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Home My WebLink About06.a.1) Consider request of Maryann Cella from Save Open Space-Danville to reconsider participation in District Annexation 186 (Magee Ranch)Central Contra Costa Sanitary District February 11, 2015 TO: HONORABLE BOARD OF DIRECTORS ° VIA: ROGER S. BAILEY, GENERAL MANAGER JEAN -MARC PETIT, ENGINEERING DEPART NT DIRECTOR DANEA GEMMELL, ENVIRONMENTAL SERVICES DIVISION MANAGERVI FROM: RUSSELL B. LEAVITT, ENGINEERING ASSISTANT III SUBJECT: REQUEST MADE AT FEBRUARY 5, 2015 MEETING BY MARYANN CELLA FROM SAVE OPEN SPACE (SOS) DANVILLE TO RECONSIDER PARTICIPATION IN DISTRICT ANNEXATION 186 (MAGEE RANCH) In response to the request to reconsider participation in District Annexation 186, the Board requested that staff provide additional information to further the Board's understanding of the circumstances surrounding this matter. Attached is a flowchart illustrating the steps involved in the CCCSD - LAFCO Annexation Process. District Annexation 186 is currently at Step 6. LAFCO staff has informed the Commission that it intends to recommend continuance of Commission consideration of District Annexation 186 until the Town of Danville's appeal is finally adjudicated. Also attached is a timeline of the Magee Ranch development project, the SOS - Danville lawsuit and the District's processing of District Annexation 186. The District successfully completed its approval of the Resolution of Application, CEQA legal challenge statute of limitation and submittal of an application to LAFCO in advance of the trial court judge's final judgment entry. Furthermore, it was permissible for the District, as a Responsible Agency, to use the Town of Danville's Environmental Impact Report (EIR) in the District's approval of District Annexation 186 in June 2014, since it had not been finally adjudicated. (CEQA Guidelines Section 15231 — "A final EIR prepared by a lead agency... shall be conclusively presumed to comply with CEQA for purposes of use by responsible agencies..." unless the EIR "is finally adjudged in a legal proceeding not to comply with the requirements of CEQA.... "). At this point, there is nothing left for the District to do but wait for completion of LAFCO's decision - making process. Staff recommends the Board take no action on Ms. Cella's request and allow LAFCO's processing of District Annexation 186 to continue. RBL:sdh NAENVRSEC\Position Papers \Leavitt\2015\2- 19 -150A 186 Memo to Board 2- 19- 15.docx CCCSD -LAFCO ANNEXATION PROCESS N: \ENVRSEC \Position Papers \Leavitt\2015\2- 19 -15 \DA 186 Memo to Board 2- 19- 15.docx STEP 7 -9 ONLY APPLY IF THERE IS LESS THAN 100% AFFECTED OWNERS AGREEMENT WITH ANNEXATION. THIS WOULD NOT APPLY TO DEVELOPMENT PROJECTS, WHERE THE PROPERTY OWNER(S) MUST AGREE WITH ANNEXATION IN ORDER FOR THE PROPERTY TO BE SERVED, ------------------------------------------------ ° Step 7: Protest Proceedings ° ° If less than 100% of the affected owners agree with the annexation, LAFCO staff is required to conduct ° ° a "protest hearing ". A public hearing must be held to determine whether there is enough protest to ° ° warrant an election or terminate proceedings. ° L— — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — 1 ° - Step 8: Notice of Protest Hearing ° ° Within 35 days of the Commission action approving the proposal, notice is given to affected owners by ° ° the Executive Officer per State Law. ° L- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Step 9: Protest Hearing ° Protest hearing is held by the Executive Officer on date and time of notice. Written Protests must be filed ° ° on an official LAFCO protest form with the Executive Officer prior to the conclusion of the hearing. The ° value of written protests and number of registered voters (if inhabited annexation) are(determined by the ° Executive Officer. The Executive Officer adopts the resolution within 30 days of the hearing. ° - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - n - - - - - - - - - - - - - - ° ° Step 9A: Approval of ° ° Proposal ° Executive Officer must order ° annexation if: ° ° 1. Uninhabited (11 or fewer ° registered voters) and ° landowners owning less ° ° than 50% of the total ° ° assessed land value ° ° protest. ° ° 2. Inhabited (12 or more ° registered voters) and ° less than 25% of the ° ° registered voters or less ° ° than 25% of landowners ° ° owning less than 25% of ° ° the assessed land value ° ° protest. ° ° ° r - - - - - - - - - - - - - - ° ° Step 9B: Termination ° Proposal will be ° terminated if written ° ° protests contain a ° ° majority of: ° 1. Landowners in opposition ° who maintain a majority ° ° of the land value (if ° ° uninhabited) ° ° 2. Registered voters in ° opposition (if inhabited) ° New proposals must wait ° ° one year. ° r - - - - - - - - - - - - - - ° ° Step 9C: Call for Election ° LAFCO must call for an ° election when an annexation ° ° is inhabited if protest is 25% - ° ° 50 % of registered voters, or ° ° more than 25% of landowners ° ° who own at least 25% of the ° ° assessed land value. ° ° Voters Approve ° (Simple Majority) LAFCO ° adopts resolution confirming ° ° its action approving the ° ° annexation. ° ° Voters Deny ° LAFCO adopts a resolution ° to terminate the proposal. ° ° New proposal cannot be ° ° submitted for one year. ° ° ° NAENVRSEC\Position Papers \Leavitt\2015\2- 19 -15 \DA 186 Memo to Board 2- 19- 15.docx 3 DISTRICT ANNEXATION 186 - MAGEE RANCH TIMELINE (Indented items pertain to the SOS - Danville litigation) June 18, 2013 - The Danville Town Council approved Resolution No. 60 -2013 certifying the Final Environmental Impact Report (EIR), approving the Major Subdivision request to subdivide the 410 +/- acre site into 69 single family residential lots and approving the Final Development Plan. (1) July 2, 2013 - The Danville Town Council granted final approval for the Magee Ranch - SummerHill development application. (1) July 3, 2013 - Danville filed a Notice of Determination with the County Clerk acknowledging certification of a Final EIR and approval of the Magee Ranch project. (2) July 25, 2013 - Save Open Space- Danville filed a lawsuit against the Town of Danville and the Danville Town Council in Contra Costa County Superior Court, challenging the approval of the proposed 69 -home development and the certification of the project's environmental impact report. Also named in the suit were SummerHill Homes, Teardrop Partners, and Magee Investment Company. In the suit, SOS - Danville claimed that the Town violated sections of the California Environmental Quality Act, the Danville General Plan, and Measure S, the Town's open space initiative. The group also sought a court order to rescind the approval, a clarification of Measure S stipulations regarding zoning changes, and attorney's fees. (3) /The District was not named in this lawsuit. November, 2013 — District staff begins working on District Annexation 186 — Magee Ranch. June 19, 2014 - The District Board approved the District Annexation 186 Resolution of Application to LAFCO, using the Town of Danville's certified Final EIR. (4) June 20, 2014 — The District filed its Notice of Determination with the County Clerk, acknowledging use of the Town of Danville's certified Final EIR and approval of DA 186. (4) June 25, 2014 — Trial court hearing on SOS - Danville lawsuit. (5) July 20, 2014 — The 30 -day statute of limitations expires for a legal challenge of the District's use of the Town of Danville's Final EIR to comply with CEQA. No legal challenge was filed against the District. July 28, 2014 — Trial court issued an Order re: Petition for Writ of Mandate (CEQA) and Order re: Demurrer to First Amended Civil Petition (5) District was not notified of and did not receive a copy of these documents until January 9, 2015.1 N:IENVRSEC1Position Pape rs\Leavitt12015\2- 19 -151DA 186 Memo to Board 2- 19- 15.docx 4 Auqust 14, 2014 — District staff delivered the District Annexation 186 application and supporting materials to LAFCO. (6) August 18, 2014 — An approved final judgment, entered with the Contra Costa Court Clerk. Contra Costa County Superior Court Judge Steven K. Austin, ruled that the Danville Town Council violated part of the Town's General Plan when it rezoned