|
Getting your Trinity Audio player ready...
|
The Danville Town Council recently held a closed session discussion on a lawsuit that was brought forward last year alleging that the town wrongfully rejected applications for a new housing development.
Attorneys for Ido Adler, the owner of a 47-acre parcel in the Anderson Ranch neighborhood, argue that the town failed to follow applicable state law in its denial of an application for a subdivision on the property in order to accommodate a 38-unit housing project that was first applied for in 2023.
Attorneys for the town have denied any wrongdoing in an answer to the complaint filed last November in Contra Costa County Superior Court.
The escalation followed an appeal from Adler to the Danville Planning Commission last summer – which was ultimately denied – in which he argued that the town had wrongfully marked his applications incomplete, with the first decision being made Jan. 19, 2024, and the second being made April 18, 2024 after Adler resubmitted the application.
One issue with the application that was raised was the lack of listing of any easements to the site – with none existing, according to Adler’s attorneys, a matter that is being challenged in a separate lawsuit against the Anderson Ranch Single-Family Owners Association that was filed in 2023.
While agreeing that it would be necessary to list any easements to the site in the application should they exist, Adler’s attorneys contend that the failure to do so with no existing easements sets the applicant up for failure, and serves to fuel the town’s alleged agenda of preventing new housing.
“Many local agencies are hostile to Builder’s Remedy projects that seek to develop housing that would not have been permissible had the local agency maintained a compliant Housing Element,” Adler’s attorneys wrote in the lawsuit filed in November. “The Town here is no different, as it would prefer that the Project not proceed.”
Adler had been seeking approval of the application under the so-called builder’s remedy provision of the California Housing Accountability Act, which limits local jurisdictions’ ability to deny applications for new housing projects if they do not have a compliant Housing Element certified by the state.
This was the case for Danville in 2023. While the Town Council certified its Housing Element for the current cycle and passed it on to the state earlier that year, it wasn’t until almost a year later, after several rounds of revisions requested by state officials, that it was certified as substantially compliant with state law.
Had Adler’s appeal last summer been approved, the project would have remained subject to the builder’s remedy provision. With the appeal being denied and the applications being deemed incomplete, a new application would be subject to the terms of the town’s now-certified Housing Element.
“The Town was motivated to find Adler’s formal development application ‘incomplete’ on any basis so that Adler would lose the ability to pursue his Builder’s Remedy project,” Adler’s attorneys wrote.
Although Danville’s Housing Element has since been certified by the state, Adler and his attorneys argue that the project is still subject to builder’s remedy provisions. The preliminary application for the project was submitted in 2023, prior to the Housing Element being certified, which “had the effect of ‘vesting’ the town’s non-compliance” with applicable state law “for the purposes of processing the project”.
“Specifically, under the Housing Crisis Act, the Project is legally subject to only those ‘ordinances, policies, and standards adopted and in effect’ when the Preliminary Application was submitted,” Adler’s attorneys wrote. “In other words, the Project is allowed to proceed under Builder’s Remedy even though the Town later obtained HCD certification for its Housing Element.”
Adler’s attorneys contend that the finding of their client’s preliminary application – and its revisions – as “incomplete” has less to do with any failure to meet necessary requirements than it does with simple distaste for the builder’s remedy provision.
“Many local agencies are hostile to Builder’s Remedy projects that seek to develop housing that would not have been permissible had the local agency maintained a compliant Housing Element,” Adler’s attorneys wrote. “The Town here is no different, as it would prefer that the Project not proceed.”
“Faced with a Project it would prefer to reject, the Town began a predictable effort to find some procedural device by which it could defeat Adler’s Preliminary Application rights,” they continued. “The Town’s efforts to find a way to defeat the Project have led it to violate various state laws.”
With the case continuing to make its way through the courts, the Danville Town Council held a closed session discussion on the topic at its May 20 meeting, which was preceded by two public comments from married residents of the Anderson Ranch neighborhood in the northeastern part of town.
