HomeMy WebLinkAbout061824-08.1 Levenson Attachment to Communication
June 7, 2024
Via Email
Danville Town Council
c/o David Crompton, Chief of Planning
Danville Town Office
500 La Gonda Way
Danville, CA 94526
dcrompton@danville.ca.gov
Re: Anderson Ranch Single Family Owners Association
Adler Application Dated December 22, 2023
Subdivision Application SD 9673 (Parcel B of SD 6196
Opposition to Adler Appeal/Council Hearing June 18, 2024
Dear Mayor Stepper, Vice Mayor Fong and Danville Town Council:
My office (Law Office of Allan Moore) represents the Anderson Ranch Single Family Owners
Association, a California Nonprofit Mutual Benefit Corporation (“Anderson Ranch HOA” or
“HOA”), with regard to the HOA’s open space property in the Town of Danville (“Town”),
Contra Costa County, identified as Assessor’s Parcel Number (“APN”) 202-100-025 (“HOA
Property”).
The members of the HOA include all property owners within Danville’s Anderson Ranch
development (“Subdivision 6196” or “Anderson Ranch”).
Ido Adler (“Adler”) has purchased the property adjacent to the HOA Property (Parcel B of SD
6196, or “Parcel B”). Adler purchased Parcel B with full knowledge that Parcel B is designated
for “General Open Space” under the Town’s General Plan – however, Adler and Adler’s
attorneys are now attempting to force upon the Town a residential development of 30
residential units on unstable hillside lands.
Such proposed development is of course inconsistent with the Town’s General Plan and
zoning ordinance, and unsafe for the HOA residences and the general public given the
extensive history of landslides on Parcel B and in the area. Further, Adler has not submitted
any access to Parcel B over the HOA Property – much less legal access for a 30-lot
subdivision.
Adler’s attorneys have submitted a letter dated May 24, 2024, incorrectly claiming that Adler’s
Major Subdivision Application is “complete” under provisions of the Permit Streamlining Act –
and further incorrectly claiming that the Town is therefore required to process the 30-lot
subdivision on Open Space lands without access over the HOA Property.
Letter to Town of Danville
June 7, 2024
Page 2
The Town’s Planning Division (Planning Staff), with advice from Town Counsel, has confirmed
by correspondence to Adler that Adler’s position is incorrect under state law.
The Planning Staff has confirmed as follows:
(i) Further identified information is clearly needed to make the Adler
Application “complete” under state law;
(ii) Such identified information, including proof of access, was required
no later than April 19, 2024 under state law; and
(iii) Pursuant to Gov’t Code Sect. 65941.1(d)(2), the failure by Adler to
submit the identified information by April 19, 2024 resulted in
expiration of Adler’s Preliminary Application under state law. (See
Planning Staff letters dated January 19, 2024 and May 16, 2024.)
For reasons set forth herein, the Anderson Ranch HOA believes that Adler has failed to submit
the identified information as required by state law; Adler’s Major Subdivision Application
remains “incomplete” under state law; and Adler’s Preliminary Application has expired under
state law.
Set forth below is (i) a Summary Background; (ii) a brief response to the Adler/CBG letter of
April 17, 2024; and (ii) a brief legal response to the Adler/Attorney Letter of May 24, 2024.
I. Summary Background1
1. On July 11, 2023, Adler submitted a “Preliminary Application” for a residential housing
development project on Parcel B,2 with 20% deed restricted low-income housing (“affordable
housing)” pursuant to the “builder’s remedy” provisions of the Housing Accountability Act at
Gov’t. Code Sect. 65589.5 (“HAA”), and SB 330 (see Gov’t Code Sect. 65941.1(a)).
2. The Town’s General Plan and zoning designations for Parcel B are for General Open
Space and P-1, limiting use of Parcel B to open space uses.
3. The Preliminary Application, citing the HAA at Sect. 65589.5(d)(5), states that the
affordable housing project cannot be denied on the basis that the project is inconsistent with
1 My office submitted a letter to the Town dated January 25, 2024, setting forth a lengthy background and legal analysis of
many of these issues. We request that such letter be made part of the Administrative Record in this matter. This Summary
Background is intended to be a Summary only – and not intended to state all facts on which our opinion is based. Further,
this letter is submitted prior to issuance of a Staff Report for the Council’s June 18, 202 4 hearing. If new issues or facts are
raised in the Staff Report, this letter may be corrected/supplemented prior to or at such hearing.
