Appellate court: Danville did not violate planning law in SummerHill Homes approval

Justices do uphold lower court decision that town failed to address bike-safety impacts of project

The First District Court of Appeal has ruled Danville officials did not violate state planning law when approving the SummerHill Homes development at Magee Ranch in 2013, reversing a county judge's earlier finding that the town's approval of the 69-home project was inconsistent with its general plan.

"Because the (state's) Planning and Zoning Law does not require the Project to be in precise conformity with the General Plan, and since the Town's actions are reviewed under the deferential abuse of discretion standard, we find the trial court's decision was in error," wrote Associate Justice Sandra Lynn Margulies, author of the unanimous opinion released Friday.

"The Town's reading of its own General Plan is entitled to a 'strong presumption of regularity,' and will only be set aside upon a showing of abuse of discretion ... We will not disturb the Town's interpretation, so long as it is reasonable, even if plaintiff's interpretation is more reasonable," Margulies added during the 22-page opinion.

The appellate court's ruling wasn't a full endorsement of Danville's approval process, as the three justices did affirm the county court's determination that the town violated state environmental law by failing to determine whether the proposed development had significant impacts on bicycle safety.

Friday's decision left both sides -- Danville town officials and the environmental advocacy group that sued them -- claiming victories Monday morning.

"I don't view it as a 'mixed ruling,'" Danville Town Manager Joe Calabrigo said in an email. "The ruling favors the Town and supports case law that states that interpreting and applying the General Plan is 'in the province of the local governing body,' provided that it is not unreasonable."

Maryann Cella, a representative of plaintiff Save Open Space-Danville (SOS-Danville), said, "The Court's clear message is that governmental decision-makers such as the Danville Town Council members and developers such as SummerHill Homes cannot claim that bicyclist safety is not an environmental impact."

"Bicyclist safety is, instead, a significant factor that must be considered before approving new developments," she added in a written statement.

SOS-Danville originally filed suit in 2013 over the Town Council's approval of the proposed residential development at the southeast corner of Diablo and McCauley roads. The project has remained in limbo amid the ongoing litigation.

The two sides argued the civil case before Contra Costa County Superior Court Judge Steven K. Austin, who ultimately agreed with SOS-Danville on the general plan argument but threw out all of the group's environmental arguments, except for bicycle safety, in his July 2014 ruling.

Austin determined the town acted improperly when it rezoned agricultural Magee Ranch land to planned unit development (P-1) without first seeking a general plan amendment to change the agricultural land-use designation. The general plan does not specifically identify P-1 as an acceptable zoning option on agriculturally designated lands.

The town argued the rezone and approved development -- with single-family homes clustered on approximately 38 acres and designating 372 acres as open space -- was in line with general plan policies for the Magee Ranch property, which was labeled as a "special concern area" in the plan.

The Town Council decided to appeal Austin's ruling on the general plan argument in August 2014, and then opted to fight the bicycle-safety component on appeal a month later.

The appeal provided vindication for the town on the general plan argument, which both sides cited as the central issue of the case coming out of the county court's decision last summer.

"The appellate court ruling that was handed down on Friday indicates that the Town correctly interpreted and applied the General Plan and did not violate Measure S, properly applied P-1 zoning (and) properly determined the allowable density allowed on the property," Calabrigo said.

Added Danville city attorney Rob Ewing, "While one result of the ruling is that the Town will need to amplify the conclusion that the 69 units proposed by SummerHill will not have a significant impact on bike safety on Diablo Road, the key result is that the project conforms to the General Plan and zoning for the property."

In the unanimous opinion, Margulies said that not specifically listing P-1 as a consistent zoning district was "problematic" for the town, but its interpretation of the general plan to allow the rezone was not unreasonable.

"As we must review the Town's decisions for an abuse of discretion ... we need only determine whether a reasonable person could agree with the Town's proposed construction. Here, we cannot say that the Town's interpretation of the General Plan is unreasonable," according to the court's opinion.

The justices noted the SummerHill Homes project "effectuates many of the policies described in the General Plan's discussion of the Magee Ranch special concern area," citing examples such as retaining scenic character of the property, conserving open space, and clustering homes on flat and unobtrusive portions of the site.

SOS-Danville representatives lambasted the justices' assertions on the town's rezoning process, which Cella contended "circumvented the voters and their right under Measure S."

A ballot measure passed in 2000, Measure S requires voter approval for developments aiming to change land-use designations of agricultural properties in Danville -- barring two specific exceptions that would allow council approval instead. The town argued the project did not invoke Measure S.

"The Appellate Court's decision on the rezoning issue is a blow to democracy and the public's right to rely on voter-enacted measures that seek to protect the right to public vote and Open Space," Cella said. "It is one more brick in walling off government from the people."

Oakland-based attorney Stuart Flashman, who represented SOS-Danville, said Monday the decision indicates the court believes a local general plan "means whatever the city or county says it means" and that "words on a page don't necessarily mean what they say."

