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Danville adds to SummerHill Homes suit appeal

Council votes to challenge judge's ruling that town failed to adequately address project's bike safety impacts

The Danville Town Council has decided to appeal a second component of a recent court ruling against the town in a lawsuit over a new residential development approved in 2013 for the northeast side of town.

In a 4-0 vote Tuesday, council members opted to challenge a county judge's finding that the town failed to adequately address bicycle safety impacts of the 69-home project proposed by developer SummerHill Homes for the Magee Ranch property at the corner of Diablo and McCauley roads.

The council's decision was announced following closed-session deliberations Tuesday morning, almost a month after council members approved an appeal for a different aspect of the unfavorable ruling. Councilman Newell Arnerich was absent from Tuesday's meeting.

Danville Mayor Robert Storer said late Tuesday that town officials believe they properly addressed concerns about bike-safety impacts associated with the housing project.

"As a primary mitigation measure, the developer will incorporate the trail parallel to Diablo Road from about Green Valley/McCauley Road to Jullian (the project's entrance). We are also looking at ways and options to cross the road to get to Mt. Diablo," the mayor wrote in an email.

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Contra Costa County Superior Court Judge Steven K. Austin, in his final ruling filed July 28, disagreed with the town's bicycle-safety analysis.

"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."

Attorney Stuart Flashman -- who represents environmental advocacy group SOS-Danville, the plaintiffs in the lawsuit -- did not immediately return a request for comment Wednesday.

Flashman said in mid-August that his clients were debating whether to file a counter-appeal of Austin's decision, which was a mixed ruling for each side.

The judge ruled in favor of SOS-Danville when he found the council improperly rezoned agricultural land at the project site without first seeking a general plan amendment to change the agricultural land-use designation.

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Town officials argue the council's July 2013 project approval was in line with Danville General Plan policies for the Magee Ranch property. Council members voted unanimously on Aug. 12 to appeal Austin's ruling on the rezone.

Austin did side with the town in July when he denied SOS-Danville's claims that town officials 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.

The town expects to file its appeal, encompassing both issues, with the state's Court of Appeal for the First Appellate District in the next week or so, City Attorney Rob Ewing said Tuesday.

Jeremy Walsh
 
Jeremy Walsh, a Benicia native and American University alum, joined Embarcadero Media in November 2013. After serving as associate editor for the Pleasanton Weekly and DanvilleSanRamon.com, he was promoted to editor of the East Bay Division in February 2017. Read more >>

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Danville adds to SummerHill Homes suit appeal

Council votes to challenge judge's ruling that town failed to adequately address project's bike safety impacts

by /

Uploaded: Wed, Sep 10, 2014, 1:50 pm

The Danville Town Council has decided to appeal a second component of a recent court ruling against the town in a lawsuit over a new residential development approved in 2013 for the northeast side of town.

In a 4-0 vote Tuesday, council members opted to challenge a county judge's finding that the town failed to adequately address bicycle safety impacts of the 69-home project proposed by developer SummerHill Homes for the Magee Ranch property at the corner of Diablo and McCauley roads.

The council's decision was announced following closed-session deliberations Tuesday morning, almost a month after council members approved an appeal for a different aspect of the unfavorable ruling. Councilman Newell Arnerich was absent from Tuesday's meeting.

Danville Mayor Robert Storer said late Tuesday that town officials believe they properly addressed concerns about bike-safety impacts associated with the housing project.

"As a primary mitigation measure, the developer will incorporate the trail parallel to Diablo Road from about Green Valley/McCauley Road to Jullian (the project's entrance). We are also looking at ways and options to cross the road to get to Mt. Diablo," the mayor wrote in an email.

Contra Costa County Superior Court Judge Steven K. Austin, in his final ruling filed July 28, disagreed with the town's bicycle-safety analysis.

"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."

Attorney Stuart Flashman -- who represents environmental advocacy group SOS-Danville, the plaintiffs in the lawsuit -- did not immediately return a request for comment Wednesday.

Flashman said in mid-August that his clients were debating whether to file a counter-appeal of Austin's decision, which was a mixed ruling for each side.

The judge ruled in favor of SOS-Danville when he found the council improperly rezoned agricultural land at the project site without first seeking a general plan amendment to change the agricultural land-use designation.

