Judge: Danville must rescind 69-home project approval amid bike-safety review

Town won't appeal ruling, working to complete bicycle-impact study for proposed SummerHill Homes development

A Contra Costa County judge last week ruled the town of Danville must rescind its previous approval of a 69-home development on Magee Ranch and reconsider the project after conducting full public analysis of the potential bicycle-safety impacts of the developer's proposal.

The decision by Judge Barry Goode on Thursday came after the First District Court of Appeal last September upheld another local judge's ruling that Danville officials violated state environmental law by failing to adequately investigate whether the SummerHill Homes development would have significant impacts on bicycle safety on Diablo Road.

"We feel very pleased that we are going to get the type of analysis there should be," said attorney Stuart Flashman, who represents Save Open Space-Danville (SOS-Danville) -- the environmental advocacy group that filed suit after the Town Council endorsed the housing project in 2013.

Town officials will not appeal last week's court decision, according to Danville city attorney Rob Ewing.

"The town accepts the ruling and will be moving forward to implement it," Ewing said in an email Monday.

The Town Council will vote to rescind its prior approval of the 69-home development during a yet-unscheduled upcoming meeting, Ewing said. The bicycle-impact study, which is underway, will be released for public review when completed before heading to the council for final consideration, he added.

"Bicyclists' lives are at risk every day in the most dangerous stretch of the Diablo Road corridor," Maryann Cella, SOS-Danville spokesperson, said in a statement Monday. "Yet the Danville Town Council has fought in court ... for the last three years so that the council could ignore bicyclist safety in the SummerHill Homes 'Magee Ranches' environmental impact report."

Thursday's decision, according to Cella, means "the council will finally be required to do an analysis of the impact of the nearly 1,000 more car trips per day from the SummerHill Homes' development on the over 100,000 bicyclists trips that we believe occur in the Diablo Road corridor every year."

SummerHill Homes representatives declined to comment Monday afternoon. The company's project, proposed for the southeast corner of Diablo and McCauley roads, has remained in limbo amid nearly three years of litigation.

County Superior Court Judge Steven K. Austin dealt the first major ruling in July 2014, finding the town violated its general plan when rezoning agricultural Magee Ranch land to planned unit development (P-1) to accommodate the housing project.

Austin's was a mixed ruling, as he also threw out all but one of SOS-Danville's arguments that the town failed to adequately assess specific environmental impacts, siding with the town in all areas except for bicycle safety.

The Town Council appealed, and the appellate court in September reversed the decision on the general plan issue, determining that Danville officials did not violate state planning law in their rezoning of the Magee Ranch site and the move was consistent with the general plan -- the central issue of the lawsuit, according to both sides.

The Court of Appeal did uphold the county judge's finding on bicycle safety, ruling the town failed to adequately address the project's potential impacts on cyclists during its environmental review required by the California Environmental Quality Act (CEQA).

The case returned to Contra Costa court to resolve the bicycle-safety review. It was transferred to Goode after Austin was named Contra Costa County Superior Court's presiding judge, according to Flashman.

The two sides were split on how to proceed.

"The town and SummerHill asked the Superior Court to allow the project approvals to remain in place, rather than rescind them, while we prepare the updated bike study, circulate it for public comment and then bring it back to the Town Council for approval," Ewing said.

SOS-Danville disagreed, arguing the project should be reconsidered as a whole in light of whatever findings are made in the bicycle-impact study and during the public comment period on bike safety.

"It's like the town saying, 'We're going to do a neutral analysis to show there's no impact,'" Flashman said. "It's starting off by saying there are no problems, when it's supposed to start off neutrally."

The judge denied Danville officials' request and ordered the town to rescind its 2013 project approval and initiate a new public approval process.

"We hope that if the council decides to re-approve the development, it will as a condition of approval of the project provide for significantly increased bicyclist safety in the form of safe bicycle lanes," Cella said.

If the project is again approved, town officials will have to go back to court and show they met all requirements under CEQA.

And SOS-Danville will be keeping a close eye, according to Flashman: "We're basically going to be watch-dogging what the town does from here."

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