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Danville to appeal ruling in SummerHill Homes lawsuit

Original post made on Aug 14, 2014

The Danville Town Council has voted unanimously to appeal a Contra Costa County judge's recent ruling that the town acted improperly during its approval of a new residential development proposed for the northeast part of town.

Read the full story here Web Link posted Wednesday, August 13, 2014, 7:02 PM

Comments (73)

Posted by Concerned voter
a resident of Danville
on Aug 14, 2014 at 8:04 am

Well, we seem to have reached the epitome of arrogance and denial with our current Town Council. By unanimously ruling to appeal this lawsuit, they have decided to:
1. Needlessly spend tens of thousands more of our tax dollars on outside council.
2. Ignore the well placed opinion of a Superior Court Judge in our county who ruled in part that the Town Council
"improperly changed its General Plan to reassign agricultural land at Magee Ranch for residential development, and did so without complying with Measure S by putting the issue to a popular vote."

It does not get any clearer than this. And by the way, Mr. Storer, neither the lawsuit nor the appeal will have anything to do with
"protecting ridgelines and hillsides." It is and always will be about the Town Council ignoring it's responsibility and obligation to the citizens of Danville. Since you were not around in 2000, just a friendly reminder, this is a right we gave ourselves and it is about time you and the rest of the team woke up and acknowledged that fact.

Yes, the arrogance is as clear as the issue itself. Shameful to say the least.

Posted by American
a resident of Danville
on Aug 14, 2014 at 8:28 am

I have appeared in front of Judge Austin many times over the years, and he is a very well respected, experienced, and credible Judge, who has an impeccable reputation of being an independent and neutral Judge who simply follows the law. It is sad that our town council, who surprisingly is not made up of one attorney, has absolutely no idea what they are doing with this appeal, and will waste a ridiculous amount of our taxpayers money on a frivolous appeal. Of course, our town attorney has to "recommend" they pursue this appeal, since he previously "recommended" the legality of this development.

Posted by FanDanville
a resident of Danville
on Aug 14, 2014 at 8:42 am

The Cpuncil are showing themselves to be a bunch of egotistical morons who have no legal common sense at all.
Shame on them for dragging us, Taxpayers, and our tax dollars into their war against implementing our citizen vote for Measure S.

Is it possible to IMPEACH Council members?
It would be nice if they would learn from their mistakes, but they seem impervious to correction.

Why is it that there was only one Danville person, and a retailer at that, that would come forward as a Candidate to run against these back-stabbing fools?
How can we vote them out of office without other candidates to vote for?

When we vote that one new person in, will the incumbents understand our message to them.....and change their ways.....or just carry on as a majority.

Unanimous decision? There is not one voice of caution, concern, or self-criticism after being essentially censored by the court.

I have got to believe that Danville STAFF and Danville's legal counsel are also a part of the problem here and are advising them wrongly for their own ends.
Some heads need to roll here!

How much MONEY has been spent on this fight to date?
How much MONEY will be spent on this appeal?
Where is the investigatory reporting? Danville Express get your act together!

Posted by JT
a resident of Danville
on Aug 14, 2014 at 8:52 am

Always two sides to this. I support open space, trails, preservation of ridgelines. stream channel setbacks, habitat preservation, and species corridors.

I am not an expert. A couple of questions to research and understand...
1) We agree that the Magee land is zoned agricultural, however does that mean that it is not developable as zoned. I seem to have read somewhere that the Magee agricultural zoning allows one home per five acres. In other words, could Magee propose a development that conforms to the 1 per 5 zoning, thus avoiding Measure S. The net of a proposal like that EIR-wise is much the same as the current proposal. Similar number of houses and traffic issues.

2) If SOS Danville tries to appeal the judges ruling, likely that will be based on the judge saying in essence, except for bicycles, the EIR is fine. SOS doesn't want to give an inch on that either, because they know that if in appeal, the appellate judge agrees with the zoning question outlined in Q1) above, then they have lost everything. It is just too easy to address bikes in the EIR as is to get approval.

3) Just how bad is the compromise on the table today? If both sides go the appeal route, they are likely to be thrown into the compromise situation they find themselves in today.

4) If SOS Danvilles goal is 100% no development on that land, unfortunately, I don't believe the courts or political will prevent that. To reach that goal SOS Danville would do well to engage in fund raising to buy out the land.

Posted by Concerned voter
a resident of Danville
on Aug 14, 2014 at 9:06 am

To FanDanville,
Good question on investigative reporting or lack thereof by the Express. However, don't hold your breath. The Express is snugly in the pocket of the Town Council. Evidence of this is the fact that during the last town election, the Express attended a private gathering at the home of Storer to watch the election returns together. The entire and current sitting Town Council was present as votes came in and the Express happily captured photo ops of the group huddling around the computer screen. That same group had already signaled their intent to not allow Summerhill to go to a Measure S vote. Unfortunately, the Express is part of the same club and not capable of acting as an independent thinking press.
I wish it was not so, but history shows a well orchestrated collection of elected officials and a silent press.

Posted by Peter Kluget
a resident of Danville
on Aug 14, 2014 at 9:11 am

JT, you're being way too rational about this. You're supposed to take an extreme position, then call anyone who doesn't toe that line bad names. If a judge agrees with you, he's a paragon. If he rules the other way, he's a "judicial activist."

There's no place for a calm assessment here. We want ranting, raving, name calling and brickbat throwing!

Posted by Liz
a resident of San Ramon
on Aug 14, 2014 at 9:12 am

Friends in Danville -> use your votes to change the make up of your council. We've been pretty successful in San Ramon.

Posted by Irony
a resident of Danville
on Aug 14, 2014 at 9:29 am

I find it pretty ironic that the opponents of Summerhill claimed (in essence) that their due process rights were infringed by not having the ability to vote on the project, then are outraged by the Town exercising its due process right to an appeal. If the opponents are truly correct, it will be reinforced by the Court of Appeal, although all should bear in mind a choice quote from Justice Jackson from some years back about appellate jurisprudence: "We are not final because we are infallible, but we are infallible only because we are final."

Posted by Dave
a resident of Diablo
on Aug 14, 2014 at 10:37 am

A couple of points:

1. The town council back in 2000 put Measure S on the ballot and we approved it. This measure limits the ability of the tow council to change zoning where it impacts housing density. Although this council wasn't seated at that time, it is the law of the land and the point of the lawsuit was that the town council was ignoring their legal obligation to put the question to a vote of the residents.

2. The town council has shown a clear bias toward the developer, Summerhill. The assumption made in the absence of any clear evidence to the contrary is that the town council likes the fees and taxes that will be added to the town coffers as a result of this development.

3. IF you want to take the time to study the records, you will find that the incumbent town council has spent close to $500,000 of your tax dollars to fight legitimate rule. Nobody says you can't develop the land...but what we are saying is you must put it to a vote as required by Measure S - and not do a back room deal with the developer.

4. If the town council were honest and transparent, they would clearly articulate their issues with Measure S (they haven't) and if they think it should no longer be the "law of the town" then they should put it's rescission to a vote - just like how they did it when their predecessors wanted Measure S.

5. If any of this is annoying to you as residents and taxpayers, you should vote the incumbents out in the upcoming election and replace them with honest representatives if you can find any.

Just my two cents....

P.S. Mine is not an extreme view...just the thoughts of somebody who thinks our representatives should abide by the law.

Posted by SOS-Danville Group
a resident of Danville
on Aug 14, 2014 at 10:43 am

*****If you would like to help us FUND OUR DEFENSE of Judge Austin's rulings, please go to our website and click on the "donate" button to be linked to our Paypal account. Thank you for your help in protecting the public's Measure S voting rights and Danville's precious remaining open space!*****

In addition to the appeal already voted on by the Town Council, we fully expect SummerHill Homes to appeal Judge Austin's ruling that the FEIR was legally inadequate on the issue of bicyclist safety. In all likelihood, the Town Council will eventually vote to join in SummerHill's appeal brief on that issue. In the litigation thus far, SummerHill's outside attorneys have handled the EIR compliance issues and the Town Council's outside attorneys have handled the General Plan/Measure S issues, with each joining in the other's briefs.

