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HomeMy WebLinkAbout104-02RESOLUTION NO. 104-2002 APPROVING NOTICE INVOKING THE DISPUTE RESOLUTION PROCESS PURSUANT TO THE AGREEMENT TO SETTLE LITIGATION RELATING TO THE DOUGHERTY VALLEY GENERAL PLAN AMENDMENT, SPECIFIC PLAN AND ENVIRONMENTAL IMPACT REPORT WHEREAS, a dispute has arisen between the Town of Danville and the County of Contra Costa ("County") regarding whether the County's approval of the Camino Tassajara Combined General Plan Amendment Study and Related Actions ("Project") on July 9, 2002, violates the Agreement to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan, and Environmental Impact Report dated May 11, 1994 ("Agreement"); now, therefore, be it RESOLVED, that, in accordance with section 5.2 of the Agreement, the Danville Town Council approves the Notice Invoking Dispute Resolution Process Pursuant to Agreement to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan and Environmental Impact Report ("Notice"), attached hereto as Exhibit 1, and directs that the Notice promptly be sent to all Parties to the Agreement. APPROVED by the Danville Town Council at a regular meeting on October 1, 2002, by the following vote: AYES: NOES: None ABSTAINED: None ABSENT: Waldo Arnerich, Doyle, Greenberg, Shimansky v I CE -t~I'A~f~R APPROVED AS TO FORM: CITY ATTORNEY ATTEST: CITY CLERK NOTICE INVOKING DISPUTE RESOLUTION PROCESS PURSUANT TO AGREEMENT TO SETTLE LITIGATION RELATING TO THE DOUGHERTY VALLEY GENERAL PLAN AMENDMENT, SPECIFIC PLAN AND ENVIRONMENTAL IMPACT REPORT The Town of Danville ("Town") hereby provides notice to the parties to the Agreement to Settle Litigation Relating to the Dougherty Valley General Plan Amendment, Specific Plan, and Environmental Impact Report (also known as the "Dougherty Valley Settlement Agreement" or "DVSA') that the Town herebY invokes the DVSA dispute resolution process pursuant to section 5.2 of the DVSA. As set forth below, the Town contends that Contra Costa County ("County") violated the DVSA by approving the Camino Tassajara Combined General Plan Amendment Study and Related Actions ("Project") on July 9, 2002. The Town Council, by majority vote, has authorized this Notice and directed that it be served on all parties to the DVSA. BACKGROUND AND OVERVIEW The Project is a large subdivision of approximately 1400 homes located on unincorporated lands near the Town's eastern boundary. From the outset of the environmental review process for the Project, the Town has repeatedly and consistently expressed its concerns to the County that the Project's traffic impacts would adversely affect the Town and violate the DVSA. The Town has consistently informed the County that, unless the Project is significantly reduced in size and magnitude, it would cause traffic levels at the critical intersection of Camino Tassajara, Crow Canyon Road, and Blackhawk Road ("critical intersection") to exceed a volume to capacity ("V/C") ratio of 0.90, in violation of DVSA section 3.7.3(i). The Town also has repeatedly notified the County that approval of the Project would result in the material deterioration of the level of service at the northbound left-turn lanes Project Traffic Improvement ("PTI") at this intersection, in violation of DVSA section 3.7.3(ii). The County's approval of the Project also violates certain provisions of DVSA section 3.7.4. The DVSA envisions that where one party has a dispute with another party over compliance, the two parties "will first attempt to resolve it through informal discussions." DVSA § 5.2. Over the past two years, the Town has repeatedly attempted to resolve its dispute with the County over the Project's traffic impacts in a variety of forums, including staff-to-staff consultations, comments by Town staff and officials at public hearings, discussions before the Southwest Area Transportation Committee ("SWAT") and the Contra Costa Transportation Authority ("CCTA'), discussions before the Dougherty Valley Oversight Committee ("DVOC'), and formal mediation as Page 1 of 5 directed by the CCTA. Partly as a result of these discussions, both the SWAT and DVOC have issued formal letters finding that the County's approval of the Project would likely exceed the Traffic