The City Council will hold a closed session Tuesday, Sep. 15, re the pending lawsuit on the Olivia project, addressing Vice Mayor Wan’s ask for the City to stop defending the case and to agree that the plaintiffs’ allegations are true, irrespective of how inaccurate and legally wrong some of them actually are. Most of the arguments in the plaintiffs’ brief were recycled from the Council appeal hearings, and as such were already explained as lacking merit by City Attorney and other professionals in the two Council hearings.
Similarly to a game of chess, one should anticipate several steps ahead. For Olivia, the potential chess moves, in summary, play out as follows:
1) CEQA DENIAL? If the Council had denied the CEQA categorical environmental review exemption, the developer would have mostly just repackaged CEQA review under a different document, and returned back with the project 6-9 months later. Every knowledgeable CEQA practitioner knows that this project is not going to result in significant and unavoidable CEQA impacts, and thus additional CEQA review is only going to delay the project without changing it.
2) PROJECT DENIAL? If the Council had denied the project approvals, the City would have been sued, the City would have lost and paid for the lawsuit, and the court would have likely ordered the project to be approved.
3) LAWSUIT SETTLEMENT POSSIBILITY? The parties already engaged in mandatory settlement conferences, and none was reached since the lawsuit moved forward to the briefing phase. A typical developer would settle e.g. with a smaller project only if he could be guaranteed that no one would oppose the revised project. A substantially changed project would need to be re-approved by the Planning Commission. If just one person does not want any project or opposes the revised project, there are no guarantees that the revised project would not result in another Council appeal and lawsuit. Why would a developer settle only to be back in the same situation a year later? Recall that in Nov.-Dec. 2015, Jordan held two neighborhood meetings presenting 60- and 44-unit two-story projects — both were rejected by residents. Click for 2015 Pioneer Article.
4) CITY’S DECISION TO NOT DEFEND ITSELF? Regardless of what the City does, the developer will still file his brief and the judge will have the full record and citations to applicable case law and codes. Since the only plausible plaintiffs’ win and developer’s loss is additional work on CEQA (without changes to the project), one would assume that the developer would have already settled during the settlement conferences if he wanted to stop litigation. For the sake of argument, IF the City deciding not to defend itself were to impact the outcome, the developer would most likely choose between moving forward with the project after reworking CEQA review (=different format, no anticipated impacts, additional time and delay), or by switching to scenario 5 (below).
5) 100% AFFORDABLE HOUSING PROJECT? If or when the project turns into a 100% affordable housing project, using SB35 state law that eliminates any CEQA review and City discretionary approval authority, the full credit will go to Vice Mayor Wan and others who have followed his chess moves to that outcome. Whether intentional or not, this is the ultimate chess-mate when the developer in his view has played the game too long.
Fear-mongering? Not at all. This is simply taking a realistic look at what the different outcomes are couple moves ahead. FORESIGHT MATTERS. FISCAL RESPONSIBILITY MATTERS. Every councilmember should have the ability and willingness to govern and review projects based on facts and legal requirements only, and not based on campaign promises or expectations.
Ms. Catalano, thank you for your continued wise analysis of the Olivia Project. Hopefully we can soon put this issue behind us and move forward together as citizens of Clayton.