that they have in place now?
In the scheme of things, it is relatively easy to get stuff through the first stage of the courts, but as a case goes up the chain, experience and knowledge tend to rule, so for SOS-Danville to bank on winning in appeal is a risky strategy to pin stopping the development on.
If the goal is to not have the land ever built on, then it might be a good idea to start shopping around a price to buy it out from Magee. Danville, Diablo and Blackhawk are supposed to be wealthy communities, plus other agencies might be able to contribute such as EBRPD, State Parks, Save Mount Diablo plus many others… and don’t forget the county and the town of Danville!
KM irony doesn’t escape me here…Wasn’t it Danville that just allowed KB homes the subdivision off San Ramon Valley Blvd? We’re already seeing traffic impacts there. Further, if Faria is developed “as is” can you even remotely imagine the traffic on that blvd. between San Ramon and Danville??? (shuddering to think) Traffic is not enough, I assure you, to sway either Danville or San Ramon’s “powers that be” (nor the county) Just install another signal is their answer, no kidding. Quality of overall LIFE in BOTH Danville and San Ramon has/is being diminished by these pretty much last developments. It’s pitiful.
Judge Austin did NOT rule that the EIR was “correct” in its assessment regarding environmental impacts.
He merely said that the subject of impacts was primarily a “battle of experts”— those paid for by the developer and those paid for by the residents of the Danville area. Legally speaking, the Town Council can chose whose experts to believe— and they uniformly chose the developers’ experts to believe. Big surprise! Developers (the Town Council members) favoring developers!
In the case of the bike safety issue, the Town chose to do absolutely NO analysis of bike safety– no counts of bicyclists on an average week, no examination of the dangers of the road, no discussion about the greater dangers posed by adding 1000+ more car trips per day on the road (the developers’ expert’s number about the car trips). So the judge said that CEQA requires at least SOME analysis and the Town Council has to go back and provide some before it can certify the EIR.
Believe it or not, the Town Council argued that impacts on bicyclists are not “environmental impacts”! Nice to know the Council members don’t give a care about the tens of thousands of cyclists that travel dangerous Diablo Road every year on their way to and from Mt. Diablo. The Town agreed that pedestrians and people in cars deserve a look-see on the safety issue, but once those people get on a bike they are irrelevant! What hogwash!
The people in the Diablo Road corridor know what this project will mean environmentally. Why else on earth would they give up 4 years of effort and an incredible amount of hard-earned money to fight this long?! The voters of Danville will understand this and vote down this environmentally appalling project! WHY DO YOU THINK THE TOWN COUNCIL, THE DEVELOPER, AND THE LAND INVESTORS ARE SO SCARED TO PUT THE PROJECT TO A PUBLIC VOTE? BECAUSE IT IS APPALLING, JUST LIKE THE ELWORTHY WEST KB HOMES “GULAG” MESS THAT WE ALL DESPISE! THE TOWN COUNCIL STOLE OUR VOTE ON THAT,TOO!
And by the way, the only “alternate” to this appalling project is NOT 5-acre ranchettes all over the property. It would not be in the developers’ or land investors’ interests to do that! More propaganda from Danville. Don’t believe it for a minute! Look at the Tassajara Valley—has every parcel then been subdivided into the minimum 5-acre per unit zoning? Of course not!
It’s interesting to go back and review the “Voter Information Pamphlets” from previous elections and see the overuse of “avoid overbuilding and endless sprawls,” “green initiatives,” “protecting open space” and other environment rhetoric. Might be time to elect a Town Council member that actually walks the talk…
Will the voters in Danville ever wake up and smell the ….developers in deciding who to vote for in the Town Council elections??? Storer and Stepper are betting that they won’t!
The important question to ask is what other liberties have been taken regarding development? If they’ll do it once, then they probably have done it before.
Yes, I agree, Rick. The Gulag Elworthy and SummerHill were illegally approved. There are undoubtedly are others. Actually, the 22-home Matadera subdivision near Green Valley School was also illegally approved without an EIR. A grassroots group sued the Town and the court required them to do an EIR.
The Town Council basically does whatever they think they can get away with, which is a lot. The 2010 General Plan as published by the Town isn’t even what was adopted by Council back in 1999.
