Neighborhood Group Claims Town is Getting SummerHill Homes Project Wrong

The owners of Magee Ranch and the housing development company SummerHill Homes are asking Danville to make a zoning change that would allow a project to cluster 78 lots, including 19 "casitas" or in-law units, on 120 acres of this 410-acre swath of land.

The project would develop these homes near the valley floor and keep 290 acres of open space above, an idea the town says it encourages.

However, Save Our Creek, a neighborhood group consisting of Danville, Diablo, and Blackhawk residents, is opposed to the zoning change and, thus, the project.

Right now, the project proposal is in the environmental study phase, which the town says will be completed this summer. Town Manager Joe Calabrigo said that this is the process that the project needs to go through before any decision or approval is given to move forward.

He added that there would be ample notice of public hearings regarding the project if the planning commission and the Danville Town Council were to approve anything.

Yet, as the town of Danville asserts that it is following its process, Save Our Creek claims it's trying to circumvent it.

A-1, not the steak sauce

The dustup begins with a discussion on land use designation and zoning.

Here's a quick planning lesson that will hopefully shed some light on this issue. Land use is designated, for example, as industrial, agricultural, or commercial. So, in general, these designations keep factories around factories, farms around farms, businesses around other businesses. For example, this helps keep a paint factory from being built in a residential area. Or, it corrals businesses to cluster around other businesses.

Within these designations are zoning districts. This diversifies the land within these designations. So, if the land use is designated agricultural, there are various districts within that, including light (A-1) and general (A-2) agricultural districts, or agricultural preservation (A-4) districts. The distinctions with zoning districts vary greatly not only between the different designations but even within those designations. Here's an example within agricultural designated land: The A-2, or general agricultural district in Danville states that lots, with one unit, must sit on a minimum of 5-acres. For the A-4, or agricultural preservation districts, it has a requirement of 20-acre lots.

Still with me?

Triggering Measure S: The back and forth

OK, so with that said, Save Our Creek, and its attorney, Stuart Flashman, say that if the SummerHill Homes project is approved by the town council, it would have then go before voters. The reason is Measure S.

Danville voters passed Measure S, or the Danville Open Space Preservation Initiative, in 2000. It says that if land designated agricultural, general open space or parks and recreation is changed to any other use, the people get to vote on it. If the planning commission and the town council approve, for example, to take a chunk of agricultural land and make it industrial, you, as a voter in Danville, get a say.

Save Our Creek claims that the SummerHill Homes' current proposal, if approved, would change land designation from its current agricultural designation to a P-1, or planned unit development district, allowing the development of the 78 lots on 120 acres of the 410-acre property.

"It is unfathomable that Danville's government believes that it can ignore the legal right of Danville residents and decide for itself whether this project can move forward as proposed," Save Our Creek Spokesperson Maryann Cella stated in a press release.

The town disagrees with this claim.

Calabrigo says Measure S doesn't apply because the land use designation of the property wouldn't change if approved, just the zoning district.

"Measure S is triggered when changing land designation, it doesn't have to do with zoning … There is no plan to change the land designation," Calabrigo said.

"SummerHill filed an application for rezoning of property. They have asked to rezone to a P-1. It would allow a clustering of 78 homes. Just because property is planned for agricultural use, that doesn't preclude it from development," Calabrigo said.

It's the town's position that going from A-2 to P-1 is not a land use designation change and that a zone change of this nature is encouraged when developing on agricultural land, as the SummerHill Homes project would attempt to do.

"(SummerHill Homes) is applying for a rezoning from A-2 to P-1," Danville's Principal Planner David Crompton said. "If approved, this would allow the same number of lots, transferred to a more desirable location. The general plan encourages and allows for this approach."

Calabrigo said the property has the right to develop a unit for every five acres, without rezoning. But, by doing this, and not allowing the development to cluster, the town would have homes dotted up and down the hillsides.

"We don't want cookie cutter type developments up the hillside," he said. "(The general plan) discourages one unit per five acres, mini 'ranchettes,' that divide up the land."

This interpretation doesn't fly with Flashman and Save Our Creek.

"While the town of Danville has some discretion to interpret ambiguities in its general plan, the general plan is unambiguous in not allowing P-1 zoning in areas designated for agricultural use," Flashman stated in a release from Save Our Creek. "The Town can't move forward with SummerHill's proposed P-1 zoned project without first changing the area's land use designation and, under Measure S, that would require a vote of the people. If the Town continues on its current course, it will face a legal challenge from Save Our Creek."

Another layer of disagreement

Another layer to Save Our Creeks opposition to the SummerHill Homes project is the preservation of the land itself and, essentially, keeping its current aesthetics intact.

The Magee Ranch, at one point, was under the Williamson Act, or the California Land Preservation Act of 1965. This was a contract between property owners and their cities and counties that restricted the development of agricultural land or open space for lower property tax payments. It was self-renewing, but owners could opt out of it through a 10-year long nonrenewal process. The Magee Ranch was, at one point, under this contract. But, according to Calabrigo, the owners of the Magee Ranch land filed for nonrenewal in the mid-1990s. They are no longer under this contract, he said.

In addition to the claim that the town of Danville is skirting around Measure S, Save Our Creek says that the zoning district for the Magee Ranch continues to be A-4, or agricultural preservation (only allowing 20-acre lots), even after the Williamson Act's expiration date.

Flashman, in a letter to Danville's Principal Planner David Crompton, points to a portion of the general plan that states:

Because properties with this designation are bound by the Williamson Act contract to remain in agricultural use, a density range is not applicable. In the event that Williamson Act contracts are not renewed, continued agricultural use is encouraged and the underlying zoning density (one unit per 20 acres or one unit per five acres) would apply upon contract expiration.

Again, the town disagrees.

"Since the contract expired, it is our position is that it doesn't apply anymore," Calabrigo said.

If the A-4 zoning district were to stand, it would greatly reduce the number of units allowed on the development to less than half of what it currently is requesting.

Save Our Creek has also questioned the , applying the same concerns. This particular project, approved in 2008, will bring 84 single-family homes and 12 apartment units to the rolling hills near the Danville-San Ramon border.

The property is 460 acres just north of a preschool, nursery and an old ranch home. The Elworthy family, a family that has lived in the San Ramon Valley for 150 years, owns it.

"I encourage everyone in Danville to join our cause —including residents that were opposed to the Elworthy Ranch development — so as to ensure that this blatant disregard for the General Plan and the Danville Open Space Preservation Initiative never happens again," Cella said.

What happens next?

Environmental impact, public vetting, and getting your say

Well, the next step is the environmental impact report (EIR).

It is expected to be completed this summer and will examine public safety and its response times to the targeted area, traffic, how the project might affect the land itself, as well as visual impacts, and many other things. Once completed, there will be a public review of this report.

Crompton said that during this review, all concerns would be recorded and specifically addressed. Additionally, when the report does come back, if there are negative impacts that can be mitigated, he said, the town will address them. If there were impacts that cannot be mitigated, the project would have to change.

"There will be a public vetting process (after the EIR is completed)," Calabrigo said. "And while we have an organization who is dead set against the project, they will have every opportunity to be heard through that process. But we're not at that point yet."

Read about other concerns Save Our Creek has with the SummerHill Homes project on their .

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