the property and failed to conform to the requirements of Measure S which requires a vote of the people. The Court also found that the E/R was deficient in that it failed to adequately analyze the impact of the added homes on bicyclists' safety along Diablo Road. The judgment set aside the E!R and the Town's approval of the development project, pending resolution of an appeal filed by the Town. The Court Order included an injunction that enjoined the Town, the developer, "and those acting in in concert with them... from issuing any construction or development permits or undertaking any construction activities related to the Town's approval of the project." The Town has appealed the judgment of the Superior Court and that appeal is currently pending before the Appellate Court; a decision is expected within the next six to nine months. (5, 7) fThe District was not notified of and did not receive copies of these document suntil January 9 20151 January 9, 2015 — LAFCO staff received an email from Maryann Cella, SOS - Danville, requesting LAFCO table its upcoming January 14, 2015 consideration of District Annexation 186 on the grounds that the project E/R and the development plan approval are "legally invalid" and an existing injunction prevents LAFCO from "acting in concert" with the defendants. Attached to the email was a copy of the Order re: Petition for Writ of Mandate and a Notice of Entry of Judgment. The email and its attachments were forwarded by LAFCO staff to CCCSD staff. (8) (This was the first time CCCSD staff had received any documents related to the lawsuit. January 14, 2015 — LAFCO opened its District Annexation 186 agenda item and indicated its willingness to open an advertised public hearing, but continue the items to LAFCO's February 11 meeting to allow LAFCO staff time to assess the effect of ongoing, project- related litigation on potential LAFCO actions. Public comments were received. Representatives of SOS - Danville reiterated their arguments against LAFCO proceeding with the annexation and concurred with the one month continuance. While not agreeing with the opponent's position, a representative from SummerHill Homes and the District supported the continuance to allow more time to review the case documents. February 11, 2015 — LAFCO reopened the continued DA 186 agenda item. LAFCO staff suggested continuance of Commission consideration of District Annexation 186 until the Town of Danville's appeal is finally adjudicated, specifically recommending a continuance until the May 2015 meeting. SOS - Danville and District staff concurred with the continuance and the Commission unanimously approved a motion to continue to its May 13, 2015 meeting. N: \ENVRSEC \Position Papers \Leavitt\2015\2- 19 -15 \DA 186 Memo to Board 2- 19- 15.docx 5 Sources (1) Town of Danville website - Magee Ranch Property Residential Development hftp://www.danville.ca.aov/Servic(as/Planni - Services / evelo rnent- Activities /Magee- Ranch- Proiect/ (2) Town of Danville Notice of Determination for Magee Ranch (3) "Danville group files lawsuit over town's approval of SummerHill development," San Jose Mercury News, July 30, 2013 http://www.mercurvnews.com/too-stories/ci 23763237 /dan ille- ro - files- lawsuit- over- towns- aroval -su rnerh ill (4) CCCSD Notice of Determination, DA 186 — Magee Ranch. (5) Letter from the Law Offices of Stuart M. Flashman, January 9, 2015, including Final Judgment, SOS - Danville Group v. Town of Danville, et al. (attached) (6) District annexation application cover letter, dated August 24, 2014, and LAFCO's subsequent Notice of Receipt of Application Materials for LAFCO 14 -05: Reorganization DA 186 (Magee Ranch): Annexations to Central Contra Costa Sanitary District and East Bay Municipal Utility District dated August 18, 2014. (7) Contra Costa Local Agency Formation Commission Executive Officer's Report, LAFCO 14 -05 Reorganization 186 (Magee Ranch), February 11, 2015. (8) Email from Lou Ann Texeira, LAFCO Executive Director, to Russell Leavitt, CCCSD, January 9, 2015. NAENVRSEC \Position Papers\Leavitfl2015\2- 19 -150A 186 Memo to Board 2- 19- 15.docx 6