Longtime Anderson Ranch resident Linda Danis urged the council to continue fighting the lawsuit, and argued that it is emblematic of a pattern for Adler and other developers.
“Mr. Adler purchases land knowing he cannot build on it and that it is zoned as open space, yet he continues to try to do it by filing lawsuits against the town, our homeowners association, and East Bay park district,” Linda Danis said. “His attorney has submitted hundreds of pages of legalese to try to confuse the matter and make it difficult for a judge to discern what matter is at hand. The judge even postponed the first hearing because she didn’t have time to read through it all.”
“Adler seems to have a lot of money to throw at this, and I know the town probably doesn’t, but I ask that the town not allow a rogue developer to come in and build on our beautiful hills, especially when he doesn’t even have an easement that would allow cars, let alone construction equipment, to pass through our homeowner association’s property,” she continued.
“I ask that you not cry uncle or cave into Ido Adler’s relentless persistence, but instead stand strong against this out of town developer who wants to build homes on an unstable hillside that has massively slid in the past,” she added.
Another point of contention in the lawsuit is over what level of geotechnical report and analysis for the property is required for a complete application.
The preliminary development application did not include a “comprehensive and detailed soils and geotechnical report” according to the town. However, it had included a “preliminary engineering, geology, and/or seismic safety report” that conforms with the requirements in the town’s application checklist, according to Adler’s attorneys.
“Nothing in the Town’s application checklist requires submission of a ‘comprehensive and detailed’ report at this very early stage of the application process,” Adler’s attorneys wrote. “Again, the only relevant issue at this time is whether Adler submitted that information ‘actually required’ by the checklist. By timely submitting a preliminary report, which is plainly all that is required, he did just that.”
The submitted report identified 12 landslides on the site and acknowledged that further analysis was needed, but had been delayed by inclement weather at that point.
Dave Danis, the husband of the previous speaker at the May 20 council meeting, echoed his wife’s concerns about the geotechnical hazards in the area, but took a more sympathetic tone on Adler’s character.
“I don’t know Adler – I’m sure if I just met him some place we’d get along,” Dave Danis said. “I don’t spite the guy at all despite all of this, but what I do know is this – he bought 47 acres that were zoned open space with no easements.”
These requirements were spelled out during the sale of the property, he added.
Adler purchased the property in 2021, which has been designated as open space since the inception of the Anderson Ranch subdivision in 1986 – a point his attorney’s noted in the initial complaint, as well as noting that Adler and his wife had purchased the property with the goal of pursuing residential development.
“Residential use generally is not allowed in the General Open Space land use designation,” Adler’s attorney’s wrote. “The Town, however, failed to comply with its legal obligation to timely secure the State’s approval of its sixth cycle Housing Element update, to provide for the Town’s fair share of the Bay Area’s housing need. The California Department of Housing and Community Development (‘HCD’) did not certify the Town’s Housing Element as being substantially compliant with state law until April 9, 2024, more than a year after the statutory deadline.”
Dave Danis argued in last month’s meeting that this had presented an opportunity for Adler.
“He knew going in what the deal was, and again, I don’t spite him – I mean a lot of people would do what he’s trying to do – but the thing is that doesn’t make it legally right to develop on this property,” Danis said.
With a decades-long career in real estate, Dave Danis said that he had experience with the strategy he saw Adler’s attorneys using.
“What his attorney is doing is what I tell my attorney to do,” Dave Danis said. “It’s a simple tactic, and it’s basically to ignore existing conditions and try to change the conversation until it starts to slant your way.”
The two lawsuits, Dave Danis said, seek to argue that a previously considered – but as of yet non-existent – pedestrian easement could be “manipulated” in order to allow for an easement large enough to accommodate vehicles and construction equipment, as well as streets and utilities.
“Being in the business, I would do what he’s doing, but that doesn’t make it right and what he’s doing is actually wrong,” Dave Danis said.
The Town Council did not report out any actions taken on the item following its closed-session discussion May 20.
The lawsuit is set for a continued case management conference at 8:30 a.m. June 26 in Contra Costa County Superior Court.