The appellate court stood firmly behind the plaintiffs and the county judge on the issue of bicycle safety, determining the town failed to adequately address the project's potential impacts on cyclists during its environmental review required by the California Environmental Quality Act (CEQA).

"We conclude substantial evidence does not support the Town's finding that the Project would have no significant impact on bicycle safety," Margulies wrote.

She later added, "We affirm the trial court's determination that the Town violated CEQA by failing to adequately investigate bicycle safety and discuss it in the (environmental impact report)."

Both sides are in the process of discussing what steps to take next, but representatives from each party indicated any further appeal is unlikely.

The Town Council is scheduled to talk about the case in closed session this Tuesday.

"While it's not my place to speak for the Council before they've discussed this, I'd say that further appeals on the Town's part are unlikely, given Friday's ruling, and that we will be focusing our attention on how to address the bike safety issue in order to comply with CEQA," Calabrigo said.

Flashman said SOS-Danville officials are weighing whether to file a petition for review to the California Supreme Court, but he noted such a review "is not very likely as it's an unpublished case."

The opinion authored by Margulies, and supported by presiding justice James M. Humes and associate justice Robert L. Dondero, was filed as an unpublished opinion -- meaning it could not be cited as precedent by other courts or parties in other legal cases.

SOS-Danville reps may request that the bicycle-safety component of the opinion become published, as they believe that ruling could be precedent-setting in requiring review of bicycle impacts as part of the CEQA process, Flashman said.

The environmental group is also considering asking the trial court to order the town to cover its attorneys fees related to the bicycle-safety component of the appeal, the attorney said.

SummerHill Homes representatives declined to comment when contacted Monday. The company was listed as a "real party in interest" in the lawsuit.

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10 people like this
Posted by Arlene
a resident of Diablo
on Sep 15, 2015 at 6:24 am

Thank you to SOS-Danville, the many volunteers, and everyone who worked so hard on this case. It is very disappointing to hear the results.

Like this comment
Posted by resident
a resident of San Ramon
on Sep 15, 2015 at 8:17 am

You cant stop "progress" when there's MONEY involved. Did anyone really think they could stop these homes from being built?? hahahahahahah If you did, that's a good one. Danville loves the property tax revenue just as much as anyone.

8 people like this
Posted by diablodave
a resident of Diablo
on Sep 15, 2015 at 8:25 am

diablodave is a registered user.

While the appellate court ruled narrowly on the question of the Town of Danville's failure to follow Measure S by allowing them an out via the "abuse of discretion" language, the FACT remains that the citizens of Danville overwhelmingly stated their intent in an unambiguous way via the passage of Measure S and that the Town Council CLEARLY DEMONSTRATES that they think they are above the will of the people. It is shameful that the Town Council puts developer money ahead of the interests of its citizens.

Thanks to SOS Danville for opposing the Town Council's blatant overreach. Even though there was not a clear victory on the issue of Measure S, it did slow the town and the developer down and cost them a lot of money to defend. Unfortunately, the people of Danville in their apathy on this issue will be paying the costs - both legal and quality of life.

4 people like this
Posted by Orville Right
a resident of Diablo
on Sep 15, 2015 at 8:30 am

A word to the wise bicyclist: these judges have not ridden the Diablo Road corridor, outbound from Green Valley.

Bicycle safety on that section to at least Diablo Scenic is now, and always has been, non-existent = "zero." It is unclear to me how the new Summerhill homes could affect anything that already does not exist.

2 people like this
Posted by Julie
a resident of Monte Vista High School
on Sep 15, 2015 at 9:34 am

Clearly those judges have never biked or sat in traffic on Diablo Road if they consider adding more houses and cars not "unreasonable"!

5 people like this
Posted by cyclist2
a resident of Danville
on Sep 15, 2015 at 10:07 am

More people, more people, we need more people in this town (city)...It isn't congested enough!

2 people like this
Posted by SOS-Danville Group
a resident of Danville
on Sep 15, 2015 at 10:18 am

Thank you for your coverage of this important court decision, Jeremy.

Here is the full text of SOS-Danville Group's statement about the Appellate Court's decision:

We are gratified that the Appellate Court has taken a stand for the safety of bicyclists throughout California and affirmed Judge Austin’s decision in the trial court that the Town Council had improperly failed to evaluate bicyclist safety impacts from the nearly 1000 more car trips per day from the SummerHill development. The Court’s clear message is that governmental decision-makers such as the Danville Town Council members and developers such as Summerhill Homes cannot claim as they did in their briefs that bicyclist safety is not an environmental impact. Bicyclist safety is, instead, a significant factor that must be considered before approving new developments. We hope that the Court will recognize the importance of this ruling and publish this portion of its decision.

