COURT HAS RULED – CITY WAS CORRECT IN ITS OLIVIA DECISION.

The Superior Court Judge assigned to the Olivia petition issued his decision on the case this afternoon, denying the petitioners’ petition on all counts.  This means that the decision the City Council made (on a 3-2 vote) in March 2020 was entirely correct. 

This also means that had the City Council followed the lead of those Councilmembers and Commissioners who voted ‘no’ (i.e. Diaz, Wan and Gavidia), the City would have lost and paid significantly in a lawsuit that the developer would have filed.  Not only would the City, which means all of its taxpayers, have paid for the litigation expenses, it would have also exposed itself to potential penalties of up to $4M in this case.  That type of hit on our finances would have been significant, considering our annual general fund budget is only approx. $5.5M. 

My vote on Olivia was not based on my liking or disliking of the project.  My vote also does not mean that I want high density housing in Clayton. I voted ‘yes’ because I believed that to be the only legally accurate decision, based on facts and applicable laws.  The record in this case was clear.  There was no evidence or likelihood that the project would cause a significant and unavoidable impact under CEQA (as that term is defined under CEQA), and thus the denial of the CEQA exemption would merely have been a delay, without changing the project.  Project denial would have been proper only if State law required findings were made, which no one could identify.  Gavidia, Diaz and Wan voted against the project, but even when quizzed to do so, they did not and could not express the required findings for the denial.

Against the advice of our City Attorney and other CEQA experts who were at the Council hearings, Councilmember Wan expressed his own “if you have a horse, I am calling you rural” theory as the basis for determining that an urban in-fill exemption is not appropriate (which the petitioners also cited as part of their petition).  The Court disagreed. 

Diaz is the only one of the 6 Council candidates who voted to approve the rezoning of the Olivia parcels, requiring a min. of 20 units per acre density.  He lacked the foresight to see that someone could propose a Code complying project on those parcels years later consistent with the density he voted to approve, and in 2020 Diaz lacked the ability to listen to experts who told him that there were no findings justifying denial of the project or the CEQA exemption. 

One of the concerns about the project was the number of parking spaces.  I too wanted the project to contain more parking.  The ‘no’ votes (Gavidia, Diaz and Wan) did nothing to make the project a better project.   Contrary to them, I was able to find a way to add additional parking spaces on-site at the first Council hearing based on my review of the site plan, causing the final project to include 106 (vs. original 86 parking spaces) based on revisions the developer submitted for the second Council hearing.

Bottom line, based on the Court’s decision, the City properly issued the CEQA environmental review determination, and there was no justification to deny the project or the state law-based concessions.

Next Tuesday, the choice is yours.  Ask yourself:

1. Do you want Councilmembers who will do what you want them to do, but not what is legally responsible and in the City’s best interest financially and otherwise? 
2. Do you want Councilmembers who are unwilling to listen to legal, CEQA and Planning experts, and instead will substitute the experts’ advice with their own opinions?  
3. OR, instead of (1) and (2) above, Do you want Councilmembers who know when and how to advocate for Clayton, instead of getting the City involved in lawsuits it cannot win?