The city of Pleasanton now faces a lawsuit -- but not a referendum petition -- in the effort to overturn the City Council's recent approvals that paved the way for a new commercial center near the I-580/I-680 interchange expected to be anchored by Costco, two hotels and other businesses.
Local resident coalition Pleasanton Citizens for Responsible Growth, spearheaded by former City Councilman Matt Sullivan, filed a petition for writ of mandate in Alameda County Superior Court earlier this month challenging the council's environmental clearances that helped advance the city's Johnson Drive Economic Development Zone (JDEDZ) proposal.
Sullivan's group also pursued a referendum petition to reverse council JDEDZ approvals, but the deadline for submitting voter signatures to city officials passed at 5 p.m. Wednesday without the group filing petitions with the city clerk.
"There was significant community opposition to the Costco and we were on a path to acquire the necessary signatures, however, 30 days is a very high bar for a referendum, particularly during the holiday period when so many people are rushed for time or out of town," Sullivan said Wednesday afternoon in conceding the referendum attempt.
"We would like to thank all those citizens who took the time to sign the petition and we regret that your voices will not be heard," added Sullivan, who served on the council from 2004 until being termed out in 2012.
The group now turns its attention to the lawsuit, which argues the city-certified environmental impact report (EIR) was an inadequate analysis that failed to mitigate all significant impacts of the project. They also contend city officials did not adequately respond to public comments on the draft EIR and did not recirculate new information in the final EIR.
"The EIR for this project fails to adequately evaluate all of the project's significant direct, indirect and cumulative impacts, including but not limited to impacts on: air quality, human health, transportation and traffic, utilities and urban decay," wrote the group's attorney, Mark R. Wolfe, of the San Francisco law firm M.R. Wolfe & Associates.
The lawsuit, filed Dec. 1 and served on the city Dec. 7, asks the court to set aside the city's EIR certification and JDEDZ approvals and sign off on an injunction to stop the city from moving forward with the project while the civil case is pending. The citizen group also seeks attorney fees, costs of the suit and "any other relief the court deems necessary and proper."
Pleasanton city attorney Dan Sodergren said the city stands behind the EIR certification and JDEDZ approvals given by the council after "an extensive public review process" and "a robust environmental analysis."
"I believe that all of the issues raised in the lawsuit were more than adequately addressed in the environmental review completed for the JDEDZ," Sodergren told the Weekly. "The city will vigorously defend this lawsuit and will move forward with implementing the JDEDZ."
The two sides are currently scheduled for the first court appearance in the case in February, a case management conference in Oakland before Judge Frank Roesch at 9 a.m. on Valentine's Day.
In the meantime, city officials will work to prepare an administrative record of all documents related to the JDEDZ approval (which generally takes about two months), and then have another 30 days to respond to the suit, according to Sodergren.
Until an injunction is ordered by the court, the city could proceed with implementing the JDEDZ and processing applications for any project, once the rezoning ordinance approved last week takes effect early next month, according to city staff.
The city-initiated JDEDZ proposal details rules for how redevelopment could occur at 12 parcels on Johnson Drive and Commerce Circle near the freeways' interchange, including a nearly 20-acre site left vacant when Clorox closed its research center there. Costco and a hotel developer have stated their intent to build on the former Clorox site now owned by Nearon Enterprises.
Sullivan has been critical of the city's JDEDZ consideration process, questioning the city's road infrastructure financing agreement with Costco and city officials' transparency during the public review in addition to the validity of the JDEDZ's environmental analysis.
That review process formally came to a close on Dec. 5 when the council voted 4-0 -- with Mayor Jerry Thorne recusing himself -- to adopt an ordinance approving a rezoning of the 40-acre site that included strict design guidelines that could help expedite city review of future projects in the marquee area.
Last week's vote followed a 4-0 council decision on Nov. 7 for final approval of the EIR, a General Plan amendment to allow new commercial uses at the site and a resolution declaring their intent to adopt a JDEDZ transportation fee some time down the line.
Sullivan's group began collecting signatures for their referendum in the wake of the November vote, with clock ticking as of Nov. 13 -- when the city clerk certified the documents approved by the council -- to collect names from 10% of registered Pleasanton voters.
"It is a common strategy for cities to time approvals of controversial projects over the holidays to quash citizen referendum efforts," Sullivan said in the wake of his group's failed referendum attempt.
The petition aimed to be Pleasanton's second ballot measure related to the JDEDZ and new Costco. An earlier initiative from the Pleasanton Citizens for Planned Growth -- unaffiliated with Sullivan's group -- sought to limit retail stores in the JDEDZ to no more than 50,000 square feet, but it was defeated at the polls in November 2016, 63% to 37%.
City leaders and many residents pointed to the strong defeat of Measure MM as a sign the Pleasanton community at large supports bringing Costco to town and the JDEDZ concept overall.
But Sullivan and others contend the result of Measure MM could have been much different if residents had known the full scope of the final JDEDZ proposal, including a proposed term sheet with the Costco that includes a 60-40 sales tax sharing deal with the wholesale retail giant to cover a portion of the costs for road improvements needed to accommodate the full JDEDZ.
With their referendum petition effort failing to meet the administrative deadline, Pleasanton Citizens for Responsible Growth are focusing on their legal challenge of the city's environmental analysis.
"Substantial evidence in the record shows the project will have several significant unmitigated environmental effects that the EIR either failed to identify, failed to evaluate adequately or failed to mitigate where feasible," Wolfe wrote in the lawsuit.
In his statement Wednesday, Sullivan honed in on the diesel particulate emissions due to increased big-rig traffic to Costco and other JDEDZ sites. "Evidence in the record shows all this will increase the cancer risk to residents living across from the project," he said.
The council-certified EIR determined the project can establish mitigation measures to reduce the project's impacts on a range of environmental conditions to a less-than-significant level.
But unlike most EIRs set for certification, this one concluded there would be significant and unavoidable impacts in two areas: transportation and air quality. So, the council approved a "statement of overriding considerations" for those two impacts to endorse the EIR.
In the case of transportation, the only reason it is left unmitigated is because the traffic improvements include work on the I-680 ramp at Stoneridge Drive, which requires Caltrans approval and therefore is technically outside of the city's control. Staff anticipates no problems obtaining clearance from Caltrans for the roadwork.
As for air quality, city staff contends the negative impacts are due primarily to the size of the project at 40 acres and the number of car trips expected to be generated.
The analysis found the negative pollutant impacts on the local level are less than significant, but at the regional level, on Bay Area air basin, the impacts are significant and unavoidable.
However city staff argues those levels would occur for any project of JDEDZ size anywhere in the Bay Area, and that is true too for almost all large, high-economic development projects in California, even those that give people the ability to work and shop closer to home.
The lawsuit argues the city advanced the EIR despite objects from the citizen group and others about the air quality and human health impacts of the JDEDZ project.
Pleasanton Citizens for Responsible Growth is identified as an "unincorporated association of residents, citizens, property owners, taxpayers and electors" from Pleasanton, including Sullivan, Leonard Cloutier, Carol Brown and Linda Martin.
The JDEDZ consists of 12 parcels at 7106 to 7315 Johnson Drive and 7035 and 7080 Commerce Circle. Some of the land is vacant while other areas are in use now, with existing land-uses protected by grandfathering provisions.
Mayor Thorne recused himself from the JDEDZ debate after revelations he owned Costco stock in a retirement managed portfolio earlier in the JDEDZ consideration process -- stock he no longer owns.