Service Objectives for the critical intersection established in the DVSA. See March 6, 2002 and June 3, 2002 Letters from SWAT Chair Gayle B. Uilkema and SWAT Vice-Chair Don Tatzin to CCTA Chair Donald P. Freitas; March 21, 2002 Letter from DVOC Chairperson Donna Gerber to Contra Costa County Board of Supervisors. Copies of these letters are attached hereto as Exhibits A through C respectively, and are incorporated herein by reference. In addition, on August 28, 2002, the Town further notified all parties to the DVSA that it desired to resolve this dispute informally. The Town has also met with all other parties to the DVSA to attempt to resolve this dispute informally. The Town's informal efforts to resolve this dispute have proven unsuccessful. Accordingly, the Town is now invoking the DVSA's formal dispute resolution process by providing this notice "setting forth the nature of and basis for the dispute and facts demonstrating that [the Town] is materially and adversely affected thereby." See DVSA § 5.2. I. Nature of and Basis for the Town's Dispute with the County The principal basis for the Town's dispute is that the County has violated the express terms of DVSA section 3.7.3. This section provides that "[a]ny proposal for development that is considered by the County... on land that, as of the Effective Date, is not designated in [the County's] general plan for urbanization or is designated for uses that would result in lower levels of trip generation than would those being proposed, may be approved if and only if it can be demonstrated that such development proposal will not result in (i) exceedence of the Traffic Service Objectives or (ii) any material deterioration in the level of service of any Project Traffic Improvement." (emphasis added). The County also violated DVSA section 3.7.4, which mandates that "the County shall adhere to the policies described in Exhibit D and... take all such actions specified therein." The County violated section 3.7.3 by approving the Project without demonstrating that the Project will not result in: (1) exceedence of the 0.90 V/C ratio that the DVSA establishes as the Traffic Service Objective ("TSO") for the critical intersection (see DVSA § 4.4.1); and (2) material deterioration in the level of service of the northbound left-turn PTI at this intersection (see DVSA, Ex. C-I, ~T C-l.1). Page 2 of 5 The County's approval of the Project is subject to section 3.7.3 because the subject lands were designated for agricultural uses with far lower levels of trip generation than those approved by the County. Thus, the critical question is whether "it can be demonstrated" by the County that the Project will not cause an exceedence of the 0.90 V/C ratio at the critical intersection or the material deterioration of PTI C-I.1. The Town previously has presented the County with extensive evidence documenting that the County has failed to make this required demonstration. Indeed, the overwhelming weight of the evidence demonstrates that the Project plainly will cause an exceedence of the 0.90 V/C. The evidence, including the County's own EIR, also shows that the Project would cause a material deterioration in the level of service for the northbound left turn, by creating infinite queues in the left-turn lanes. With respect to section 3.7.4, the evidence shows that the County violated the agreed upon policy regarding use of traffic assignments for model runs at the critical intersection. DVSA Ex. D, paragraph 6. By manually removing or otherwise reassigning traffic traveling westbound toward this critical intersection, the County violated the policy's prohibition on making "[m]anual reassignment of traffic to other nearby streets [without] approval of the affected jurisdiction," in this case, the Town. The Town intends to submit detailed evidence documenting these violations as part of the formal dispute resolution process or any alternative forum agreed to by all DVSA parties. For the purposes of this Notice, the Town briefly summarizes some of its primary concerns regarding the County's failure to make the demonstration required under the DVSA: Abnormally Low Baseline Traffic Count: The County has arbitrarily selected an abnormally low baseline traffic