In answer to JT's questions: We understand fully that there are limited development opportunities under the existing zoning/land use designations of Magee Ranch. The current zoning possibilities absent the Town's illegal rezoning would not, however, result in 69 homes being built---far fewer would ever be built and they would not all be on the most visible, environmentally sensitive areas where the Council-approved project locates them. Similar to the Elworthy West property where KB Home has built the 100-unit "Quail Ridge" development on Agricultural land, the steep slopes, slides, streams, and other geologic hazards characteristic of Magee Ranch make development of 5-acre ranchettes there uneconomic as well as being contrary to the General Plan. As you know, the Town Council illegally denied the public its Measure S right to vote on the much-maligned Elworthy West development, just like they are fighting tooth and nail to deny it on SummerHill's Magee Ranch project. If the public had had its Measure S right to vote on Elworthy West, the result would have been a much smaller, more environmentally benign project that the public approved of, and so it will be if the public succeeds in getting its vote on the SummerHill Magee Ranch project.

By the way, if the Town Council actually believed its malarkey about the greatness of the Elworthy West and Magee Ranch projects, why then is the Council so afraid of Measure S public votes on them? The answer of course is that the projects are no where close to being acceptable, and that is why the Council will do anything---even violate the Danville General Plan as Judge Austin has ruled---to prevent such public votes and help the special interests that want the projects.

We fully understand that the Town Council could redo the EIR to address bike safety in a way that complies with CEQA. Nonetheless, we believe that in redoing the EIR, the Town Council will at least have to acknowledge the current dangerous conditions on Diablo Road for the tens of thousands of cyclists that travel that road every year to Mt. Diablo State Park, and possibly offer some mitigation for increasing the car traffic by 1000 cartrips/day. There was absolutely no bike safety analysis in the FEIR approved by the Council, despite many comments ---including even a power point presentation---about the dangerous conditions. The Town Council ignored all those comments, and refused to even agree to post "Share the Road" signs, which had been suggested by the Valley Spokesmen Bicyclist organization.

Posted by Susan
a resident of Green Valley Elementary School
on Aug 14, 2014 at 10:49 am

@Irony: We are outraged by the appeal just as we have been outraged all along by the Council's actions regarding the SummerHill project and before that the Elworthy West KB Homes Gulag. At some point, we are hoping that the Council will listen to their constituents and stop serving SPECIAL INTEREST housing developers and land investors/speculators.

Posted by Irony
a resident of Danville
on Aug 14, 2014 at 12:15 pm


You seem to miss the fundamental flaw in this entire reaction: SOS and the opponents of Summerhill are arguing that as a matter of law the development must be put to a vote pursuant to Measure S. The Town viewed it differently, and, under their interpretation, if they were to put it to a vote, and the vote lost, the Town could be on the hook for a claim that the Town improperly took value of the McGee Ranch land by not permitting otherwise permissible development - the Fifth Amendment to the US Constitution (as applied to the States via the Fourteenth Amendment) requires the government to compensate an individual for the taking of his or her property.

Thus, the only logical step is to allow the courts to determine the meaning of Measure S. The interpretation of Measure S is, itself, a legal conclusion. As such, the trial court made its determination, which will now be reviewed de novo by the Court of Appeal (because the interpretation of Measure S is purely a legal question).

The outrage that this process is being followed seems silly: irrespective of the route the Town took, they faced the possibility of liability. Moreover, the path they took ultimately complies with the specifically enumerated purpose of development of special concern areas in the general plan (which McGee Ranch is). Whether the implementation of P-1 zoning is permitted will be decided on appeal.

Posted by Derek
a resident of Danville
on Aug 14, 2014 at 12:42 pm


I'm not too clear on what you are getting at in the first paragraph above when you say "the Fifth Amendment to the US Constitution requires the government to compensate an individual for the taking of his or her property". Did I miss something? When did the city even discuss "taking" property? You are talking eminent domain, and that was not invoked here, was it?
But let's go past that leap for a moment. If every word above is true, why the heck doesn't the council and city planning department simply say what you just did? Why all the underhanded secrecy? These are reasonable questions, and they do not mandate replies that accuse the rest of us - as Kluget so often agitates - of being tin foil hat-wearing NIMBY bigots.

There is a much more simplistic question here, and it is not rhetorical in the least: Given that at least one or two of the current (and perhaps past) council members may be living in Danville for decades to come, why are they so intent on trashing our little town? Or said another way, why are they so intent on preventing opposition to the fouling of our nest? What's in it for them? How do they personally benefit from increased tax rolls?

The logic of an increased tax base is like the poor farm worker who keeps wanting more kids to pick more produce. The cost of raising those children will vastly exceed any financial benefit an extra kid may provide, but never mind that, because some folks cannot see past next week.

Posted by Irony
a resident of Danville
on Aug 14, 2014 at 1:20 pm

With respect to the portion about a taking, I believe the argument would go something like this:

1. Property owner wants to develop property in a particular way, and views the currently-enacted zoning as permitting such development (and, necessarily, that Measure S does not apply);

2. Town puts it to a vote in accordance with Measure S;

3. Development is voted down, and property owner can only develop in a less-profitable manner;

4. Property owner sues claiming that he was denied the right to develop his property improperly (because Measure S doesn't apply and, therefore, he had the ability to develop in other, more profitable manners).

In that instance, if Measure S doesn't apply, but the Town still put it to a vote, I think the owner would have a decent argument that he should be compensated for the difference in revenue because the reduction in revenue was directly resulting from a governmental action (i.e., a vote denying the ability to develop in accordance with otherwise valid zoning).

I understand that a lot of opponents of this development think it is so the Town can pad its coffers, but I frankly don't think the council is terribly concerned about that aspect. I think they are more interested in finding a way to take a huge chunk of land and reach a development agreement whereby the vast majority of it remains open space.

When looking at this in a 10-20 year range, if this development is shot down, the land will be developed one way or another - the trial court already determined that A-5 zoning is compatible, meaning that five acre lots could be placed all over the hillside (similar to the area above Tassajara Lane). By agreeing to clustered development, they are able to reduce the total number of lots and maintain a huge amount of permanent open space. In fact, in developing it this way, I suspect the Town would ultimately receive less tax revenue than it would in an ultimately built-out large lot scenario, as those large lots would likely be worth significantly more.

In any event, I suspect we simply disagree about whether there is a nefarious purpose behind the Town's actions. My bigger point is that we should let the legal system work to the conclusion as to what Measure S means (as a matter of law) before jumping up and down that the Town did something incorrectly, and that it appears to me, given the legal landscape within which they were operating to make their decision, they were damned if they did, and damned if they didn't.

Posted by Kid n Play
a resident of Danville
on Aug 14, 2014 at 1:35 pm

Those Diablo folks got theirs, now they are fighting fighting fighting to make sure they don't have any neighbors around their pearly gates. Any logical person would want clustered development rather than houses all over the hill, these folks are riding the red frog and anything else they can to stop development from happening period. There is no save open space, no save the frog, no protect the bike riders- it's more like SOS Diablo- SAVE OUR SPACE so you can't get yours.

Posted by preservationist
a resident of John Baldwin Elementary School
on Aug 14, 2014 at 1:48 pm

@Kid n Play: Now let's hear your rant about anybody that happened to have opposed Elworthy Ranch KB Gulag, or the impending development of Elworthy East in the Shadow Hills area. Sorry, Kid n Play, but SOS-Danville is composed of citizens all over the Danville area. Any other local folks that want the law to be followed that you want to trash?

Posted by motorist
a resident of Green Valley Elementary School
on Aug 14, 2014 at 1:55 pm

Yet another crash occurred on Diablo Road in the dangerous 2-lane portion. The latest one was Monday night, Aug. 11 at the intersection of Diablo Road and Alameda Diablo. A motorist apparently failed to negotiate a curve and crashed into a fence and overturned. The road was closed for a couple of hours. Luckily, no one was killed.

And Danville Town Council wants to add another 1000+ cartrips per day to that dangerous road.

Posted by Honor Measure S
a resident of Greenbrook Elementary School
on Aug 14, 2014 at 2:03 pm

@Irony: Folks, I suspect irony is good ole Geoff Gillette, Danville's propaganda--- I mean information--- officer.

Here's some irony for you, Geoff. The Mayor Robert Storer baits SOS-Danville saying that "you won't be able to raise the money to stop us from doing what we will do" in approving the SummerHill project without a Measure S vote. Clearly, Storer does not fear a lawsuit. Then, the Town defends the suit with all its might in league with the developer and land investors. Town loses at trial level, but still wants to spend more to defend its illegal actions.

Yet you claim the Town Council is merely "protecting" the Town and the public by not requiring a Measure S vote in this case. You theorize that there would be a frivolous suit by the land investors and developer and the mere threat of it should be cause to violate Measure S so as to avoid that possible frivolous lawsuit. Come on, Geoff. Even you must laugh at your specious analysis.