Town officials argue the council's July 2013 project approval was in line with Danville General Plan policies for the Magee Ranch property. Council members voted unanimously on Aug. 12 to appeal Austin's ruling on the rezone.

Austin did side with the town in July when he denied SOS-Danville's claims that town officials 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.

The town expects to file its appeal, encompassing both issues, with the state's Court of Appeal for the First Appellate District in the next week or so, City Attorney Rob Ewing said Tuesday.

Comments

Dave
Diablo
on Sep 11, 2014 at 7:21 am
Dave, Diablo
on Sep 11, 2014 at 7:21 am

So, to summarize...

The Danville Town Council illegally ignored it's obligation to follow a law that they asked us to approve. In doing so they get challenged by their own citizens and ignore them. The citizens sue and win...costing the town lots of money better spent on other things in the first place.

And, now, continuing to clearly ignore the law they asked for (true, not the incumbent council members but their predecessors) they are going to spend a lot more money to appeal the court's decision which was to affirm the clear intent of the law which anybody who takes the time to read - and doesn't have an agenda - understands.

To the voters of Danville- Even if you're ambivalent on the topic of the Summerhill project, are you going to remain asleep to your town council's behavior in ignoring the law (when will they choose to ignore a law in a matter that affects YOU?) and spending your tax money in such an inappropriate way...all to emasculate a law (either de jure or de facto) so they can develop when/where THEY want (not you) and be financially supported by developers? If you don't think that they are, look at their recent campaign finance filings...it is there in black and white - or should I say dollars and cents?!?

Just imagine how much better Danville would be if you had a honest town council who followed the law and spent your money on projects that matter to you!


Dave
Diablo
on Sep 11, 2014 at 7:27 am
Dave, Diablo
on Sep 11, 2014 at 7:27 am

BTW, if you don't think the town council has spent a lot of your money, ask them to disclose how much they've spent defending the developers' interests in the Summerhill matter. You will be shocked and appalled...and if not, more's the pity.

Based on their behavior in this matter, the town council should be replaced via the electoral process - either normally or by recall.


Clare
Danville
on Sep 11, 2014 at 7:33 am
Clare, Danville
on Sep 11, 2014 at 7:33 am

With the increase in traffic impacting El Cerro Blvd, they also need to determine a way to SAFLEY cross El Cerro Blvd with at least some cross walks.


John
Danville
on Sep 11, 2014 at 7:53 am
John, Danville
on Sep 11, 2014 at 7:53 am

After flagrantly and egregiously violating the law, the Town Council weasels are stealing our tax dollars to further their crimes. Vote these kleptocrats out of office!


JT
Danville
on Sep 11, 2014 at 8:50 am
JT, Danville
on Sep 11, 2014 at 8:50 am

@Dave, if you have any of the information that you allude to, could you post it or link us to it please. They are very useful questions. I hope SOS Danville posts this kind of information on their sites.


Julia
Alamo
on Sep 11, 2014 at 9:14 am
Julia, Alamo
on Sep 11, 2014 at 9:14 am

hey you people in Danville...you all make me laugh. Most of you are very naive are just don't give a darn. Most of you are getting what you deserve.

You all knew they had no ethics before you put them into office...but you still did it...talk about brain dead. Well you know who you are...you made your bed now sleep it.

I WILL MAKE A PREDICTION....COME NOVEMBER YOU NAIVE DANVILLE FOLKS WILL VOTE THE RASCALS INTO OFFICE ON ELECTION DAY AND CRY THE NEXT DAY..AS I SAID, YOU DANVILLE FOLKS MAKE ME LAUGH.

Thanks for listening, Julia Pardini from safe and sane Alamo.


Peter
Danville
on Sep 11, 2014 at 9:20 am
Peter, Danville
on Sep 11, 2014 at 9:20 am

Essentially what the Danville Town Council is doing is spending taxpayer funds to enrich a developer whose development will result in negative impacts on the city of Danville and its residents. The only winners here are the developer and council members who receive campaign contributions from developers.

I call on the city council to drop all appeals now!


