A large housing development rejected earlier this year after facing a referendum petition is now back on the horizon in Dublin following the City Council's approval of an amendment to the project that will bind it to state housing laws rather than the outcomes of negotiations by local officials.
The Dublin City Council voted unanimously this month to approve an amendment to the conditions of approval for a resolution that charted the course for the development of the long-discussed East Ranch housing project under the state's Housing Accountability Act (HAA).
"I'm a little bit disappointed with the way this is happening but I feel that ... for the best use of our land in our city we have to approve this, because the cost of a lawsuit would be tremendous if we did not," Vice Mayor Jean Josey said at the council's May 3 meeting.
The amendment means that instead of the previous plan, in which applicant Trumark Homes was slated to dedicate a parcel of the property to a private developer for affordable housing, Trumark will deed-restrict a number of units under the East Ranch plan and opt to pay in-lieu fees for 40% of the affordable housing units, in compliance with Dublin's inclusionary zoning requirements.
Under these guidelines, the 573-unit development is required to allot for 12.5%, or 72 units for affordable housing -- 40% of which, or 29 total, can be accommodated via an in-lieu payment, which developers Trumark Homes have opted to pay out.
As a result, the fate of Sunflower Hill, a planned affordable housing project aimed at accommodating adults with developmental disabilities, is now uncertain, to the chagrin of council members who had been proud of negotiating with Trumark for the project.
In March, council members warned that Sunflower Hill would likely be a casualty of a referendum brought on by a petition led by the community group Dubliners Against Overdevelopment, and that the applicant would likely bring the item back to the council under the HAA, leading to less discretion and negotiating power from local officials on the project.
"This has taken the discretion out of our hands to be able to have the land dedication for Sunflower Hill, which was a project that was very important to us and is now in jeopardy," Josey said on May 3.
The HAA accommodates projects that meet the bare minimum of compliance with a general plan and specific plan generally must be allowed to go forward, with developers having the right to sue under the act otherwise.
"Under the Housing Accountability Act, the city can only deny a housing project that complies with applicable objective general plan zoning and subdivision standards and criteria if the project would have a specific adverse impact on public health and safety that cannot be mitigated except by disapproving the project," Dublin City Attorney John Bakker said at the May 3 meeting.
Bakker added that city staff were not aware of any such adverse impacts associated with East Ranch plans, giving applicants the right to move forward with the project with even more limited discretion from the council.
The previous rescission passed by the council in March after the referendum petition, which repealed the stage two development plan for the project, combined with the rights of developers under the HAA, means that the second stage isn't required, with the stage one development approved in 2005 being sufficient.
"The city cannot require the property to be rezoned to have a stage two development plan," Bakker said. "The Housing Accountability Act expressly states that projects are consistent with approved zoning standards and criteria and shall not require rezoning if the housing project is consistent with objective general plan standards and criteria but the zoning for the project is inconsistent with the general plan."
"The lack of a stage two development plan makes the zoning inconsistent with the general plan, and therefore a stage two development plan cannot be required under the Housing Accountability Act," Bakker continued.
During the public hearing on the item, Arunabha Chakma, a lead organizer for Dubliners Against Overdevelopment, said that the group understood councilmembers' previous warning that this was how events would unfold, following the passage of the referendum brought on by the petition he'd organized.
However, the group is continuing to push back against the development, with city officials having received a letter from their legal counsel calling the city's reconsideration of the project an effective reenactment of the same item the referendum had rescinded. Chakma and other supporters of the group are also calling for additional environmental review of the project.
"We all live here, including yourself, so we basically wanted to do the right thing for everybody," Chakma said. "But today, only two months later, you are in a sense reenacting the same referendum so that based on the legal opinion we have received from our counsel, you received that letter ... these actions of yours -- according to counselor; I'm not a lawyer -- violates election code section 9241."