Posted by Run DMC
a resident of Danville
on Aug 14, 2014 at 2:24 pm

The SOS movement here is to stop any & all development around town. I have watched Town staff & the Town council guide this Town through slow, thought out growth. Couldn't be happier to live her & be a part of this beautiful community. SOS folks throw mud at staff, council members, anything & everything to make it seem like everyone is part of this big conspiracy of lying & cheating. I saw it at the recent SOS fear mongering meeting with the Shadow Hills neighbors, watch out the big bad wolf is coming to tear down your hill, actually can you please donate money to our cause?

Posted by Peter Kluget
a resident of Danville
on Aug 14, 2014 at 3:09 pm

"There is a much more simplistic question here, and it is not rhetorical in the least: Given that at least one or two of the current (and perhaps past) council members may be living in Danville for decades to come, why are they so intent on trashing our little town? Or said another way, why are they so intent on preventing opposition to the fouling of our nest? What's in it for them? How do they personally benefit from increased tax rolls?"

Derek, you've asked the right question. Keep going and you may actually find the answer. To begin with, lots of folks don't think that concentrating the density of the development which is currently authorized by law on that site constitutes "fouling our nest." They think it's "minimizing the impact." Maybe they're right; maybe you are. That's a matter of opinion. Everyone has one.

But neither the city nor any city officials have any pecuniary interest in seeing this development go forward. If the developer drops it (it happens) you'd see a big yawn. But given the property rights of the owners of the property, the city ***has*** to do something about the request to develop it, and ***has*** to be able to defend any restrictions it puts on that development under law - or yes, the city can be sued. And cities sometimes lose, with disastrous consequences. (e.g. Half Moon Bay)

City officials don't have the luxury of sitting in a bubble saying "I don't like it. Stop it. Go away." They can only go so far in preventing the owner from developing the property. I assume the city has gone as far as it feels legally entitled to go with requiring the various conditions and restrictions which accompanied the approval of the project. (I don't know what those are, to be honest. I don't really care about this one development one way or the other and haven't studied it.) Presuming that it's all a matter of graft, corruption, underhanded dealing, etc. just betrays ignorance of how this stuff actually works. Private property - yeah, it's protected by the Constitution. Worth thinking about.

Posted by JT
a resident of Danville
on Aug 14, 2014 at 4:21 pm

I get that the project will add 1000 car trips per day. by my calculations there are 1,440 minutes in a day. So that equates to less than 1 extra car per minute. That seems pretty reasonable.

OK, likely most of the 1000 trips will happen in a 12 hour period. Lets assume that 3/4 of the trips will happen in 12 hours, or 720 minutes. That's one extra car per minute.

You see how using this logic results in numbers most people assume would have modest impact. This is why the EIR was approved, because others not living on this corridor don't see it as a show stopping issue.

Yes I get SOS Danville not wanting any houses, and using Measure S as the ruse. Carefully read "Irony" and "Klugett" for why the town council is proceeding as it is.

For the community of Danville, the compromise proposed development appears to be a good deal.

And contrary to opinion, every one of those 5 acres can be configured so it is on buildable land. Not one of those hills or houses can't be designed to work on that land. Think narrow and long property for the hill slopes, rustic rolling curvy roads up and down the hills and along the ridge tops. Think of all the wonderful house and street lights visible from Diablo. And there would be no more stench of cows, just beautifully landscaped properties. It can be called Diablo South. And Danville residents can enjoy their walks on these safe relaxing low density roads, even at night under the quiet glow of yellow lighting.

Sounds like a romantic development to me. Let Magee develop it at one per five, and SOS will be SOL!!!

Posted by commuter
a resident of Green Valley Elementary School
on Aug 14, 2014 at 7:51 pm

@JT: Most communities that have intersections rated E and F because of backups during peak times would find that adding even a few cartrips per day at peak times would be significant and require workable mitigation or fewer homes. Of the 1000 more cartrips per day from SummerHill, over 100 will be at peak times when there are already substantial back-ups (ten minute delays) at Diablo Road intersections. And that is WITH the school buses paid for (90%) by Measure J taxes for congestion relief. But Danville's Town Council sees fit to use a measure of significance that finds 100+ more trips at peak times will not cause a significant impact. Hogwash!

Posted by joe
a resident of Danville
on Aug 14, 2014 at 8:46 pm

irony, who are you really?
Fifth Amendment? There is nothing stopping McGee from selling his land and complying with the law.... Using as he wishes, is not the hurdle protected under the 5th. The town's plan is not the minimum necessary to protect is rights as a landowner. Landowners do not have the right to convert the use of property without consideration. If it were true why EIRs? Why zoning at all? Can one sue the government for a sluggish economy because it hurts market values.

Posted by joe
a resident of Danville
on Aug 14, 2014 at 8:48 pm

The appeal was expected cheap and easy like some councils.

Posted by joe
a resident of Danville
on Aug 14, 2014 at 8:52 pm

There is no such thing as rush hour, there is no such thing as rush hour, ....
I get that the project will add 1000 car trips per day. by my calculations there are 1,440 minutes in a day. So that equates to less than 1 extra car per minute. That seems pretty reasonable.

OK, likely most of the 1000 trips will happen in a 12 hour period. Lets assume that 3/4 of the trips will happen in 12 hours, or 720 minutes. That's one extra car per minute. As long as drivers coordinate his or her trips to ensure that two cars won't leave at the same time :)

Posted by Tony Adamich
a resident of Danville
on Aug 14, 2014 at 10:04 pm

Obviously it's time to break the town council mold. As the only challenger to the Town Council incumbents I want it to be clearly known that I am 100% against the Summerhill development and plan to be a true champion of protecting open space. For me, the core problem with the Summerhill issue isn't one of legalities, it's the reality that the Town Council did not listen-to or acknowledge the voices of the residents of Danville. The role of a Town Council member is to be a public servant...
Additionally, I would love to directly connect with the SOS folks so as they fight the good fight in the appellate court we can work together to unseat one of the Town Council incumbents and shoot to extend that same action to future elections.

Posted by TL Nelson
a resident of Danville
on Aug 15, 2014 at 12:30 am

There is money involved between the developer and the town council members. What other explanation could there be for the council to defy the law and the people of Danville. A wise person once told me that whenever something that is otherwise un-explicable happens, "It is always about money".

Posted by American
a resident of Danville
on Aug 15, 2014 at 8:33 am

Tony: You have my vote. I appreciate your common sense. This is exactly why term limits are a good idea, as once elected, politicians like our town council folks, often forget who elected them, and who they are suppose to listen to and represent.

Posted by JT
a resident of Danville
on Aug 15, 2014 at 9:31 am

It seems the best thing the town council could do to improve the intersection is approve the Magee development. Why? Because that way money will get spent on improving the intersection. There are plans in the EIR that address improving the traffic throughput efficieny of the intersection. Without doing the Summerhill/Magee project, then no money gets spent, and all of the drivers can continue their peaceful car meditation while waiting to clear the intersection.

Since this intersection mainly affects those that created the problem in the first place, those in Blackhawk and the existing Magee Ranch, perhaps the town needs to make this a FastTrak toll intersection, where each time you go through it charges users $1. Think of how much money this will raise. At 1,000 extra trips a day, the new magee development alone will contribute $365,000 per year!

And the extra funds could be used to convert Diablo Road into 4 lanes, with bicycle lanes, and straighten it out all the way to South Gate road. That would solve that problem, all the complaints about it being a dangerous road.

There are solutions, we just need to think out of the box. Approve Magee as is!!!

Plus, let's not be naive, other California cities have lost major financial judgements against as was discussed above, so the city would appear to be limiting it legal exposure.

Posted by Follow the law
a resident of Danville
on Aug 15, 2014 at 9:46 am

Not approving the Magee SummerHill debacle as is would not be a taking. Just ask any decent land use attorney. For it to be a "taking" under the constitution, there has to be no other use of the property (and there is--as Ag. land for grazing which it is being used for now ) or with a far more desirable development scheme with far fewer houses). And in any case, the procedures followed would have to BE LEGAL, and the Council followed ILLEGAL procedures to avoid a public vote. Does anyone disagree that the Council should be allowed to follow ILLEGAL PROCEDURES in rezoning a property so as to avoid a LEGALLY REQUIRED public vote on it? PLEASE ANSWER DIRECTLY THAT QUESTION. JT, what is your answer?

Posted by JT
a resident of Danville
on Aug 15, 2014 at 10:03 am

@TonyA: In reference to: "I am 100% against the Summerhill development and plan to be a true champion of protecting open space."
I like protecting open space as well. There are many that will argue that the Magee/Summerhill development does protect "open" space. In fact it actually increases open space, because currently the space is private and CLOSED to the public. If you don't believe me, then start hiking around and see if the ranch caretaker chases you off in his 4WD pick-up truck, like he did to me.