Chuck Schaeffer
San Ramon Valley High School
on Sep 11, 2014 at 9:37 am
Chuck Schaeffer , San Ramon Valley High School
on Sep 11, 2014 at 9:37 am

Glad to see the Danville City Council standing up to the selfish "not in my backyard" crowd. This SOS group is nothing more than a group of neighbors who want to keep other people out of Danville so they can have their views unfettered. They have no respect for the property rights of others to bring other people to Danville


susan
Danville
on Sep 11, 2014 at 9:48 am
susan, Danville
on Sep 11, 2014 at 9:48 am

@Chuck Schaeffer: Next the time Town Council violates Danville and state law, it might be in your neighborhood, Chuck. Apparently, you think anyone that wants to build anything can not be constrained by the law. Hmmm, I think I will build an addition to your neighbor's house that is 45 feet tall and extends into your property. I will rent the addition to create housing for more people. Then I bet you will think it a good idea to challenge the illegal activity.


Resident
Danville
on Sep 11, 2014 at 10:43 am
Resident, Danville
on Sep 11, 2014 at 10:43 am

Hey folks. Being only in the area for 3 years now, and living out in unincorporated Danville, I'll give you an outsiders opinion. I spend a lot of time downtown and all over Danville/San Ramon. The only time I hear about this issue, is here on this website. I think that if this is such a huge issue, I'd think there should be more discussion and visibility other than here. There is way too much yapping on these message boards...i'm not sure it is very effective.

I have mixed feelings on the matter at hand. I think that property owners, developers, and builders have the right to pursue opportunities within the reach of the law. Whether or not the Town violated the law with zoning/general plan matters...well, i'm not a lawyer so I won't guess. Having worked for a town health/building department before, there are ways to pick through codes and regulations to make it work for you...on both sides of every arguement. This is fact otherwise there would be no arguements. Blame the writers/drafters of these laws and the vagueries left in the language.

The whole bicycle safety matter on Diablo Rd is a joke. I am an avid cycler myself...but would never consider riding on that street. Not only does it put the cyclists in danger, but the cars on the road too. Blind turns, high speeds (yes cyclers exceed the speed limits!!). You cannot argue otherwise. The road was not created for biking (nor were roads climbing Mt Diablo...ever drive up and on way down at just over speed limit and have a bicyclist swear at you for not going fast enough and to slow their 50 mph descent speed? :) ). If you are concerned about bike safety, the only solution is to widen and install bike lane...period. Using bicycle safety on that road as an arguement against Summerhill is lame. Having fewer cars on that road does not make it any safer for cyclists...its already way too dangerous.

I wish people would be honest and just say "not in my back yard"...i'd have more respect for you.


HUH?
Danville
on Sep 11, 2014 at 11:17 am
HUH?, Danville
on Sep 11, 2014 at 11:17 am

@Resident: SO if something is dangerous, it is okay for a developer to make it more dangerous? What kind of an argument is that? So if a stream is polluted, it is okay for a polluter to make it more polluted? Guess you don't care about your environment. Glad you are not a judge.


SOS-Danville
Danville
on Sep 11, 2014 at 11:37 am
SOS-Danville, Danville
on Sep 11, 2014 at 11:37 am

Danville Mayor Robert Storer and the Town Council continue their defiance regarding the issue of bicyclists’ safety in the Diablo Road corridor.

Despite the pleas of bicycle organizations representing thousands of cyclists, many individual cyclists, and hundreds of Diablo Road corridor residents, the Town Council’s Environmental Impact Report for the SummerHill project failed to examine existing bicycle safety dangers on Diablo Road and the negative impact of adding 1000 more car trips per day to that road. Contrary to the Mayor’s claims, there was no “mitigation” offered by SummerHill Homes or the Town Council to enhance bicycle safety on the dangerous stretch of Diablo Road between Mt. Diablo Scenic and Alameda Diablo.

Some speculative discussions by Town Staff at hearings (the discussions were not even included in the EIR) about an undesigned, unfunded off-road multi-use trail to be constructed uphill from Diablo Road some time in the future are not mitigation for anything.

Shamefully, the Council argued to Judge Austin that bicyclist safety dangers created by the SummerHill project’s increased traffic were not even “environmental impacts”! Thankfully, Judge Austin rejected the Council’s ridiculous assertions, and SOS-Danville is confident that the CA Court of Appeal will uphold Judge Austin's decision.