Bakker had addressed the letter, saying that the amended project, and lack of significant impacts identified or discovered in the surrounding area, make it exempt under the California Environmental Quality Act. He also noted that without the requirement for a stage two development plan under the amended project, which was the measure repealed by the March referendum, the council's move was not in violation of the election code cited by Chakma and his legal counsel.
However, another member of Dubliners Against Overdevelopment emphasized that the group had a contradictory legal opinion.
"Mr. Bakker always sides on the side of the developers and his interpretation of the laws," Norm Lewandowski said during the public hearing. "We have a full legal firm that's involved in this heavily and they differ drastically from what he's saying. So the only way to really tell what is the right direction is the judge is gonna have to make a decision on this. Just because Mr. Bakker said so doesn't mean it's correct."
Despite legal threats on either side, Bakker advised the council that the HAA gives Trumark significant leverage and limits the choices of local officials.
"One potential outcome is that the applicant, Trumark, would assert their rights under the Housing Accountability Act," Bakker said. "They may bring a lawsuit immediately, they may choose to take some other action, but I'm nearly certain they will assert their rights under the Housing Accountability Act in some way. And eventually it will lead to this project being back in front of you, or you'll maybe get a court order directing you to reconsider the project."
Josey said that while she believed the petitioners were well-intentioned, the referendum process had not played out in the way she suspected some who signed onto it had expected.
"I do believe some of the people that were gathering signatures, and in particular some of the people who were promoting your efforts on social media, did not necessarily understand your intention, felt that their intention was to completely stop homes from being built," Josey said.
"And we know that maybe that was not doable because we anticipated that an HAA project was probably going to come back to us," she added. "And unfortunately what's happened is we've lost the discretion to negotiate the affordable housing package that we felt was better on this particular parcel than what's strictly compliant with our zoning ordinance."
Mayor Melissa Hernandez also expressed frustration with how the project was unfolding in the wake of the previous petition.
"Every single one of you always come forward and say you're not against affordable housing and that you want more affordable housing, but the way we're heading right now, the plan for being able to bring in Sunflower Hill -- this is an affordable housing unit for IDD individuals, you know, for people that when their parents pass away, that their parents know that they have a place to go," Hernandez said.
"And we do have residents just like that here in our city of Dublin," Hernandez continued. "So I keep hearing that you guys are not against affordable housing ... it just leaves me with a sense that you're against all housing."
Councilmember Michael McCorriston said Trumark's move to pay in-lieu fees for the maximum number of units allowed by the city pointed to an issue that should be addressed further down the road.
"The in-lieu of fees, given the fact that they're very important in this city, I just thought it was kind of interesting how the developer said '40% boom, here's your money, let's move on,'" McCorriston said. "We need to seriously look at the percentages and the amounts for in-lieu, and again this is more of an outcome as a result of this next iteration of what we're going through here."
Councilmember Shawn Kumagai emphasized the project's compliance with requirements approved by the council, in its present and past iterations, and the need for affordable housing in the state that the HAA is meant to address, as well as expressing frustration with the referendum process.
"If you're going to continue with litigation on this, you are just going to waste our tax dollars," Kumagai said. "That's all you're going to do, and we're going to get to the same outcome."
"That being said, this is a good project," he added. "Based off our plans objectively, this is a good project. They put a lot of effort into providing a lot of options, a lot of community benefit, and we wanted more. And we asked for more and they delivered more, and now we have to have that rolled back because of this back and forth and these challenges."
Despite the council's hands being tied on the item, Kumagai also highlighted his support for the project, and for the goals of the HAA.
"We have no other choice, but even if we did, I would still approve this project because this is a good project and we need more housing, and that's what the Housing Accountability Act intends to do."
Despite overall frustration and tensions between the council and community organization, Josey said that officials still wanted to hear from their constituents, and emphasized their commitment to addressing community concerns.
"There are things we can do to make projects, even housing projects we can't say no to. We can make them better, and we need resident input in order to do that," Josey said.