Folks, the Magee property is NOT OPEN SPACE. It is privately held, agriculturally zoned land, with zoning that allows 1 house per 5 acres.

As a true champion of open space you will come to realize that developing the land as it is currently zoned will DESTROY OPEN SPACE.

In the compromise that was approved, much of the land would not be built on, plus other land would be open to the public for their enjoyment. The view sheds would be preserved. It is my position that a true open space champion will realize that this is a great deal as it actually preserves open space without the town or its inhabitants having to spend one nickel to get it.

Your other option is to raise the money yourselves to buy out the land from Magee. It is a good option, a really good option. But most people don't have a stomach for increased taxation to purchase these lands, so they will look to you to come up with better solutions, like the one currently on the table.

This is not mainly about open space. I believe people want to preserve their pristine backyards, with their fences along grasses and oaks, and not pools, BBQs and casitas; preserve the viewsheds; not increase any more traffic. In actuality, not a majority of people go out and use the trail system and open spaces.
The only traffic jam I have ever found in an "open" space is along the iron horse trail. Whenever I get out in the real open space, there is not one traffic jam of people to be found. So it is not as if there is a shortage of parks or open space going on around here.

Posted by JT
a resident of Danville
on Aug 15, 2014 at 10:20 am

Good question. I realize my shortcoming in the extensive body of land use law and how it relates to Measure S. You are right in that regard, and I do recommend following the law. I also know that in this realm the property owners do have some rights, and affected stakeholders have rights to protest.

My big question is can Magee take his land today and subdivide it into 5-acre lots and sell them off as is. If he can, I already know which area of the ridge line that I would want to buy. It is this one area (that I won't get specific on so the buying public won't know the best spots to buy) that has views of Mount Diablo, the hills towards the Altamount Pass, hills south of Livermore, and the impressive Las Trampas Ridge, and let's not forget the Pleasanton Ridge as well.

This would be some of the most premier, primo, best ridgetop ranchette house plots in ALL of California. Distant sunrises and sunsets, moonrises and moonsets, Diablo lit up during the day and night. It doesn't get better than this!!!! Northern California living at its absolute finest.

So please, you tell me what the law says specifically about the current owners rights to develop this land. Then we can perhaps talk about a compromise that is good for the stakeholders.

Posted by Peter Kluget
a resident of Danville
on Aug 15, 2014 at 12:28 pm

Follow the law, if you're right, the city will lose the appeal. If you're wrong, they'll win. Seems to me the folks who are upset with the City for filing the appeal (which happens pretty much every time there's a ruling on one of these lawsuits at the trial court level, by one side or the other) are afraid that the appeals court will find they're wrong.

Personally, I don't know. What I do know is that the legal issues are a little more subtle than you can express BY SHOUTING. I'll wait to see what the result of the appeal is.

Posted by Follow the law
a resident of Danville
on Aug 15, 2014 at 12:31 pm

@JT: Thank you for your honest answer to my questions.

I recommend you go out to Tassajara Valley past the various Blackhawk subdivisions involving P-1, clustered residential development zoning. Then continue driving to where you see some homes spread far apart on the flattest land, to the Agricultural-designated areas. Hills are mostly open, with nice wooded views and grassy hillsides for the passersby to see. Nice, isn't it? That is the worst case scenario that could happen to Magee Ranch. But that wouldn't happen. Because it is in the land investors' economic interests to do a P-1 clustered development. It is too expensive to put in all the infrastructure to put 5-acre ranchettes on slide-ridden hills. Furthermore, don't forget that under the existing Danville ordinances no one can put houses on top of ridgelines or just below them. Also, the slope ordinance precludes any homes from being built on 30% grade or higher. So the existing law and economics will prevent most 5-acre ranchettes from ever being developed if such a subdivision were ever approved---which is actually contrary to the General Plan anyway. But to do a P-1 clustered development involves a rezoning. In exchange for that rezoning, the investors and developers should compromise with a far smaller project. SummerHill's project is not a compromise.

By the way, there is no General Open Space being created through the SummerHill project. Don't plan to do any hiking there if the project goes through. All the land, except the land that is now Ag. Open Space and will be covered with the clustered homes, will remain in Rural Residential or Single Family/low-density designation. It will be managed by a "Geologic Hazard Abatement District." Now what does that tell you about the development prospects for the land that SummerHill does not currently want to cover with houses? That land could be available down the road for more development. There will be no parks---you can't hike on any of the land, except on one fire road near a dangerous curve on Diablo Road, and there will be no parking for it. This project is a sham from start to finish.

Oh, and by the way. If you want to understand the traffic, try driving down from Blackhawk/Camino Tassajara about 8:00 a.m. any school day except Tuesday (when Monte Vista starts late). You will encounter a back-up of about 100 cars that will take you 10 minutes just to get through at the Mt. Diablo Scenic/Diablo Road intersection. Then you will encounter another back-up at the Green Valley/Diablo Road intersection. And that is with the traffic reduction in place because of the existing school buses! Then you will have a clue as to why local residents have spent four years trying to get their legally-entitle public vote on this mess of a project. And that is just the start of the environmental problems this project will create for everyone in the Diablo Road corridor.

Posted by Follow the law
a resident of Danville
on Aug 15, 2014 at 12:45 pm

@ Peter Kluget: See for yourself, Peter, as I and many other local residents have done. The illegality of the Council's rezoning is obvious.
Go to page 52 of the 2010 Danville General Plan (not sure of the page in the 2030 Plan. Don't think the Town has ever published it after over one year since it was approved). You will see a description of the "Agricultural" land use designation. As part of that section, you will see a list of "Consistent" zonings. P-1 is not on that list. But State law requires that zoning be "consistent" with the land use designation. Therefore, as Judge Austin ruled, the Council did an illegal rezoning when it rezoned the 200-acre Magee ranch Ag. parcel to P-1 zoning, so that the entire 400+ acre ranch could have all the potential homes from the maximum upzoning of each parcel, placed on it. It is really quite simple, Peter. You don't need to be a land use lawyer to figure it out.

The General Plan (i.e. "the law") requires that the Ag. parcel be redesignated for a land use that allows P-1 zoning (such as the Rural Residential one). That redesignation from an Open Space use (such as Ag.) to another use (such as Rural Res.) is what triggers the requirement for a Measure S public vote of approval. The Council and SummerHill wanted to avoid the public vote because they thought (knew?) that they would lose. That is why the Council attempted an illegal rezoning. The Council got away with it on the Elworthy Ranch Gulag. They can fool us once, but they can't fool us twice.

Posted by Old Timer
a resident of Alamo
on Aug 15, 2014 at 2:10 pm

Please correct me if I'm wrong, but if I recollect correctly, the Town Council supported Measure S in 2000. Would be terrific if someone can identify who was on the Council in 2000? My hunch is that one of it's authors is currently on the Council and maybe he can explain the intent vs the reality and confusion we all are now experiencing

Posted by Derek
a resident of Danville
on Aug 15, 2014 at 3:17 pm


I share your frustration with not being able to hike as much of the east and west hills as we would like. "Open space" has come to be synonymous with "public open space", though it wasn't always so. Definitions vary.

I have never done any hiking on the lower parts of the Diablo flank, but wifey, offspring, and I do go up various Las Trampas trails somewhat often. And there are places we cannot walk, or forks in trails (like a southward left fork off the Remington Loop trail portion) that lead to private property. The thing is, for me open space is not always defined by my ability to hike or bike, but rather what my eyes can see. Even though I might be gazing up or down on private property from Las Trampas, it is still open and undeveloped, and it still pleases the eye.

I don't know what will happen at the conclusion of the Summerhill debacle, but let's all enjoy the view while we can. Lord knows there is nothing left to see behind the KB Gulag unless you crane you neck steeply.

Posted by Barbara
a resident of Danville
on Aug 15, 2014 at 3:18 pm

Maybe I've been watching too many Law & Order episodes so I have an easy question for the legal experts out there. Since this issue is going to the Appellate Court will the City Attorney instruct the Town Council not to comment on the pending case? Not sure if that would hurt or help them. Please let me know.

Posted by JT
a resident of Danville
on Aug 15, 2014 at 5:39 pm

Good information. Thanks all. I would like to see all or some of the land preserved as permanent open space with trail access from McCauley Road to the EBRPD park off of Sycamore Valley, and from the vicinity of Mt. Diablo scenic to same. Also, would like to see the view shed preserved. And I too get truly sick of cities bending, breaking, making rules for developers.
And the town does need to take the car traffic seriously, as well as biker safety.