count for the critical intersection. The County's baseline is significantly lower than any other count for the intersection in the past several years and contradicts the steady upward trend shown in at least seven other counts taken for the intersection between 1996 and late 2001. The selection of this artificially low baseline taints the County's entire traffic analysis because it results in a falsely low estimate of current and future traffic. Inexplicably Low Cumulative 2010 Forecast: The County's forecast for the cumulative growth of traffic at the critical intersection in 2010 (without the Project) is inexplicably low. For instance, the County's EIR projected that the westbound approach during the AM peak hour would increase by 336 vehicles, or approximately 28%, from January 2000 to 2010. Actual traffic counts taken in Page 3 of 5 November 2000, however, show that traffic volumes had already increased by 357 vehicles in just 9 months. By November 2001, actual traffic counts had already increased by 526 vehicles. In other words, the observed traffic increase for the westbound approach in the less than two years between January 2000 and November 2001 is almost 60% larger than the County's estimated traffic for the entire 10-year period from 2000 to 2010. The westbound approach is the critical commute approach during the AM peak hour. Arbitrary Calculation of Project Trip Generation and Distribution: The County has used a number of arbitrary and insupportable assumptions in calculating not only the number of trips that would be generated by the Project, but also the distribution of those trips on area roads. These arbitrary and clearly erroneous assumptions include, among other things, relying on national average trip generation rates that assume 60% of students will be bussed to school despite the fact that less than 2% of all students in the entire San Ramon Valley School District use school bus transportation; unreasonably assuming that n_po trips generated by parents and caregivers dropping children off at the new Elementary School within the Project will ever exit the Project site; and the inexplicable "disappearance" of hundreds of project-generated trips that leave the Project in the direction of the critical intersection but unaccountably do not reach this intersection. Unreasonable Exercise of Engineering Judgment: The County has consistently utilized engineering judgments and assumptions under the applicable traffic model to adjust traffic impacts downward. II. Adverse Effect of County's DVSA Violations on the Town The DVSA violations described above materially and adversely affect the Town. Traffic in the region is a pressing and well-documented concern to the Town and its residents. In entering into the DVSA, the Town sought and achieved the County's agreement not to approve any project that would result in an exceedence of the 0.90 V/C ratio at the critical intersection, which is located within the Town's borders. The Town, in the DVSA, retained the sole and exclusive right to determine whether this intersection could be widened to accommodate proposed mitigation and/or traffic resulting from projects approved by the County. DVSA §§ 3.8.3 & 4.4.3. The DVSA also provided for the financing and execution of the traffic improvements and the additional transportation-related efforts set forth in DVSA Exhibits C & D. In exchange for these and other benefits described in the DVSA, the Town agreed to Page 4 of 5 dismiss .its lawsuit over Dougherty Valley and not to challenge certain levels of Dougherty Valley development. By approving the Project notwithstanding the fact that it would cause the above-described violations, the County has materially and adversely affected the Town's interests in enforcing its own General Plan and in realizing the benefits it bargained for in the DVSA. Moreover, the 0.90 V/C ratio for the critical intersection established in the DVSA is also set forth in the Contra Costa County Growth Management Program, the Growth Management Element of the County's General Plan, and the Tri-Valley Transportation Plan/Action Plan for Routes of Regional Significance. The County's DVSA violations will materially and adversely affect the Town's. interests in