MARTINEZ -- A Contra Costa County Superior Court judge said he is leaning in favor of a group suing the town of Danville for allowing a proposed 69-house development without first seeking voter approval.

Judge Steve Austin issued a tentative ruling Tuesday afternoon in favor of SOS-Danville, which filed a lawsuit last year against the town over the planned SummerHill Homes development off Diablo Road. The judgment was made in advance of a hearing Wednesday between both parties in his Martinez courtroom.

In a mixed ruling, the judge said the town improperly changed its general plan to reassign agricultural land at Magee Ranch for residential development.

"And it did so without complying with Measure S by putting the issue to a popular vote, or by the Council voting (at least 4/5) to make the change," which was required, he wrote.

Measure S requires that general plan amendments obtain voter approval.

"It appears that the town interpreted the (general plan) in such a way to essentially circumvent the mandate of Measure S," Austin wrote.

The judgment, if finalized as is, would amount to a victory on the central issue of the lawsuit, said Maryann Cella, a spokeswoman for SOS-Danville.

And it would mean that any residential development of the site would need to be approved by voters -- and that a new environmental report that addresses bike safety effects be drawn up, said Stuart Flashman, an attorney for SOS-Danville.


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Nonetheless, neither side was entirely satisfied with the ruling, which also tackled related issues such as the overall adequacy of the project's environmental report and previous zoning of the area, so they met in Austin's courtroom Wednesday afternoon to hash out the finer points of their arguments hoping to change the judge's mind on his preliminary ruling.

During the hearing, the town's attorneys argued that agricultural and P-1 zoning, which allows for residential development, are both allowed for the site under Danville's general plan, since it was deemed a "special area of concern" in town.

"This isn't an end run around Measure S," said Robert Perlmutter, an attorney representing the town. "It's a vindication that Measure S is working exactly how the (town) council intended it."

He said that as a matter of law, if the general plan in deemed ambiguous or unclear, the court is required to defer to the town's assessment of the general plan, so the judge should rule in favor of the town.

But Austin appeared to side with SOS-Danville's argument that the general plan does not presume that residential zoning is allowed in the area, without first amending the plan via a majority vote of the town.

He maintained that the land use map in the town's 2010 general plan should have been more clearly marked as P-1 -- rather than zoned for agricultural use alone -- if that was what the town council in 1999 truly intended. Then, there would be much less confusion over the plan, and thus no need for court intervention, he said.

But Perlmutter argued that even if the plan "may have not been written well," other pages within the general plan do indicate that the town councilors wanted the site to also be zoned P-1, even if it is not explicitly marked on the map.

"They could have had that vision, but if so, they had pretty cloudy glasses," Austin said. "They could have put P-1 on the map, but didn't."

"Is there a list of all secret areas of zoning (in town)?" he pressed, implying that if that was the council's desire, it was not explicit enough in the general plan.

Also, Austin tentatively struck down the majority of SOS-Danville's claims that the project's environmental report was inadequate. The only section that he granted needed improvement was an assessment on the impact of bike safety on Diablo Road.

Austin also ruled in favor of the town in its petition asking that the final judgment in this case not be applied to future controversies outside of Magee Ranch, such as Elworthy East or Purcell properties, which are among the few Danville parcels remaining for development.

That is because extending the judgment in this case to "unpredictable future events" would essentially be "insufficient and speculative," he wrote.

A final judgment by Austin could be issued in a few days or take months, Cella said.

Contact Joyce Tsai at 925-847-2123. Follow her on Twitter.com/joycetsainews.