The same issues are happening every day with the Urban Limit Line.

Posted by voter
a resident of Danville
on Aug 15, 2014 at 7:41 pm

Tony, You have my vote! And I will only vote once.

Why did the Town Council support Measure S in 2000 if they really didn't want it. Possibly it was to defeat the other measure on the ballot that they wanted even less. Why doesn't the Town Council in Danville represent the voters?

Posted by Realist
a resident of Danville
on Aug 16, 2014 at 12:28 pm

Follow the money, @voter. Here's an answer to your question of why the Council doesn't represent the average citizen: Did you see the list of contributors to Newell Arnerich's failed campaign for Assembly? It was a Who's Who list of developers active in this area. He will be on Council for another 2 years at least helping those same developers.

Posted by SOS-Danville Group
a resident of Danville
on Aug 17, 2014 at 12:44 pm

Thank you for your excellent question, @Old Timer. Hope the following will help.

If you search the internet for "Measure S Danville 2000" you can read the entirety of Measure S including the accompanying ballot information. We have reprinted it below. You will see in the ballot information that current Council members Newell Arnerich and Mike Doyle were Council members in 2000, and as the proponents of Measure S(along with 2 other Council members---apparently the 5th was opposed to the Council's blatant attempt to defeat the public's Ballot Measure R),the key promise they made was the following:

"Measure S supports the General Plan's definition of Danville as an essentially built out community. Measure S offers Danville residents a deciding voice in any proposed change to areas not planned for development. Danville voters would have to approve any change in use on Open Space, Agricultural, or Parks and Recreation land."

Under the Danville General Plan, "Open Space" is defined as any land designated for "General Open Space", "Parks and Recreation", and Agricultural" use. Both the KB Homes Elworthy Ranch West 300+ acre parcel where there are now about 100 units, and the Magee 200-acre parcel where SummerHill wants to locate 66+ units, are designated for "Agricultural" use. Clearly, any voter reading the Council's promise in the ballot information would have assumed that developments such as KB's and SummerHill's would be a "change in use" to Agricultural land and would require a vote of public approval under Measure S before such projects could go forward. Now the Council is saying no, we didn't mean that; we were, in effect, just misleading you when we told you that in the ballot information. The Council members argue that the very land under the 100+ KB units is still in "Agricultural" use and that the very land under SummerHill's proposed 66+ units will be in "Agricultural" use just because it will still be designated for Agricultural use in General Plan. But we all know that is simply preposterous and thankfully Judge Austin agreed.

By the way @Old timer, what Newell Arnerich and Mike Doyle say 14 years later about their "intent" regarding Measure S is legally irrelevant. Their current statements are now just self-serving ones and are not legally reliable as evidence of what Measure S meant when it was passed 14 long years ago. What is legally relevant is what was said in 2000 by Arnerich and Doyle and the other Measure S proponents in the ballot information discussed above.

In any case, Judge Austin did not even need to examine the ballot information for Measure S in coming to his decision. He found that apart from Measure S the Town Council had violated the 2010 Danville General Plan's required procedural steps (i.e. a change in land use designation from Agricultural use to Residential use) in its SummerHill project approval(the same illegal procedures the Town Council followed in approving the Gulag Elworthy). As an aside, the judge said that the reason the Council had violated the General Plan's required procedural steps was that the Council apparently wanted to avoid triggering Measure S' public vote requirement.

Measure S
General Plan Amendment - Open Space
Town of Danville

15,000 / 74.4% Yes votes ...... 5,161 / 25.6% No votes

See Also: Index of all Measures

Information shown below: Impartial Analysis | Arguments | Full Text

Shall the people of the Town of Danville enact an amendment to the Town's General Plan, known as the Danville Open Space Preservation Initiative, to preserve Agricultural, General Open Space and Parks and Recreation Land Use Designations and requiring voter approval for future general plan amendments to lands with those designations?

Impartial Analysis from City Attorney
A General Plan is a long term planning document that serves as the land use constitution for all future development within a town. Measure S, the Danville Open Space Preservation Initiative, would amend the Town of Danville's 2010 General Plan by adding a new policy regarding proposed land use changes for lands currently designated in the General Plan as Agricultural, General Open Space and Parks and Recreation.
The measure would readopt and reaffirm the existing land use designations of Agricultural, General Open Space and Parks and Recreation contained in the Town's General Plan. Properties with these land use designations represent approximately 40% of the total acreage within the Town. As defined in the General Plan, these land use designations generally allow either no or very limited development.

For properties within these land use designations, the measure would add a new process for approving any future change in land use. Under state law, general plan amendments may be approved by a simple majority of the Town Council after review and recommendation by the Town's Planning Commission. The measure would provide that if a general plan amendment changing the land use from Agricultural, General Open Space or Parks and Recreation to any other use is approved by the Town Council, the proposed amendment would then be subject to approval by the Town's voters at a subsequent election. Without voter approval, the proposed change would not become effective. 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.

If approved, this measure would remain in effect for 20 years and could be amended only by the Town's voters.

This measure will take effect immediately if adopted by a majority of voters unless a competing measure (Measure R, the Danville Public Planning Initiative) is also adopted by the voters and receives a higher vote total.

Copies of the land use map are available at the City Clerk's office. Phone 324-3388 for information.

Suggest a link related to Measure S

Links to sources outside of Smart Voter are provided for information only and do not imply endorsement.

Arguments For Measure S Arguments Against Measure S
The open spaces surrounding Danville define our small town character and enhance our outstanding quality of life. Preservation of open space has been a major goal since Danville's incorporation in 1982. Our park standards and open space dedication requirements are the highest in the county. A new General Plan, carefully written for today and the future, was adopted in August 1999. It reflects a broad-based community consensus reached after eighteen months and more than forty public meetings involving hundreds of residents. Measure S, "The Danville Open Space Preservation Initiative", is an affirmation of the vision embodied by our new General Plan. This General Plan designates 4000 acres - 40% of Danville - as Open Space, Agriculture, or Parks and Recreation, which represents almost all of the undeveloped land within Danville. Measure S preserves Danville's future by requiring voter approval to change any of those designations. •Measure S will preserve Open Space, Agriculture and Parks and Recreation lands.
•Measure S is simple, straightforward, and legally defensible.
•Measure S will protect the vision which has defined our community's history since its incorporation.

Measure S will enhance safeguards for the protection of open space and agricultural lands within our Town. The Measure ensures that any change in these areas would have to be supported by the community.
Measure S is a clear, concise, and effective alternative to Measure R, which is filled with outdated policies drawn from a General Plan that no longer exists, and will have to be sorted out in the courts. The voters of Danville deserve the opportunity to choose a measure that will protect what we all cam to this Town to find, and will do what it claims it will do. Please join in the preservation of our community by voting Yes on Measure S.

Millie Greenberg, Danville Mayor

Mike Doyle, Danville Vice Mayor

Newell Arnerich, Danville Councilmember

Richard L. Waldo, Danville Councilmember

Beverly Lane, Director, East Bay Regional Park District

Rebuttal to Arguments For
The Danville General Plan has just undergone its first significant revision in over ten years. The new General Plan was approved by the Town Council in August 1999 - well after the CAPP initiative petitions (Measure R) had been circulated. This is the same Town Council (except for one member who has stated his opposition to Measure S) which now brings you Measure S.
Why, now, do we suddenly need to pass Measure S and amend the new General Plan? The truth is - we don't.

Measure S is simply a ploy to defeat Measure R. This is one of the tricks commonly employed by developers to defeat citizen-sponsored initiatives. If voters can be confused by two initiatives they will probably just vote no on both of them. This preserves the status quo. Our Town Council saw this work against the CAPP initiative in San Ramon and has borrowed it for their own use.

If the Town Council really wanted the provisions of Measure S to be in the General Plan they could have included them when the plan was revised last year. There is absolutely no reason that this measure should be before you now - except to defeat Measure R.

Please do not be confused by the two competing measures. Read them both and decide.

Please join the undersigned Danville citizens and VOTE NO on Measure S.

Edward Schwarz

Bridgett O'Connor

Sandra Paiva

Karin Hanson

Park Meiter
Vote NO on Measure S - a "gimmick" measure placed on the ballot for one purpose - to defeat the CAPP initiative.
Measure S was put on the ballot by a simple vote of four members of the Town council - as compared to the four thousand Danville residents who signed the CAPP initiative petitions.