the enforcement of these policies. This Notice was approved by the Town Council of the Town of Danville by Resolution No. 104-2002, adopted on October 1, 2002. Page 5 of 5 LIST OF PARTIES TO BE SENT THE NOTICE INVOKING DISPUTE RESOLUTION PROCESS PURSUANT TO AGREEMENT TO SETTLE LITIGATION RELATING TO THE DOUGHERTY VALLEY GENERAL PLAN AMENDMENT, SPECIFIC PLAN, AND ENVIRONMENTAL IMPACT REPORT City Manager Director of Planning City of San Ramon City Hall 2222 Camino Ramon San Ramon, CA 94583 City Attorney Office of the City Attorney City of San Ramon City Hall 2222 Camino Ramon P. O. Box 5148 San Ramon, CA 94583 Director, Growth Management and Economic Development Agency Director, Department of Community Development Contra Costa County 651 Pine Street Martinez, CA 94553-0006 County Counsel Office of County Counsel Contra Costa County 651 Pine Street P. O. Box 69 County Administration Building Martinez, CA 94553-0116 Windemere BLC Land Company, LLC c/o Pete Petersen Lennar Communities 3130 Crow Canyon Place, Suite 310 San Ramon, CA 94583 R. Clark Morrison Andrew Sabey Morrison & Foerster 101 Ygnacio Valley Road, Suite 450 Walnut Creek, CA 94596 Mr. Daniel W. Hancock Shapell Industries, Inc. 100 N. Milpitas Boulevard Milpitas, CA 95035 Daniel J. Curtin, Jr., Esq. Stephen L. Kostka, Esq. M. Thomas Jacobson, Esq. Cecily Talbert, Esq. Bingham McCutchen LLP 1331 N. California Boulevard, 5th Floor P. O. Box V Walnut Creek, CA 94596 . 1. SWAT Danville . Lafayette . MOl'aga . Orinda . San Ramon & the County of Contra Costa March 6, 2002 Donald P. Freitas, Chair Contra Costa Transportation Authority 100 Gregory Lane Pleasant Hill, CA 94523 Dear Chair Freitas: This communication is aresponse to the December 20, 2001 letter from Robert K. McCleary to Supervisor Gayle B. Uilkema;Chair of the Southwest Area Transportation (SWAT) Committee. ill this letter, Mr. McCleary was responding to a request for advice on how to respond to potential growth management compliance issues raised by staff of the Town of Danville in response to the County's Camino Tassajara Combined General Plan Amendment Study. .. On Mr. McCleary's advice, the SWAT Committee has reviewed the projected impact ofthe proposed ) General Plan Amendment on the ability of SWAT jurisdictions to a.chieve the traffic service objectives , (TSOs) adopted by the CCT A for routes of regional significance in the affected area and have unanimously established the following fmdings: . The SWAT members concurred that they do not wish any of the adopted TSOs in the Tri-Valley Action Plan to be exceeded; . Based upon SWAT's review of the Camino Tassaj ara GP A, it appears that there is no room for error in the calculation of level of service; . . Given the level of accuracy in the Tri- Valley model, the margin by which the TSO is met at the so-called critical intersection ofCainino Tassajara and Crow Canyon Road is too small; . Therefore, if the project is approved as proposed [the Full-Range of Mfordable Housing/Senior Housing (FRAHSH) alternative ], SWAT determined that it is likely that the TSO of LOS D at the intersection of Camino Tassajara and Crow Canyon Road could be violated in 2010. In addition, the SWAT Committee moved to continue the discussion of good faith to their April meeting and request that the CCT A direct the involved parties to begin the Conflict Resolution process under Measure C. Sincerely, ;b~~ Don Tatzin; Vice-Chair Southwest Area Transportation Committee Gayle B. Uilkema, Chair Southwest Area Transportation Committee ce: Members. SWAT A:\ccta em tass rvw final.doc . j SWAT . - . Danyille' Lafayette . Morilga . Orinda . SanRamon & the County of Contra Costa . ,\1,\, . June 3,,~W02 DonaldI'. Freitas, Chair Contra Co~taTransportation Authority lOOGr~g()ryLane . . PleitsantHHl, CA 94523 Dear Chair Freitas: . . . The memb~rs of SWAT are concerned that the import of their decision ()f March 4, .2002, as to the Camino Tassajara COlnbinedGeneral Plan Amendment (Camillo Tassajara/Crow Canyon Intersection) is being ". .... fuiscolis~roe(lby~CT A and tile (:ounty Commul1ity ])evel9pment PepartJl)ent.. Specific'.IJY~recent letters from both-entities characterize the decision as. either advice or aViewpoint~ . . .' '. . :: In the~e.tter by Dennis. Barry of t~e County Community Development.Department to theCCT Aof Mar'Ch.6,. ..' .'" .2002, he. te,ferred to SWAT's d~cisiQnas "advice." Dona.ld F:teitas of CCT A in hislettet to Mr. . Barry, dat~.. . March20? 