Julie K.
Registered user
Danville
on Sep 11, 2014 at 1:10 pm
Julie K., Danville
Registered user
on Sep 11, 2014 at 1:10 pm

@Resident - This is not a case of "not in my backyard". I'm not part of SOS, but I understand and respect what they are doing. There's nothing wrong with the houses. Danville and San Ramon just keep adding more and more houses that use Diablo Road to get to the freeway, and it can't handle any more. Neither the road or the Creek were designed for the use they are getting. I'm glad someone is finally saying enough is enough.

Diablo is overrun with bicyclists. And the kids that live near Summerhill already have to leave for school a half an hour earlier than kids that live just a couple miles down the road. They carpool, they take buses (that were added just a few years ago to alleviate traffic), but none of it is enough if they keep adding more houses and more cars and more bicycles, and don't add anywhere to put them. SOS is just trying to get them to think about what they are doing and how out of control it has gotten. Not such a crazy request.

And yes, bicycle paths have everything to do with it, because if there was a safe way to bike, a lot of those kids would get out of their cars stuck in traffic and bike to school or to their friends house and there would be less cars on the road.


Danville
Danville
on Sep 11, 2014 at 1:28 pm
Danville, Danville
on Sep 11, 2014 at 1:28 pm

@ Chuck Schaeffer: "Property rights" are defined by law. We all know this. You cannot do anything you want with "your" property to the danger of others, or to the impairment of others' property rights. It is a balance. And the property rights we have are defined (in part) in the Town General Plan and zoning laws. After extensive briefing and argument by multiple expensive high-quality law firms and lawyers representing the Town and the developer, the Court ruled that the Town and Developer violated those laws. So, Chuck, whose property rights are being disrespected here, and by whom?


Emily
Danville
on Sep 11, 2014 at 1:44 pm
Emily, Danville
on Sep 11, 2014 at 1:44 pm

One vote for Tony. No votes for the people who won't listen to anyone but developers.


NIMBY hah!
Blackhawk
on Sep 11, 2014 at 1:53 pm
NIMBY hah!, Blackhawk
on Sep 11, 2014 at 1:53 pm

The "not in my backyard" (NIMBY) attack is such a joke! We all know it is a dirty little rhetorical trick used by those who can't stand any rational or reasonable governmental regulation at all -- the anti-government crowd, who want freedom to do anything anywhere anytime regardless of how it hurts others. That is, until someone impairs THEIR rights ("backyard"), after which the howls of protest and lawsuits fly thick as developer campaign contributions... Kudos to the SOS folks for enforcing the law and holding the Town accountable to it - for ALL of us!


Old Timer
Alamo
on Sep 11, 2014 at 2:34 pm
Old Timer, Alamo
on Sep 11, 2014 at 2:34 pm

If the SOS Danville folks and any area concerned citizens really want to attract media attention and rally against this second appeal-slap-in-the-face they should stage some type of protest. On wed, Sept 17, there is a mayor conference at the Blackhawk car museum. I suggested something similar to be staged outside a Town Council meeting and my idea was quickly dismissed. But this big deal event (especially if the media gets a heads-up) will attract the attention to make a difference. SOS Danville it's up to you to lead this effort...sure hope this time you're listening


FanDanville
Danville
on Sep 11, 2014 at 3:02 pm
FanDanville, Danville
on Sep 11, 2014 at 3:02 pm

Dave,
I've asked here before--how much money is the Town Council spending on this issue. DE doesn't report that. If you know, tell us. I bet it is a lot!

Dave,
What can we do about this Town Council? They are impervious to us. There is only ONE new person, Tony, to vote for. The incumbents will be back in--it's a done deal.
And even Tony seems enamored with the shifty ideas of "open space" and "clustered housing".

This land should only be built out as ONE HOUSE PER 5 ACRES. That density won't actually be possible (for various reasons), so it would end up being more like ONE HOUSE PER 20-40 ACRES, if at all.
That low density--with small ranches, farms, and vineyards....or large estate houses on rolling hills--would create less problems and a nicer environment for the rest of us.

WE WANT OUR VOTE ON THE LAND USE OF THESE OUT-LYING AREAS because of there impact on our existing infrastructures! GIVE US OUR VOTE! Then Chuck Schaeffer can get his vote along with everyone else......and the citizens will have to live with their choices.