Measure S is bad for Danville. It:
•Requires the Town, not the developers, to pay for any elections.
•Was not subjected to the scrutiny of an analysis by Town Staff.
•Provides a "loophole". Future Town Councils could approve development without a vote of Danville residents by declaring that not approving a development would be a "taking" of private property.
•Could have been included in the General Plan update passed by the Town Council last August (at a cost in excess of $100,000.00).
•Does not reinforce the policy on agricultural land. A future Town Council could decide that large industrial is consistent with agricultural uses.
•Contains misleading wording when it states that the voters "reaffirmed and readopted" the land use designations in the General Plan when the voters never affirmed or adopted them in the first place.
•States that the Town "intends to adopt a UGB (Urban Growth Boundary)" when the UGB should have been included in the measure. This shows how quickly the measure was thrown together to combat the CAPP initiative.

This measure has too many loopholes, was put together too quickly, and does not guarantee the voters a say in development in Danville. Despite its name, it is NOT even an initiative. It is a GIMMICK placed on the ballot only to defeat the CAPP initiative. DON'T BE FOOLED. VOTE NO on Measure S.
Edward Schwarz

Sandra Paiva

Bridgett O'Connor

Karin Hanson

Park Meiter

Rebuttal to Arguments Against
Measure S is the product of a thoughtful and carefully built consensus reached after numerous public hearings and extensive public participation. It was placed on the ballot to offer Danville residents a meaningful choice between two very different paths to the future. It did not happen quickly, but is the result of a lengthy community-wide effort, and a logical extension of our outstanding new General Plan.
Measure S will protect the vision which has defined our community since its incorporation. The course laid out by our new Plan will continue to focus on our quality of life and well maintained, safe neighborhoods. Danville is one of the most admired communities in the Bay Area, and our exacting standards - embodied in Measure S - have been carefully developed to enhance our Town's special character.

Measure S supports the General Plan's definition of Danville as an essentially built out community. Measure S offers Danville residents a deciding voice in any proposed change to areas not planned for development. Danville voters would have to approve any change in use on Open Space, Agricultural, or Parks and Recreation land.

Measure S is clear, straightforward and precise. In two pages, it safeguards Danville's high development standards in an unambiguous, legally defensible way. Measure R sprawls across eight pages of muddled, outdated, and inaccurate policies which will result in expensive legal challenges. We urge the voters of Danville to read both measures and choose the one that best serves our Town.

Vote YES on Measure S.

Millie Greenberg, Danville Mayor

Mike Doyle, Danville Vice Mayor

Newell Arnerich, Danville Councilmember

Richard L. Waldo, Danville Councilmember

Text for Measure S
The People of the Town of Danville do ordain as follows:
Section 1. Intent and Purpose. The following findings are made in support of this measure.
•In August 1999, the Danville Town Council adopted the Town of Danville 2010 General Plan. The 2010 General Plan was adopted after 18 months of significant public participation, including numerous neighborhood meetings and public hearings. The General Plan represents a broad-based community consensus regarding the appropriate land uses and development patterns that may occur in Danville in the future.
•In order to ensure continued community consensus in the pattern of urban growth in Danville, this measure, the Danville Open Space Preservation Initiative, would require voters to ratify and approve any general plan amendment allowing development of lands currently designated in the 1020 General Plan as Agricultural, General Open Space or Parks and Recreation, which together represent approximately 40 percent of the land in Danville.
•Consistent with Policy 5.01 of the 2010 General Plan, the Town of Danville intends to identify an Urban Growth Boundary (UGB) that designates an adequate amount, range, and density of land use within the Boundary to meet projected needs of the community. The UGB will be adopted following environmental review and public hearings before the Town Planning Commission and Town Council.
•By requiring voter approval of changes to important open space, agricultural and parkland land use designations in the General Plan, this measure establishes a comprehensive program to ensure community concerns will be considered prior to development of lands not currently designated for urban development. Voter approval of smaller, infill development projects on lands already designated for development in the General Plan is unnecessary and does not further the goals of the 2010 General Plan.

Section 2. General Plan Amended. The Town of Danville General Plan is hereby amended by adding a new Policy 1.14 to read as follows:
1.14. The Land Use Designations of Agricultural, General Open Space and Parks and Recreation contained in the Town of Danville General Plan in effect on November 7, 2000, were reaffirmed and readopted by the voters of the Town in an election held on November 7, 2000. The lands with those Land Use Designations are graphically depicted on the Land Use Map contained in the General Plan. Until November 7, 2020, the Land Use Designations for those properties may be amended only by one of the following two procedures:
(a) By a vote of the people at an election; or
(b) By a 4/5's vote of the Town Council if the Town Council, after a public hearing, makes one of the following findings that is supported by substantial evidence in the record:
(i) That approval of the land use amendment is necessary to avoid an unconstitutional taking of a landowner's property rights and that the new land use is only the minimum necessary to avoid the unconstitutional taking of the landowner's property rights.
(ii) That approval of the land use amendment is necessary to comply with state or federal law and that the new land use is only the minimum necessary to comply with such laws.

Prior to amending the General Plan to redesignate land pursuant to subparagraphs (i) or (ii) above, the Town Council shall hold at least two noticed public hearings for the purposes of receiving testimony and evidence from the applicant and the public on the proposed amendment and any findings proposed in connection with such an amendment. This hearing shall be in addition to any other public hearings regularly required for a General Plan amendment.

Section 3. Effective Date. This measure shall become effective immediately upon approval by the voters. Upon the effective date, the provisions of Section 2 of this measure are hereby inserted into the Town of Danville General Plan.

Section 4. Interpretation and Severability. This measure shall be interpreted so as to be consistent with applicable federal and state laws, rules and regulations. If any section, subsection, sentence, clause, phrase or portion of this measure is held to be invalid or unconstitutional by a final judgement of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this measure. The voters hereby declare that this measure, and each section, subsection, sentence, clause, phrase or portion hereof would have been adopted or passed even if one or more sections, subsections, sentences, clauses, phrases or portions are declared invalid or unconstitutional. If any portion of this measure is held invalid as applied to any person or circumstance, such invalidity shall not affect any application of this measure that can be given effect without the invalid application. This measure shall be broadly construed in order to achieve the purposes stated herein.

Section 5. Amendment or Repeal. Except as otherwise provided herein, this measure may be amended or repealed only by the voters of the Town of Danville at a Town election.

Section 6. Competing Measures. This measure is intended as an alternative to and is inconsistent with the initiative measure entitled "Danville Public Planning Initiative" (DPPI) which would require voter approval of various land use actions by the Town and would establish an Urban Growth Boundary. The DPPI qualified for the ballot prior to completion of the Town's 2010 General Plan, adopted in August 1999. If both measures are approved by the voters on November 7, 2000, the measure receiving the greater number of affirmative votes shall supersede the other measure. No provision of the superseded measure shall be implemented or become effective.

Posted by California Chateau resident
a resident of Danville
on Aug 17, 2014 at 6:22 pm

To the current Danville Council members Arnerich and Doyle: Were you lying back in 2000 when you said that Measure S would give us a vote on "any proposed change to lands not planned for development"--- meaning to anyone reading it, residential developments on Agricultural lands---or are you lying now when you say you didn't mean what anyone would have understand your Measure S Ballot information promises to mean and that Measure S wasn't supposed to apply to the few remaining Danville Agricultural lands such as Elworthy ranch and Magee ranch?

Tell us, please, Arnerich and Doyle. Do you actually think anyone in Danville would have voted for Measure S over Measure R if they thought it didn't apply to the few Agricultural lands left? That is what most everyone was concerned about when they voted to Measure S and/or Measure R! You tried to trick everyone and should be ashamed of yourselves.

Posted by Derek
a resident of Danville
on Aug 17, 2014 at 7:41 pm

It is possible CCR, that they were lying in 2000 and are lying now as well.

Can our good editor here at the Danville/SR get a comment to many of the above posts from any of the five council members? Does anyone else here wonder if they ever read our comments?
My personal take is that they are too arrogant to "waste" their time worrying over our wishes, but I would be happy to be proven wrong.

Posted by JT
a resident of Danville
on Aug 18, 2014 at 9:54 am

Although I think the negotiated proposed development is a decent one in the amount of land it preserves, and appears better than the Gulag Elworthy Ranch blight, I agree that the City Council should follow Measure S and put the proposal to a vote. Let the community speak...

It takes time for communities to come together, and Danville did in voting overwhelmingly for the approval of Measure S. It is time the developers and city councils start respecting the will of the communities and not the balance in their bank accounts or political favor "accounts."

I suggest the City bring it to a vote in parallel with their appeal. If it wins in a vote, then the appeal is moot. If not, the community has spoken, and you can decide on the merits of your appeal, given your voters are clearly showing that they do not support your position or the job you are doing.

