Miffing the point
Recently, I received a phone call from someone regarding a comment I had made about the Harbor Bay VI project and the idea of swapping land at the golf course to build housing there. The gist of the call was at the “entire Council” and the judicial system had both come to understand that Ron Cowan, and his Harbor Bay Isle Associates (HBIA), have a legal right to build up to 270 houses (which is more than the proposed hundred and seven houses) at Harbor Bay VI or anywhere else he owns land.
The argument goes: since HBIA must be allowed to build his houses at Harbor Bay VI, and everyone knows that the Harbor Bay VI location is terrible, it makes sense to do a land swap in a location that is “better.”
The problem with this argument is that neither the “entire” Council, nor the judicial system believes that HBIA has a legal right to build housing at Harbor Bay VI.
For the time being, let’s just look at the court decision in “Peets vs. The City of Alameda” as this is the case that is being used to justify the idea that the courts have already said that HBIA are allowed to build houses at Harbor Bay VI. The court in fact said exactly the opposite:
The Court finds that the Settlement Agreement does not resume the site, does not amend the General Plan, does not authorize HBIA to proceed with Village Six. It confirms HBIA’s rights under the City’s controlling land-use regulations, subject to the City’s actions in regard to the Application, including public hearings in the Cities exercise of its discretion in reaching a decision on the application.
The public is entitled to present testimony for or against HBIA’s Application for Village Six. The City Council maintains its discretion to weigh in evaluating Application to make a decision as to whether to approve or deny it. The City’s police powers are not constrained.
Further on Page 15:
The Settlement Agreement between city and HBIA grants no approvals for any use, satisfies applicable state and federal requirements, and is consistent with the City Councils lawful exercise of the police powers recognized in the California Constitution.
The City Council, in the future consideration of HBIA’s project, is entitled to consider whether “land-use conflicts” would be created by Village Six, and the public is free to raise those issues in the hearings and in regard to the environmental determinations for those approvals.
The Court finds that the approval of the Settlement Agreement will not result in any physical change, either direct or indirect, to existing environmental conditions. The Settlement Agreement does not authorize HBIA to undertake any activity that would cause any change in the environment. The City Council’s decisions that (1) no approval has been granted, and (2) the Village Six project will be evaluated fully and fairly in the upcoming public hearings and EIR, are supported by substantial evidence, and comply with CEQA. Approval of the Settlement Agreement does not implement or authorizing a project.
What the court said is that the Settlement Agreement between the City and HBIA was valid. This settlement, approved 3 to 2 by the City Council, reaffirmed HBIA’s right to build the original number of houses (up to 3200) that they were entitled to build through a Development Agreement signed in the late 80s. It in no way addresses the issue of where these houses can be built, and in no way it covers the City with having to approve additional housing.
One could easily argue that HBIA many strategic decisions to build homes on large lots its earlier projects, thereby self-limiting the number of households they were able to build in the Harbor Bay Isle project. But that’s a story for a different day.
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