However, this was not a complete victory for the community. Regarding the issue of whether the Town Council had illegally rezoned Agricultural Open Space land to allow residential development in violation of the Danville General Plan, the Town’s blueprint for development, the Appellate Court opted to reject Judge Austin’s well-reasoned decision, which understood that the Town’s approval of the development circumvented the voters and their right under Ballot Measure S to decide by public vote whether a housing project could be dropped onto such Open Space land. Instead, the Appellate court ruled that the Council could disregard the Danville General Plan’s clear and undisputed list of allowable zonings for such Open Space land and that such disregard was not an “abuse of discretion”. It is important to note that the Appellate Court did not rule that the Town Council’s rezoning was the “right” decision, only that it was not so unreasonable as to violate state law.

As Judge Austin stated in the hearing prior to his decision in our case, the Town Council essentially added a “secret zoning” to the General Plan’s specific list of those that could be used for Agricultural Open Space land. The Council’s obvious reason was to avoid a public vote and instead cater to powerful special interests. Shockingly, the Appellate Court did not even bother to address the denial of the public’s right to vote.

The Appellate Court’s decision on the rezoning issue is a blow to democracy and the public’s right to rely on voter-enacted measures that seek to protect the right to public vote and Open Space. It is one more brick in walling off government from the people.

3 people like this
Posted by FanDanville
a resident of Danville
on Sep 15, 2015 at 4:40 pm

This is a shameful action by the Town Council and by Town Manager Joe Calabrigo.

I am embarrassed to be a part of the Town of Danville in its clear action to side-step and avoid a Measure S vote.
(My personal apologies to the SOS people and those surrounding neighborhoods.)
I wonder what "circumstances" it would actually take to ever require a Measure S vote?

This was action by the Council taken against "all of us Citizens in general" and accomplished by using our own tax money against us. And we keep voting them back in because no one will step up who is clearly apart from this insider group. They could have just let us vote on it. But, no, they want to ram-rod through their agenda without citizen interference.

This appeal action was legal maneuvering in some of its dirtiest format.
The Town WON this legal battle, but it should not have!

Shame on the Court for failing to understand the basic issue involved here (and for overruling the lower court).
(From a number of cases that I have seen over time, I'm convinced that the CA Appellate Court is a bunch of corrupt, self-serving, law manipulating idiots. I would not shake hands with one of them!)
I find the Town Council to be despicable too (and avoid them where ever possible).

Now the Town will build when and wherever it wants to and will rezone land as it pleases and without any approval by the Citizens.
Measure S is dead! Might as well tear it out of the books.

The victory on the "bike safety/environmental" issue was just a minor, inconsequential side-issue, although of some importance to bikers in general. It was not the major issue here.

By the way, this "non-publishing" technique is probably not well known or well understood by the on-the-street person--but some legal decisions are arranged "just for that case," and not for everyone else. The decision only applies to that case (that property, those parties) and the case is not to be used as legal precedent for everyone else. This allows a bad decision to effect only certain limited, targeted parties, but the Judges themselves don't even feel confident enough about what they are doing to let the decision apply to, and get felt by, everyone else (and maybe even including their own loved/chosen ones). Why should that ever be?
The best analogy is to think of Pontius Pilate washing his hands at his decision to execute Jesus.

Why to go Council? Hope you sleep well at night!?!

3 people like this
Posted by KM
a resident of Danville
on Sep 16, 2015 at 8:06 am

Every time there is an election for the Danville Town Council I try desperately to vote in new people, bud sadly few even try to run, and I must be in the minority and every one else just checks the box for the incumbents. So nothing will change;they love development (and developers) and will continue to fill every available lot or piece of land (no matter how small or hilly or agricultural) with houses crammed in, without regard for traffic, schools, water, cyclists, quality of life.

2 people like this
Posted by miSFit
a resident of Diablo
on Sep 16, 2015 at 10:28 am

Agreed FanDanville. Unfortunately to add to the disgust, I see that Town Manager Joe Calabrigo continues to get rewarded for his shameful actions by getting his employment contract renewed and another salary increase--this time a 4% salary increase! Ref. Town Council Meeting 9/1/2015, Resolution No. 76-2015, Item 5.6 Web Link

Like this comment
Posted by Derek
a resident of Danville
on Sep 16, 2015 at 1:54 pm

FanDanville: "I wonder what "circumstances" it would actually take to ever require a Measure S vote?"

That is the question we must ask our council, city manager, & mayor, and if/when anybody can get a coherent answer, it needs to be recorded on the nearest smartphone and preserved for posterity.
Or, perhaps, another variation- "Do you ever intend to uphold any part of Measure S as approved by our citizens, or will you continue to kowtow to developers?"

They owe us the answers. They work for us (yeah, I know, that's a real knee slapper). Only by embarrassing them in public can we hope to slow the eyesore developments that keep appearing like poison toadstools.

4 people like this
Posted by Kris
a resident of Danville
on Sep 18, 2015 at 6:54 pm

Now that I got my house in Danville (or Diablo), let's not allow anyone else to move in to this lovely community. Fight fight fight, anyway you can, to keep this development away. That's not quite the spirit I want in my community, but it sure seems to be the case here.

Like this comment
Posted by Yes Please
a resident of Danville
on Sep 19, 2015 at 9:59 pm

Next up. Rent control.

Sorry, but further commenting on this topic has been closed.

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