Thanks for all the good information provided in this forum.

Posted by Vanilla Ice
a resident of Danville
on Aug 18, 2014 at 12:55 pm

Back to the original irony of the whole opposition. If there were to be a Measure S vote, the folks from SOS-Diablo would not be eligible to vote from their unincorporated residences.

Posted by Town of Danville voter
a resident of Danville
on Aug 18, 2014 at 2:52 pm

@Vanilla Ice: So you think there are no Town of Danville residents that count themselves as supporters/members of SOS-Danville? Think again, VI. Your number should start at 4000, which is the number of Town of Danville residents that signed the SOS-Danville petition to put a Measure S protection initiative on the ballot (the Town Council hired a law firm to find a technical error that kept the initiative off the ballot despite its having the required County-certified number Town of Danville registered voters' signatures). Oh, and how about the 15,000 Town of Danville residents that voted for Measure S? You think they don't care that the Council is violating it? Think again, VI.

Sounds like the same argument Newell Arnerich tried to make when hoards of people showed up to protest the draft 2030 General Plan that the Council tried to shove down our throats. He claimed that the opponents were not from Danville. Then he, Developer Robert Storer, and the other Council members had to back down in the face of the reality of the situation. The Council ended up having to change their draft to become more acceptable to local residents and not just developers like Storer and architects like Arnerich.

Posted by Derek
a resident of Danville
on Aug 18, 2014 at 4:34 pm

I'm one of those 4,000 Vanilla, and we live by Osage Park. Not exactly the flanks of Diablo, eh?

Posted by vote for Tony
a resident of Danville
on Aug 18, 2014 at 6:19 pm

I am another of the 4,000 who does not live in Diablo and will be voting against the incumbants who are running in Nov.

Though the residents of Diablo cannot vote, they are the ones affected by the development....far more than those council members who live on the Westside of Danville and can totally ignore the negative impacts of one more development.

Posted by unincorporated Danville resident
a resident of Danville
on Aug 18, 2014 at 7:37 pm

To Vanilla Ice-- I live in Hidden Oaks, in unincorporated Danville, across from the place where SummerHill's proposed 66 homes will be located. I resent your taunting of the thousands of us that do not get to vote for Danville Council members yet whose lives will be very negatively affected and possibly endangered by that SUmmerHill development that Storer, Stepper, and the rest of the Council approved and which the court has declared to be illegal. I guess that is one of the reasons the Danville Council members thought they could get away with it, but they thought wrong. Guess they think Danville residents don't care about Elworthy's illegal Gulag, either. Well, they are wrong about that also.

Posted by Elworthy East neighbor
a resident of Greenbrook Elementary School
on Aug 19, 2014 at 12:27 pm

Attention El Capitan Drive area residents: The next Agriculture parcel that the Town plans to illegally develop is Elworthy East, off Como Way and Borica Drives. It is 100 acres and could have lots of homes if the Town Council gets its way. The parcel is under a contract of sale now, likely to a developer (SummerHill Homes? KB Homes?). You better contribute to the SOS-Danville lawsuit.

Posted by SOS member
a resident of Danville
on Aug 20, 2014 at 7:17 pm

Rather than say, "You better contribute to the SOS-Danville lawsuit," one might say you have the opportunity to contribute to the SOS-Danville lawsuit. The victory over the Town was won after many many hours of work by various individuals plus good legal work by our attorney.

Hopefully, we will prevail in the appeal that the Town is committed to, and all of the hard work and $$ already spent will save the Elworthy West neighbors from having to repeat that entire costly process.

Posted by Jill
a resident of Danville
on Aug 21, 2014 at 7:51 pm

Don't you folks realize you're talking to the same people on each of these Posts, feeding your own frenzy? No one else cares! Open space sounds good on a ballot, so we vote Yes. However, don't delude yourselves. The majority of Danville residents like the town & the council & what they've done over the years, so that we are fiscally sound, have an attractive downtown, parks & open space. So, you're fighting over development of the last 2% of available Danville land? (which you don't own). Knock yourselves out. If I had done that, none of you would have a home to live in! And - I don't vote for people who are against ideas; I vote for people who HAVE ideas. You talk about the traffic problem, but has anyone pushed for mandated school busing for the residents (including Diablo, unincorporated Blackhawk, etc.) using that road? How about all of the parents agreeing to NOT let their kids drive themselves to school? Never happen - it's an inconvenience. Everyone talks a good game - unless it impacts them directly. Thus, we have a stupid parking lot across from the high school to accommodate those cars. Now THAT was a waste of land!

Posted by Barbara
a resident of Danville
on Aug 22, 2014 at 7:35 am

Barbara, I've also reflected on the reality of our "talking to ourselves." Does anyone out there have an idea/capability that would use some form of Social Media to reach thousands of Danville residents?

Posted by Diablo road resident
a resident of Los Cerros Middle School
on Aug 22, 2014 at 10:27 am

@ Jill: I am not quite sure what your position on all of this is. Fact #1: there are buses now (since 2010) for all two of the Diablo Road/Green Valley schools---Green Valley El. and Los Cerros Middle. Monte Vista High has buses coming from Blackhawk only. Those buses are fully utilized. 90% of their cost (about $2500 per student per year) is paid for by Measure J tax congestion relief funds. That Measure expires in 2034. And SummerHill's traffic impact was measured with the bus system fully in place. Even with the buses in place (and they could go away at any moment), the EIR for Summerhill's project found a significant impact at Mt. Diablo Scenic and Diablo Road and there will at this time be no mitigation for that because that intersection is in the County's jurisdiction. Even if there were "mitigation"---a signal rather than a stop sign was suggested---that would only move the same traffic down to the next bottleneck at Green Valley and Diablo Road. No matter what traffic geniuses one hires, there is only so much capacity in a two-lane road. And people do need their cars to be on that road. Anyone with a flexible schedule (retired people, etc.) does not venture out during the peak times. So the solution is not to add more houses to the area unless there is a pre-existing entitlement to build them. SummerHill Homes and the land investors in Magee ranch do not have such an entitlement, so just for traffic reasons alone and the inability to do mitigation for every one of those increased cartrips, the project should be voted down.

But I am still not sure what you are getting at, Jill. Do you believe the Council members should be allowed to violate the law (the Danville General Plan and Measure S)? That was the question before the court, and the judge said "no", the Danville Council may not violate Danville law. I hope you agree, Jill. Then when the vote comes up (if Summerhill goes through a legal approval process and then the project goes to a public vote), I hope you will review all the facts surrounding that project before you vote on it. Don't just say that traffic congestion could be easily avoided, blame it all on the parents of local students, and then vote "yes".

Posted by parent of a student driver
a resident of Monte Vista High School
on Aug 22, 2014 at 2:52 pm

@jill--- the parking lot across from MV actually saves unnecessary trip. Otherwise there would be 4 cartrips rather than two in many cases.

Posted by Derek
a resident of Danville
on Aug 22, 2014 at 3:20 pm

Whether you speak for the majority Jill is open to debate. On your side, we do indeed have the incumbents and their underling Morgan on the council. On the other hand, the VAST majority of those who turned out in droves to the Summerhill meetings were there in opposition to both the project and the trampling of Measure S.
And your presumption that "If I had done that (oppose future development), none of you would have a home to live in!" is pretty bizarre, unless you have lived here more than five decades and are at least in your 70's. Because when my family moved here we did not buy a new Kracker Box home, we bought a house that was constructed in the 1960's - almost certainly before you had even heard of Danville.

Posted by Jill
a resident of Danville
on Aug 22, 2014 at 7:15 pm

Your assumptions are wrong, but why I posted in the first place is a mystery to me ... must have been a weak moment ... I should have expected the criticism; it's the same stuff I heard at the meetings when anyone might have a different perspective or idea. Yes, there are now some busses as a result of Measure J (thanks for assuming I'm clueless) ... but obviously not enough of them, as I still know lots of folks who continue to drive their kids to/from school (because they want to) ... or let them drive themselves (convenient). 'Parent' is in agreement with what I said, stating that the MV parking lot is a convenience - and cuts down on trips to/from. If all students were mandated to use the busses (by the district, not the town ... but, gee, they could work together!), traffic would be reduced. I'd never presume to speak for anyone but myself, so I don't know why Derek would assume that? And, actually, I have lived here for a very long time - in three different parts of Danville, when it was cows on hills & only 2-lane roads & Blackhawk & most other developments didn't exist, so you can apologize for your snarly remarks. I'll go back to my own thoughts & let you continue to pontificate & reply with condescending remarks. So much for finding real solutions vs. just shooting down different viewpoints.

