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RANCHO LAGUNA II APPEAL COMMENTS BY
DAVE TROTTER, MORAGA TOWN COUNCILMEMBER,
AT MAY 26, 2010 TOWN COUNCIL MEETING

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First of all, I want to sincerely thank everyone for their testimony and patience during the long hearing this evening. I’ve read and reviewed all of the staff report materials and your letters, and listened carefully to everything that you have said this evening. That goes for the applicant’s team, the appellants, Town staff and consultants, and members of the public who have taken the time to be here tonight.

THE FACTS AND THE LAW

When this first came before the Council back in October of 2009, I promised to base my decision on the Rancho Laguna II project on the facts and the law. I intend to do that tonight.

As I understand it, there are two principal components that comprise “the law” that need to be kept in mind here:

1.

The first is the Town of Moraga’s General Plan. To approve a proposed development project, it must be “consistent” with the General Plan. A project that is not consistent should be not approved. In this respect, the General Plan functions like the Town’s “constitution” and its terms must be respected and followed.

2.

The second legal aspect is the basic constitutional right of a property owner not to be deprived of all economically viable use of his property. This principle is enshrined in the “takings” clause of both the U.S. and California constitutions.

Now: When you put these legal requirements together, one thing becomes very clear. A “no development” decision on the proposed Rancho Laguna II project is not legally sustainable, nor would it be a proper solution here – unless the Town were to buy the property from the developer, and I just don’t see that happening here.

So where does that leave matters?

I have concluded that the Rancho Laguna project, in one very important respect – its proposal to place 12 homes on the ridgeline – is NOT CONSISTENT with the principles and text of the 2002 Moraga General Plan.

Accordingly, I will be voting to uphold the appeal in part, and to remand the project to the Moraga Planning Commission or to Town staff with specific directions as to how the project can and should be reconfigured so that it can be approved by the Town in the near future

HOW THE PROJECT IS NOT CONSISTENT WITH THE GENERAL PLAN

I believe it is important to start with first principles when analyzing a problem and getting to a sound decision.

Well, “Guiding Principle 1” on page 2-1 of our General Plan gives this direction:

“Preserve the Town’s natural setting and environmental resources, including its undeveloped ridgelines and significant open space areas.”

This is the first principle articulated in our General Plan. And I believe it was set forth first – right out of the box – for a very good reason. This is the prime directive of the Town, and the folks who developed, wrote and approved the General Plan back in 2002.

It was put in first place so that future decision-makers – including Town Councilmembers – would appreciate the importance of preserving our remaining undeveloped ridgelines, and act accordingly when land use proposals come before the Town for decision.
Guiding Principle No. 1 is fleshed out in the Community Design Element of the General Plan, and especially in several provisions in CD1, Natural Setting. These include:

1. CD1.5, which states, “Protect ridgelines from development.”

These words in the General Plan – regarding the need to preserve and protect undeveloped ridgelines from development – have meaning. They simply can’t be ignored. And I firmly believe that one cannot “preserve” or “protect” undeveloped ridgelines by approving a major subdivision that allows homes to be built on this ridgeline. Such an approval would fail to uphold core principles in our General Plan.

2. CD1.1, entitled “Location of New Development,” which states, “To the extent possible, concentrate new development in areas that are least sensitive in terms of environmental and visual resources.”

Is it “possible” to concentrate new development on the Rancho Laguna II property in areas that are less sensitive in terms of their impacts on environmental and visual resources? Absolutely, yes. We can, under the alternative approach I am advocating here.

3.

CD1.3, entitled “View Protection”, which states, “Protect important elements of the natural setting to maintain the Town’s semi-rural character. Give particular attention to viewsheds along the Town’s scenic corridors, protecting ridgelines . . . .”

The Rancho Laguna II project is the first to come before the Town since adoption of the General Plan in 2002 to propose the development of homes on a ridgeline.

This is the first time that the Town Council will interpret and apply the 2002 General Plan to ridgeline development.

But it likely will not be the last.

I would respectfully submit that how the Town Council decides this appeal tonight will set an important precedent. If we approve the proposed ridgeline homes, we will essentially write Guiding Principle 1, and the implementing language in CD1, right out of the General Plan. That would be a sad and horrible precedent that would not keep faith with the General Plan vision, or the people of Moraga. We can, we must do better. We must do the right thing – tonight.

RECONFIGURATION OF THE PROJECT CONSISTENT WITH THE GENERAL PLAN

Here is where I come out on the project in view of the foregoing General Plan consistency analysis:

1. Proposed Lots 7-13 and 23-27 on the ridgeline “B Drive and “B Court” – 12 lots in total – are inconsistent with the Moraga General Plan and so must be eliminated from the project.

