DANVILLE -- A long-debated housing development proposed for Magee Ranch off Diablo Road was stopped in its tracks after a judge ruled against Danville's Town Council and the developer in portions of a lawsuit brought by the grass roots activist group Save Open Space (SOS) Danville.

In approving the 69-home SummerHill project, Contra Costa County Superior Court Judge Steven K. Austin ruled July 28 that council members violated parts of the town's General Plan and state environmental law when it rezoned the property and failed to analyze the impact of the added homes on bicyclists' safety along Diablo Road.

Stuart Flashman, attorney for SOS Danville, said the ruling would not only prevent the SummerHill development from moving forward for the foreseeable future but would also serve as a notice to developers who wish to "cluster" homes on agricultural land.

"It's a resounding victory," Flashman said. "Unless they can get this reversed on appeal, they'll have to go back to the drawing board."

SummerHill Homes has 60 days to appeal. SummerHill's vice president of development, Wendi Baker, had no comment on the judge's decision or the developer's future plans.

If it stands, the ruling likely means town planners will have to consider a General Plan amendment, potentially requiring a public vote and the project's environmental impact report will need to be reopened to take cyclists' safety into consideration.


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Danville council members unanimously approved the SummerHill project in June 2013, despite a groundswell of opposition from neighbors concerned it would worsen traffic on Diablo and Green Valley roads and threaten the safety of cyclists headed to and from Mount Diablo. SOS Danville filed the lawsuit the following month, naming the town and developer as defendants.

As approved, the SummerHill project calls for the construction of 66 single-family homes on the east side of the Magee Ranch property and three larger lots on the west side off McCauley Road.

Opponents argue the project should've fallen under provisions of Measure S, an open space initiative passed in 2000 requiring a public vote on General Plan amendments that change land uses. However, town officials continue to say the project shouldn't have triggered a vote because the number of homes requested by the developer is under the allowable limits for the land's current zoning.

"Unfortunately, the court got it completely wrong on one aspect," said Danville Mayor Newell Arnerich. He said Magee Ranch has a special designation, untouchable by Measure S, permitting the development.

"We think we upheld the letter of the law and the court has misread what is allowed and what isn't," Arnerich said. "The process was followed exactly the way it was supposed to. The property owner didn't ask for a greater entitlement in this case."

Arnerich said he fears the court ruling will open the doors for the property owner to build something "much more threatening" to open space. Council members, he said, will meet on Aug. 12 to vote on filing an appeal.

"On behalf of the public, we have an obligation to protect open space, and we will go to court to uphold that," Arnerich said. "I hope the council will make the right decision .... We need to make sure we make it right."

SOS Danville spokeswoman Maryann Cella, who has fought the SummerHill development for four years, said the judge's ruling was a win for residents who voted for Measure S.

"The worst aspect of this approval was the blatant manipulation of the General Plan to avoid a vote on it," Cella said. "To have the council take it upon itself to take the vote away from the people is tyrannical behavior. Thank goodness for the courts of law."

Cella said the group has raised "tens of thousands" of dollars from opponents for legal fees, and will continue to "pursue the case vigorously" should an appeal be filed. Flashman said the decision should serve as a learning experience for future Town Council members when considering new development.

"They were listening but weren't hearing what people were saying," Flashman said. "You can't just rely on staff to tell you what to do, you have to make up your own minds."

Contact Jeremy Thomas at 925-847-2184. Follow him at Twitter.com/jet_bang.

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