Posted by Barbara
a resident of Danville
on Aug 25, 2014 at 6:52 am

Back to my question...since we are actually talking to ourselves. Does anyone have a suggestion on how to get this message out (beyond put it on your Facebook)?

Posted by Judge
a resident of Green Valley Elementary School
on Aug 25, 2014 at 6:54 pm

Pretty cut and dry from a legal stand point. Judge Austin is correct in his ruling that the provisions of Measure S were violated when a vote by the town was not taken to approve the Summerhill project, as provised for in Measure S. End of story.

Posted by Anne
a resident of Danville
on Aug 26, 2014 at 7:15 am


Start a Facebook group for this topic. Perhaps Measure S Danville? You will be able to post information regarding this issue to educate the community.

Posted by Apathy fighter
a resident of Alamo
on Aug 27, 2014 at 4:02 pm

I am stunned by the lack of followup by the SOS-Danville Group. I almost sense that in typical Danville fashion they paid for the attorney and now have walked away. Yes there is always a chance that the Court's ruling can be overturned. Now with the Fab Five of the Town Council weakened the SOS group should be mounting pressure/demonstrating in front of the Town Hall at the next Council Meeting and use Public opinion to force them to pull the appeal. I am also stunned by the lack of media coverage and the wimpy attitude of the Bay Area Newsgroup to expose this injustice..maybe they are now so small that all they use are newsfeeds or are afraid to lose political advertising. The Town Council's horrible judgement in not allowing a vote compounded by a slap in the SOS face with the appeal should be an insult. Instead all I read are words in the confines of 4000 sq ft homes....come on SOS Danville go for the knockout while they are on the ropes. Please explain your inactivity or go for it

Posted by realist
a resident of Danville
on Aug 28, 2014 at 9:56 am

@Apathy Fighter: your criticism is misplaced. SummerHill can appeal the judgement as well. The chances of the Council "pulling" its vote to appeal and are nil. Showing up at Council meetings to speak at public comment or "demonstrate" in front of a building at a meeting attended by a handful of residents concerned with agenda items is a waste of time.

Posted by SOS-Danville
a resident of Danville
on Aug 29, 2014 at 1:19 pm

@Apathy Fighter: Far from being apathetic, our group is fully engaged in publicizing the Town Council's illegal actions and fundraising to defend the Town Council's challenge to Judge Austin's rulings in our favor.

For example:
* We just had a meeting in the Shadow Hills neighborhood where the Town Council will likely approve another residential development on the Elworthy East Agricultural Open Space land in the near future unless we win our lawsuit.
* We are in constant touch with local media, but it is their decision when to run stories about our continuing efforts.
* We maintain and continually update a website, .
* We send out frequent emails to our vast email address list.

If you would like to help us, please go to our website and make a donation by Paypal. Thank you.

Posted by Apathy Fighter
a resident of Alamo
on Aug 29, 2014 at 8:10 pm

The point I tried to make is that you need to make the story fresh and controversial so that the media will get involved. When you wrote that the Town Council "will likely approve another development" and that it is the news media "decision when to run stories" you affirmed that SOS Danville is playing too nice. Sending emails to your email list and updating your site isn't going to make any Town Council member lose their seat when more than 3/4 of the town doesn't even realize their injustice. The Town Council played dirty, I sincerely apologize for using the word "apathetic" but I continue to feel that the efforts have to be aggressively ramped-up for the media to uncover their behavior... I will happily contribute funds when you turn it into what it needs to be --- a street fight (ok so I grew up on the East Coast)

Posted by Apathy Fighter
a resident of Alamo
on Aug 29, 2014 at 8:16 pm

A more civilized recommendation would be for SOS Danville to get counsel from a Public Relations professional rather than just attorneys. Ruin a politicians image and reputation and they have nothing

Posted by Tony Adamich
a resident of Danville
on Sep 2, 2014 at 11:16 am

Assuming that SOS-Danville is still monitoring the comments to this article, I would certainly like to directly connect with someone from your organization and can be reached at [email protected]

For those not aware, I am the only non-incumbent candidate for one of the two open Danville Town Council seats.

Rather than rant on about the legalities, appeal process, Measure S versus the General Plan etc etc my position is very simple: "Why did the Town Council not take the issue to a public vote?"
Even if this question is never answered, isn't it obvious that concerned citizens must begin to chip away at the unhealthy, never ending 5/5 Town Council vote on nearly every issue? With my election we can move issues similar to Summerhill to 4/5 and it's my speculation that one of the four remaining current members would love to move to more of a leadership role and break away from the pack. A 3/5 vote would block any Town Council actions that do not represent the views of the Danville residents.

SOS-Danville, I certainly look forward to meeting with you in the near future.

Posted by Tony Adamich
a resident of Danville
on Sep 3, 2014 at 11:42 am

It's taken me more than a few re-readings of this article and all of the insightful comments from concerned San Ramon Valley residents to begin to assimilate even a few of the legal issues.
I've reviewed Measure S and it's even easy for me to see loopholes in the Measure. But regardless of the weaknesses, it was approved by 75% of Danville voters.
As I again review the earlier "Judge rules Danville officials improperly approved housing development," I now grasp that the Town's position is primarily based upon a designation in the General Plan that identified more than several areas to be "special concern areas" with the Summerhill development geographic area being in section 3-50/51 of the 2030 General Plan.
So, what I truly cannot understand is how "exceptions" in a Town Council General Plan that only requires a majority Council vote can over-ride/circumvent Measure S that was overwhelmingly approved by voters.

I've been invited to a Sept 17 League of Women Voters roundtable that will obviously include the two incumbents. It would be really appreciated if one of you enlightened voters can explain to me why the Town feels that their rationale is sound? I'm not making a backhanded political statement I really do both want and need your input.

Posted by voter
a resident of Danville
on Sep 9, 2014 at 9:56 am

@Tony: The "special concern areas" include all the remaining Ag. land in Danville. Measure S was a voter-approved amendment to the entire General Plan, including the special concern areas---the special concern areas were not carved out as "exceptions" to Measure S. In fact, they are the very parcels that created the need for Measure S because they include all of the last few open space large tracts of land in Danville. To say that the special concern areas are "exceptions" to Measure S means that Measure S would have applied to almost no land in Danville, which is patently absurd and in fact the Town's attorneys never argued such an absurd theory that the special concern areas were "exceptions" to Measure S. Newell Arnerich is putting forth a new theory to justify the fact that he and Mike Doyle were apparently trying to trick voters when they put Measure S on the ballot, and they got away with it on the KB Homes Gulag development.

Posted by Derek
a resident of Danville
on Sep 9, 2014 at 11:42 am

I'm not sure if it would qualify as "objective" Tony, but the SOS folks should certainly be willing to put you in touch with their attorney for a briefing. The trick is to do it before your roundtable, being that is only a week away.

I can readily understand that no one, you included, is going to want to go into any semi-formal public discussion without all the facts. If you get hammered early on by the city officials it would be a setback that none of us want.

I know this probably sounds goofy, but it might be informative to set up a tiny table at the corner of Prospect & Hartz, and ask all the passersby of voting age how they feel about the behemoth that is rising from the ashes of the hotel property. This is somewhat a microcosm (well, maybe not so "micro") of the type of decision the council and Danville planners make - putting wildly inappropriate projects in places that create an internal eyesore.
It would also be good to ask how those out strolling feel about the current official's decisions of the last few years. If people reply to you, "Gee Tony, we think they are doing a swell job!", perhaps without getting over-aggressive you can explore their reasoning. You know, with some simple questions like: So you are happy with the size of this downtown project? What about Elworthy? And Summerhill? How do you feel about the preservation of our scarce remaining open space? Do you enjoy hiking, birdwatching, etc?
Go git 'em Tony !

Posted by Derek
a resident of Danville
on Sep 9, 2014 at 11:44 am

....uh, sorry, that should be "Eternal eyesore"

Posted by Great idea
a resident of Danville
on Sep 10, 2014 at 1:01 pm

You all should set up a booth in downtown asking if people are happy with the crazy NIMBY behavior that is displayed when a new home is built in town. Your sign could read: "I got mine, you can't get yours, pearly gates closed."

Posted by Derek
a resident of Danville
on Sep 10, 2014 at 2:26 pm

If you can find a post archived anywhere that indicates any poster is complaining about "a home" being built, feel free to show us all.
No one is protesting one home. The protest is against our council's behavior, and two particularly large "settlements" that they allowed through what we perceive to be illegal land use designations.

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