2002, characterizes the SWAT deCision as a "conflicting vIew." . . . -"he members of SWAT wish to infonnCCTA and the COllnty.Community Development Departtneht that ". ()WATrendereda d~c~~;]on aftert~o lengthy, quasj~judjdalhearings, whichincludedthee~tensive review of a. .. 'largenll,mberOfexhlblts byb()thsl?~S. . ....,. '. . .... ....,............ . . The pi'jrriary finding ofSWAT~ as noted in the . SWAT letter signed by Chair Uilkem~land ;Vic::eChairT~t.zin to . Mr. Freitas ~f March 6,2002, is that, inour opinion, If the project FRA-SH isappr()yed,afis, ilis I1k<cly to .'. e:lt~dtheTSOs.' .. . . . SW A T'~ decision was. based. on. sev~ral. factual findings tbat~ere reached ona consensual, pasisduring the 'March4th hearing, which are SUmm~zedas follows: .'. '. . . . . '. . '. . . . .' . 1. Recent studies indicate ~ signiflcanfincrease in traffic volume; . '. 2. . the traffic model did not analyze these recent stud.ies. .'. . . ; . '. '.' ..... ..' '" 3. The as:sumption that w~stb()'ti11d traffic would decrease over eIght years was likely n)be inc.6rrect ctinsideringthe recent studies. . ..... . ..... .' '. . . ,4. Thirewas . an admitted discrepancy in westbound traftic:frt the eastem intersectioJ1~~9f: 1:41 vehicles that . lteederlto be resolved.. .(See'SWAT Minutes, .March4,PiOd.~,page 22.) .... . ThankY6u for your consideration,' Sincer~ly, g'. . .' '. .' ....... . ..' 'L-. :. . . . .. _\ ....,.. _'. ", .0- j ~~'.. pon'rat,iill, Vice-Chair . .soutilwest.Ar.ea Tran'Sportationcbwmittee . . GayleB. Uilkema, Chair . . .~Pl1thwest Ar'Ca TranspCin~tJ6nComniittee cc::MeiTibiJ:S; SWAT . . . . <>;\trari$portation\swaCadmin\01'{)2\Outgoln!i:.~qrTilTl\t!ctIU:m3ass_rvw.:..spplmntJy.I.;doo.. . . ( 925335-1360 March 21, 2002 Voting Members Supervisor Gerber, District In SupervisQr Dc Sault/ier, District IV ' Dick Waldo, Mayor '['own ofD(lIrville ' Millie Greenberg, Coullcil Member '['own of Danville Nancy Tatarka, M<l}vr City afSan Ramon Jerry Cambra, Council Member City of San Ramon Non Voting Members Dan C.Q/eman, ShapellIndUSlries Pete Petersen, Lennar Communities DOUGHERTY VALLEY OVE/fSIGHT COMMITTEE Contra Costa County Board of Supervisors 11780 San Pablo Avenue, Suite D El Cerrito, CA 94805 Dear Chair Gioia, On March 4, 2002, the Southwest Area Transportation Committee (SWAT) referred an issue ()n the proposed Camino Tassajara Combined General Plan Amendment to the Dougherty Valley Oversight Committee (DVOC). They made this referral because DVOC is responsible for insuring compliance with the Dougherty Valley Settlement Agreement. The issue they referred was if the proposed General Plan Amendment is approved as is, would the Dougherty Valley Settlement Agreement (DVSA) be violated? At the DVOC meeting of March 20, 2002, DVOC lc;~sidered this issue and adopted a motion with the following conclusion based upon ih; information that they had available to them at the meeting. The motion was: "The Dougherty Valley Over~.{ght Committee (D VOC) wishes to advise the Board of Supervisors that if the Full Range of Affordable Housing-Senior Housing (FRAHSH) project is approved as proposed, the Traffic Service Objectives as defined in the Dougherty Valley Settlement Agreement would be violated. It would also result in the material deterioration of the northbound left Project Traffic Improvement. Therefore, the D VSA would be violated. . DVOC bases this upon thefacts that: 1. The lowest available baseline traffic count was used in the analysis and more recent movement baseline counts have changed significantly; 2. Cumulative forecast critical movements for 2010 are lower than existing movements; 3. Because of the underlying assumptions, there is no assurance the proposed mitigations will in fact mitigate the impacts. " &~ Chairperson of DVOC Cc: Members, Board of Supervisors Dennis M. Barry, AICP Bob McCleary, CCT A SWAT Committee Dick Waldo, Mayor, Town of Danville Nancy Tatarka, Mayor, City of San Ramon Chris Truebridge, Shapell In~sties Pete Peterson, Lennar CommUnities \