Citizens are too busy to go the town meetings, but not too busy to vote their opinion.


Disgusted
Danville
on Sep 11, 2014 at 8:41 pm
Disgusted, Danville
on Sep 11, 2014 at 8:41 pm

Robert Storer, Karen Stepper and those other Council members are outrageous. Vote for the new guy, Tony Adamich for Council. What ever happened to Bob Nealis, who ran last time? WHy isn't he running again?


resident
Charlotte Wood Middle School
on Sep 12, 2014 at 9:12 am
resident, Charlotte Wood Middle School
on Sep 12, 2014 at 9:12 am

When it comes to helping developers like SummerHill Homes, Robert Storer (a developer of high-density homes himself, including one in Danville), and Karen Stepper just can't do enough to help them. Lawsuit by the public? No problem. We will just use public money to defend it.

When the public asks for something, such as safe roads? Oh, there is never money for that.... Vote the developers out of Danville Council!


Tony Adamich
Danville
on Sep 15, 2014 at 7:41 am
Tony Adamich, Danville
on Sep 15, 2014 at 7:41 am

As I met with Danville residents this weekend at the Farmers Market I'm sure it was noted that I do my best to avoid legal jargon and being caught-up in the never ending debate regarding the 2010 General Plan, 2030 General Plan and Measure S. However, the notion of the Town Council appealing Judge Austin's ruling reflected both their arrogance and self centered attitude to protect their credibility. The "right" thing to do was admit their decision was incorrect and take the issue to a public vote.

Additionally, their recent appeal regarding bike safety is absurd. I challenge the Town Council to merely take a drive on Diablo Road from Green Valley to Jullian. It's already too dangerous. Adding one car is one too many.

I'm actually embarrassed to sound like a politician, but the casting of only one vote, for me, is a symbolic mandate that all Summerhill appeals must be dropped. Now, will be the only opportunity before 2016 to directly impact the members of the Town Council. Change one Town Council member and you change the entire dynamic of a Town Council.


Supporter
Danville
on Sep 15, 2014 at 1:14 pm
Supporter, Danville
on Sep 15, 2014 at 1:14 pm

I love this community and I'm proud of the way our Town Council protects open space and fights hard for great developments for our community.


Cyclist2
Danville
on Sep 16, 2014 at 9:32 am
Cyclist2, Danville
on Sep 16, 2014 at 9:32 am

I will vote for Tony and if it's legal I will also write his name in and vote for him twice.


Informed
Danville
on Sep 19, 2014 at 8:56 am
Informed, Danville
on Sep 19, 2014 at 8:56 am

@Supporter: Guess you have been living under a rock. On the recent large developments approved by the Danville Town Council---Elworthy West (KB Homes' "Quail Ridge" for 100 units, Podva Road for 20 or so, SummerHill for 70+-units) there has not been one square inch of land designated for General Open Space created or approved. The Council is not protecting Open Space, "supporter", it is allowing development on it. Don't you know that the Mayor Robert Storer builds high-density housing in Danville? He is Danville's fox guarding the chicken coop.


In-the-know
Alamo
on Sep 19, 2014 at 4:18 pm
In-the-know, Alamo
on Sep 19, 2014 at 4:18 pm

If one really wants to knock Robert Storer off of his self-proclaimed high pedestal please spread the word that he has endorsed his mayor-buddy Tim Sbranti for the Assembly. Maybe Robert is trying to set the stage for a future Assembly run like his other buddy that is endorsing Sbranti, Newell Arnerich. Whoops, Newell was a loser too.
MEDIA...please pick this up!


Flabbergasted
Danville
on Sep 19, 2014 at 4:38 pm
Flabbergasted, Danville
on Sep 19, 2014 at 4:38 pm

Here's the latest from Guv MOonbeAM ,and the dem legislature. Henceforth, in the EIR for new developments, only the likely vehicle miles to be travelled by the new residents will be considered in order to determine if there will be a significant traffic impact. It won't matter if existing residents near the development won't be able to get out of their own streets, or to the local schools or even to 680 because of the increased traffic. The only thing that will matter is whether there will be lots of new residents commuting long distances to get to work. What the heck????


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