Blogging Bayport Alameda

January 13, 2016

Ballot battle

Filed under: Alameda — Lauren Do @ 6:03 am

As mentioned by a commenter yesterday one of the interesting things that came out of Googling new City Manager Jill Keimach was uncovering the results of a citizen driven referendum in the town of Moraga.  Here’s the general details cobbled together from news reports.

First article:

Opponents of the Town Center Homes project are asking Moraga officials to revoke an ordinance approved in May spelling out new zoning rules that allow residences on the 3-acre site owned by Russell Bruzzone, Inc. — or put the issue on the ballot.

The land on which developer City Ventures wants to build 36 single-family homes was formerly zoned for professional offices.

“The decision will then basically drive what happens next because if (council members) decide not to (rescind), it goes to a vote of the people,” said town clerk Marty McInturf.

Referendum organizers say the simplest option is for town leaders to repeal the ordinance in its entirety. “That would save everyone concerned the time, effort and expense of a campaign and an election,” said Scott Bowhay, who helped spearhead the referendum drive.

A decision to yank the ordinance would put the town out of compliance with state law requiring zoning be consistent with the general plan and the Moraga Center Specific Plan, which oversees future residential, retail and recreation growth just north of the Moraga shopping center, City Manager Jill Keimach wrote in an e-mail.

A change in zoning would also call into question the project approval, and whether the developers would need to reapply for permits — or file a lawsuit, Keimach said.

The referendum drive follows an unsuccessful challenge by residents of a planning commission decision last year to approve the project. The council’s decision in May to deny the appeal allows up to 12 residential dwelling units per acre at the site.

The TL;dr? City rezones parcel of land to be in line with general plan, residents object and attempt to get a referendum on the ballot to reverse the decision.  Sound familiar? coughcrownbeachcough.

Next article:

The suit filed by property owner Russell J. Bruzzone, Inc. and developer City Ventures demands that the town reject a citizens referendum petition to halt zoning changes that allow the company to build 36 townhomes along Moraga Way.

In addition to challenging any potential reversal of the zoning changes, the suit filed August 19 in Contra Costa Superior Court calls out town clerk Marty McInturf for refusing to reject a referendum petition the developer and property owner say breaks the law.

“The referendum was circulated for voter signatures without the full text of the measure being included in the petition, in violation of the elections code,” attorney Sean Welch wrote in the suit.

City Ventures, for those keeping track, is developing a project near Clement and Oak.

Next piece from the law firm that handled the case for the developer:

Nielsen Merksamer therefore quickly filed suit on behalf of the Town Center Homes Project developer and property owner to block the Council’s anticipated action.  The suit alleged that the referendum was illegal because the petition failed to include the full text of the ordinance in violation of the California Elections Code—including the omission of project-related documents that had been expressly incorporated by reference in the ordinance—and because it sought to enact zoning on the property that would be inconsistent with the underlying Specific Plan and General Plan, in violation of state planning law.  The court ruled in favor of Nielsen Merksamer’s clients on both counts, issuing a writ of mandate prohibiting the Town from the proceeding with the unlawful referendum.

From LaMorinda Weekly:

The parcel is located on an area regulated by the Moraga Center Specific Plan that was adopted in 2010. The town is required by law to modify its zoning ordinance to conform to general plans and specific plans; it had not yet done so for that parcel. The referendum was asking to rescind the ordinance that had been adopted to conform the zoning to the Specific Plan, a strategy that could have stopped the City Ventures’ proposed development, but would have put the town at odds with its legal obligation.

And the last article I can find on the subject:

Moraga Town Manager Jill Keimach said work on the project will not resume until developer City Ventures reimburses the town for legal costs resulting from a court challenge of a referendum petition by residents opposed to the project.

Moraga is seeking repayment of $61,000 in attorney fees resulting from the referendum petition challenge mounted by City Ventures and property owner Russell J. Bruzzone Inc., whose representatives argue staffers should have rejected the petition because it violated the elections code.

According to the conceptual development plan greenlighted last year, the developer must pay court costs and other expenses to defend itself and the town from litigation resulting from project application approvals. City Ventures’ legal team thinks that’s a gray area, Keimach said.

“Their attorneys don’t think the condition of approvals covers it,” Keimach said. “Our attorneys do.”

Despite the sympathy, petitioners disagree with a town statement about the legal costs and are asking it be removed from the city’s website and an online community site.

“The town is still posting on its website and on NextDoor that expenses to the town have exceeded $55,000, inferring that those involved in the referendum have cost the town this money,” Bowhay said. “Indeed, it was the Bruzzones and City Ventures that sued the town, forcing the legal expense.”

Keimach said the online newsletter stated the cost of Moraga’s legal fees, and didn’t assign blame.

“We’re going forward and trying to get reimbursed for the legal fees,” Keimach said. “Everyone had a legitimate reason to do what they did. The referendum petitioners legitimately had a concern and the developer legitimately raised a legal challenge for it.”

Keimach added the town has “every expectation” that it will be reimbursed by the developer.

All in all though based on the statements attributed to Jill Keimach during this incident she seemed to handle it all very professionally and continued to look out for the town’s best interest when it came to reimbursement of legal costs.



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