@Calabrigo: Answer these questions: Why did you and the Danville Town Council try to steal the public’s vote on SummerHill’s project? Why did you and the Town Council steal it on the Gulag Elworthy project?
Answer: because you will do anything—even break the law— to help special interests. And stop trying to softpedal the thefts by claiming that these projects were fabulous. They are anything but fabulous—just the opposite— but their merits is NOT the question!
Will someone please run against Storer & Stepper???? They will have our vote!!
The weasels on the Town Council keep getting reelected/recycled due to inertia on the part of the electorate. I’m with Danville Voter. Put up a trained monkey and I’ll vote for it over the current crop of kleptocratic clowns.
I haven’t had time to troll the Danville-SR “paper” for a while, but boy is it nice to come on here and see our local pol’s get put in their place.
Now, can we get a ruling to tear down Elworthy? All in favor say “Aye Derek!”
Last year it was disheartening to watch the town spend nearly $1M of taxpayer dollars to pay an outside consultant to take a ‘urban template’ of a general plan and try to pass it past the citizens of Danville. In the end, the document was cut to shreds and it began to look like something that represented Danville — EXCEPT the Measure S language. They seemed convinced what they were doing was legal and seemed to ignore the outcries from the citizens. Now time passes and the town and its citizens have spent more money on legal fees only to learn the town HAD overstepped. The town wasted large sums of tax payer dollars on the general plan and now is spending more trying to defend it. It is a WASTE of tax payer dollars and peoples time. What is REALLY ironic is that the town council WROTE Measure S — they put it on the ballot. Did they ‘forget’ what it was intended to do or were they focused on the builder revenue to the town? I think the later and instead they have been SPENDING money, not taking it in and that is deplorable!
Now they are spending time thinking about how to restrict us from using plastic bags. Yet another issue that may end up costing the town in court fees. What a waste of time and $!!!!
Let’s see. The Town Council encouraged Danville voters to vote for Measure S instead of Measure R. We have had Measure S for 14 years. There has never been a Measure S vote. Now our Town Council insists that Measure S does not apply to Summerhill. Measure S did not apply to Elworthy West. Measure S does not apply to Elworthy East. Pray tell, what agricultural property is left that could possibly require a Measure S vote? Stinks to high heaven! Vote for anyone but incumbants.
There should be a consequence for the “beautiful” KB project that has ruined the view of the hills. It should come at the ballot box.
I see that the Town will decide on Tuesday whether to appeal the SOS-Danville lawsuit. Of course, the discussion will be closed to the public so the Council can continue disparaging the public and the whistleblowers that dared to challenge their illegal activity.
Also, Town “Manager” Calabrigo’s performance will be up for review (believe it or not, he makes over $300,000 for “managing” a bedroom suburb of 40,000). Let’s vote on it—-fire Calabrigo! Oh, I forgot, the people don’t get to vote on anything in this town, not even the projects that fall under Measure S.
The reasons the session is closed is because the communications between the council and its attorney are privileged – there are limited circumstances in which such meetings can remain be closed (which are determined by the State).
But let’s keep making uninformed, baseless, speculative statements regarding corruption, etc., since it seems to really add substance to the conversation.
So any word if the incumbents will run unopposed? Until there are at least two dissenting votes on the Town Council there is nothing to stop their disregard for public opinion.
It feels like they are implementing the following exception on the rulings that essentially makes the Measures and their support of the measures a joke. They knew the exception was in the Measures and likely laughed at all of us.
“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.”
I would respect the council more if they came clean and just disclosed their intent. We are sworn to protect the interest of developers or anyone who can outbid the citizens of Danville. We hold this honor above all honors and against all owners of honor, whether they honor the owners or not.
Vote for me so I can squander your money and line my pockets.
I take issue with Mayor Storer’s statement that “he will continue to protect our ridge lines and hillsides”. What a joke!
That was not in evidence when the Planning Commission and Town Council approved of a mansion to be built on
top of a hill at the intersection of McCauley and Diablo Rd.
I attended the Planning Commission meeting regarding this project and questioned whether this met the guidelines for building on ridge lines but was rebuffed by the Commission.
It was clear to me that this was a “done deal” between the owner and the city.