Guest Editorial

Catalano explains why Council approved Olivia project

Guest EditorialAs a Clayton City Council member, I felt the anger and fear the Olivia project caused.

I understand the concerns re: the potential visual impact of a three-story, multi-family apartment structure near downtown. I too have mixed feelings about the use of state law at this location that caused William Jordan to claim a density bonus from 60 to 81 units, necessitating the three-story massing. Due to the state Density Bonus Law, the city could not require more parking – although the final project did include 20 additional spaces (for a total of 106) in response to my request to reconfigure the parking areas and Mayor Julie Pierce’s suggestion to seek additional parking at the AT&T lot.

For the Olivia project, the question became clear: Do you approve a project that abides by the laws that some residents dislike or do you deny a project, triggering significant financial risks to the city’s well-being?

The city’s review ended on March 3, but the process is over only if the decisions are not challenged via litigation. Residents who believe that the council decisions were legally incorrect can pursue legal challenges. If they are right on the law and prevail, the possible outcomes include obtaining project denial and receipt of attorney fees and costs.

To be clear, I am not encouraging anyone or anything. A decision to pursue litigation should be made only after evaluation of the merits of the case and the likelihood of prevailing. As a council member, that is exactly what I did and why I voted “yes.”

Had I factored in opinions or if state laws did not apply to Clayton, the outcome could have been different. But instead I applied laws based on facts. I placed great deference to consultants, staff and our city attorney, who are experienced professionals. I also considered my experience as a land use attorney.

Some residents wanted a “no” vote. However, facts and records did not support such a vote, and the consequences from the city making a mistake in rejecting a project in violation of the Housing Accountability Act and other laws would be dramatic and would surely change Clayton.

If the city were deemed to have denied the project in bad faith, a court could order the project to be approved, award attorneys fees and impose penalties (minimum of $10,000 per unit, up to $50,000 per unit). This could be in excess of $4 million in financial consequences alone.

Regarding the California Environmental Quality Act (CEQA), a “no” vote would have ordered the applicant to do additional environmental review or obtain a different CEQA document, effectively postponing the project decision by six to nine months since nothing in the record showed or suggested that the project would have a significant environmental impact under CEQA.

The three council members (Pierce, CW Wolfe and myself) who voted “yes” protected the city from potentially devastating financial consequences. City leadership has always guarded our limited funds in order to maintain police and other services that residents benefit from on a daily basis. The “yes” votes chose to protect Clayton from litigation that the city would most likely lose.

I repeatedly asked the council members leaning toward a “no” vote to identify proper basis for CEQA or project denial. No substantial evidence (i.e. facts or expert opinion) was provided to support a CEQA challenge. No findings of specific and adverse impact on public health and safety (as defined by the statute) was offered. Without a proper legal basis, the risk of taking a chance on council members’ sole opinions is significant.

Tuija Catalano is member of the Clayton City Council.

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