Sunday, November 1, 2020

The Olivia Decision, An Appeal, and A Path Forward

Unfortunately the lawsuit filed by Clayton residents was decided in favor of the developer of the Olivia project. The good news is that the group that filed the lawsuit have stated they will appeal the decision. This didn’t stop Catalano from declaring that the City was "entirely correct" in it’s decision to waive environmental review.

But not so fast. The court did in fact side with the developer, however it did not say the city was entirely correct. It couldn’t have, because the city did not take any position on whether the property was substantially surrounded by urban uses. The court called this out in their opinion:

The court then needed to decide an issue that the city ignored.  Here the court identifies the key questions:

Without a finding from the city, and with no actual definition of what "urban use" was, the court came to a decision on its own:

The court clearly identified that some surrounding parcels were rural.  However, this was not enough to yield a favorable decision.  The court reasons that even if a parcel is specifically zoned rural as it notes here, it can be considered urban.   As noted above, the residents who brought this lawsuit have stated they intend to appeal.

It would be great to see the Developer realizing the passion from the community and come to the table to see if there is a way to move forward that is a win win for everyone.  As I noted in a previous conversation a couple years back - I think most interested parties, all other things being equal, would be satisfied with a two story project.  

I'm not sure how this could come to pass, but I know that Frank Gavidia has some ideas on ways that may motivate everyone to come together.  It is an interesting idea - if other nearby parcels were to be downzoned for various reasons, I think that may get a lot of community support.  The downzoing could range from a slight reduction to medium density, or a larger reduction down to single family occupancy.  It would be a question of working with the interested parties to see what could make the most sense.  And as long as the appeal hangs out there, there is time to negotiate.  And yes, downzoning one area means that we'd have to upzone other areas.  The remaining three parcels are a combined size of 2.47 acres, which works out to a maximum of approximately 46 units that would be needed to be upzoned elsewhere.  That's doable, but only if people like Frank Gavidia and Jim Diaz join me to find these creative solutions.

And this is what Catalano and the rest of the folks who approved this project failed to see.  They talk about $4M of penalties, but that was never going to happen.  Those penalties are for improper project denial, not failure to grant environmental exemption. Catalano herself has stated multiple times that denying CEQA exemption would have resulted in delay.  Delay means time.  But for some reason, both Catalano and Pierce were in a hurry to push this project through.  They both were mayor during this time and controlled the agenda.  This was during a time where we had two interim City Managers, two interim community development directors.  Why the rush?  Perhaps it was to satisfy the goal of promoting high density housing that they had for years:

If there is a goal to promote high density housing, those that were in favor of that goal will look for ways to achieve it.  What they won't do, and didn't do, is look for ways to represent the majority of residents of Clayton who opposed this project and were looking to their elected leaders to find another way.  

The chances are certainly narrowing, but if we can elect Councilmembers like Frank Gavidia and Jim Diaz, then there still may be a chance to represent the people.  I need your help.  That's why I'm supporting Frank and am asking you to do the same.