Where does that leave the rest of the project?

2. Lots 14-22 on “C Court”: These are the nine lots that are mainly visible from the Bluffs are located off the ridgeline.

Many of my neighbors in town might prefer that these homes never be built. However, based on the administrative record and the language of the General Plan, I have concluded that Lots 14-22 on “C Court” are not inconsistent with the General Plan, and so would vote to deny the appeal insofar as it is directed at these proposed homesites.

3. Lots in the upper valley area (Lots 1-6).

The applicant is currently proposing only six lots in this area.

This is the area of the property where new residential development should occur and be concentrated (see CD1.1). Why? The homes will be located right next to an existing road; few or no impacts on distant viewsheds, no ridgeline impacts, and the terrain is either level or gently sloping having previously been graded.

But previous plans that the applicant submitted to the Town showed as many as 10 homes in this area. And this leads to another important point.

To ensure that any action taken by the Town does not deprive the property owner of economically viable use of his property, I would support the applicant’s 10-lot alternative proposal for development of the upper valley area. This would result in a 19-unit subdivision.

And I also want to be clear that I would be open to a few additional homes being added in the upper valley area, beyond the 10 previously proposed by the applicant, if the appropriate and site-specific geotechnical findings to support such development can be made.

Under this approach, the upper valley buttress fill to fix Rheem Boulevard will be taken care of by the applicant in the course of constructing the homes in this area.

OTHER ASPECTS OF THE PROJECT – A FEW FINAL COMMENTS

1. The Lower Valley Buttress Fill.

Under the development approach I have outlined here, the amount of grading required will be significantly reduced. For one thing, it will not be necessary to grade for any homes on the ridgeline.

The project will not generate enough graded material to fill in the natural, lower creek area or to construct the lower buttress fill along Rheem Boulevard. The lower creek area can remain in its present natural state for the time being – which on balance is a good thing for the Town and the applicant, who will avoid a fight with the resource agencies regarding plans to fill in the creek and destroy the riparian habitat in the proposed lower fill area.

Moreover, this solution will uphold another important tenet of the Town’s General Plan. OS2.2, entitled “Preservation of Riparian Environments,” provides that the Town should “Preserve creeks, streams and other waterways in their natural state whenever possible.” Other provisions of the General Plan also reinforce these vital water quality principles, including OS2.3, “Natural Carrying Capacity,” and OS3.5, “Watercourse Preservation.” The point here is that it is entirely “possible” to redesign this project to avoid these impacts on the natural creek that parallels Rheem Boulevard.

And in these circumstances, it would not be fair to the applicant to require it to undertake the entire cost of importing fill and repairing the lower section of Rheem Boulevard. The Town can require the applicant to pay its “fair share” of the cost of any future repair of the lower section of Rheem Boulevard – perhaps as much as $1 million, according to some of the testimony we’ve heard tonight – but not more than that in my view.

We can also take a harder look at the costs and benefits – including relative environmental impacts – of the various proposed solutions to fix the lower section of Rheem Boulevard, including the proposed tieback solution.

2. Location of the road to serve the nine homes on “C Court.”

Finally, I raise the question of whether it would also be appropriate to rethink the location of any new road to serve the nine new homes on “C Court.”

The applicant has proposed to cross the creek at “A Way”. This is a proposal that will require some grading and other environmental impacts within the creekbed and adjacent riparian vegetation areas.

Moreover, it is virtually certain to encounter resistance from the resource agencies including the San Francisco Regional Water Quality Control Board, if their previous correspondence to the Town (and the experience of the Town and the owner of the Palos Colorados project) are any guide in this case. It should be recalled that the Town basically gave conceptual development approval to that project over a decade ago – but nothing has been built because these state and federal agencies have not issues required permits or proposed plans to mitigate the potential wetlands impacts.

I believe the applicant and the Town should take a hard look at possibly relocating the new road to the existing access road up to the Fayhill reservoir, immediately above the upper valley area where the new homes will be built.

Unlike “A Way,” a road in that upper location would not appear to infringe on any creek or riparian habitat areas. It is already graded, and presumably could be widened and paved at a reasonable overall cost. A relatively narrow extension could then run down the ridgeline to intersect with C Court and serve the new homes there.

Nothing is set in stone here. This is simply an idea that I believe merits further analysis and study – if the Council decides to uphold the appeal in part as I have proposed, and to remand this matter to the Planning Commission or the Town staff for further proceedings consistent with the direction received from the Council.

I want to apologize to everyone for the length of these comments. But this is a very important decision for the future of the Town, and I wanted my thoughts on the subject to be as clear as possible. Thank you for your attention and patience.

Dave Trotter
Moraga Town Councilmember
May 26, 2010