2 We note that the later-filed Major Subdivision Application referenced below appears to differ from the Preliminary
Application with regard to the number of lots and other specifics.
Letter to Town of Danville
June 7, 2024
Page 3
the Town’s General Plan and zoning designations – given the applicant’s claim the Town had
not adopted a revised housing element in compliance with state law.
4. The Preliminary Application, citing Gov’t Code Sect. 65589.5(o), claims that a housing
development project shall be subject only to the ordinances, policies, and standards adopted
and in effect when a Preliminary Application was submitted.
5. On December 22, 2023, Adler submitted a Major Sub division Application (SD 9673, or
“Major Subdivision Application”) to develop 30 single family homes on Adler’s Parcel B.
6. By letter dated January 19, 2024, the Town responded as follows:
*The Town’s review has determined the application is incomplete,
pursuant to Gov’t Code Sect. 65943.
*Adler’s submitted title report for Parcel B does not show
access/easements to Parcel B for any purpose; and in order to
complete the application, Adler must provide a copy of an existing
easement executed by the owners of the subservient estate.
(Comment #1)
*The tentative map shows slope and maintenance easements on
lands which are not part of the application. (Comment #2)
*The Town requires certain biological studies, a detailed landslide
repair plan, and related studies and information as set forth in
Comments #3 through #8.
7. The Town’s January 19, 2024 response letter further confirmed as follows with regard to
the need for a “complete” application:
Please note that Government Code Section 65941.1(d)(2) requires
[Adler] to submit the specific information needed to complete this
application within 90 days of receiving this written identification of
the necessary information. If the necessary information is not
submitted within this 90-day period, i.e., on or before April 19,
2024, your preliminary application, which was submitted on
July 11, 2023, shall expire, and have no further force and
effect. (Emphasis added.)
8. By letter dated April 17, 2024, Adler through civil engineer CBG submitted a response
letter and attachments (“Adler/CBG Letter”). The Adler/CBG Letter states in part as follows:
Letter to Town of Danville
June 7, 2024
Page 4
The applicant is working with the adjacent property owner through
negotiation and legal requirements to obtain the required
[easement] rights. The applicant requests a condition of approval
stating something to the effect, “applicant shall obtain from the
adjacent property owners all rights required for access,
construction, and public dedications, prior to the approval of the
Final Map, Grading Plans, Improvement Plans or any building
permit.” Applicant recognizes that the application cannot be
deemed complete until the easements are secured and verified
by the Town. (Emphasis added.)
9. The Adler/CBG letter attaches a Lotting Plan, dated December 2023, which appears to
show (i) a “roadway” leading from the Anderson Ranch HOA lands to Parcel B, and (ii) certain
proposed Maintenance Access Easements (MAEs) and Slope Easements (SLEs) over the
Anderson Ranch HOA lands adjacent to Parcel B. Those easements have not been granted –
however they continue to be shown on Adler’s Major Subdivision Application.
10. We understand the Town has received state approval of its Housing Element and that
the Town’s Housing Element is compliant under state law.
11. By letter dated May 16, 2024, the Town Staff confirmed that the
application remains incomplete under Gov’t Code Section 65943. The letter
confirms that the following three issues have not been addressed:
*[The Adler] title report does not show any easements to the
property for any purpose. In addition, you [the Applicant] have
not provided the requested copy of an existing easement
executed by the owner of record of the subservient estate [the
Anderson Ranch HOA].
*The tentative map proposes slope and maintenance easements on
lands which are not part of this application [owned by Anderson
HOA]. The applicant must submit proof of acquisition of these
easements to complete this application. No proof of these
easements has been submitted.
*The Geologic Feasibility Report states the site is located within the
Mount Diablo Thrust Fault. The conclusion in the report states that
the development of the property is feasible from a technical
standpoint but requires extensive landslide repairs and expansive
soil mitigation. As part of your tentative map submitted, a detailed
landslide repair plan is required. In addition, the extent to which
grading related to slide repair and development would impact
jurisdictional wetland areas must be determined. This will require
Letter to Town of Danville
June 7, 2024
Page 5
the preparation of a more comprehensive and detailed soils and
geotechnical report. No additional soils/geotechnical
information was submitted. (Bold type in original.)
12. The Town letter of May 16, 2024 further confirmed as follows, consistent with the
requirements of state law:
Please note that because you did not submit all of the information
needed to complete your application described in the Town’s
January 19, 2024 letter within 90 days after receipt, once the
Town’s determination is final, your preliminary application submitted
on July 11, 2023 shall expire and have not further force or effect
pursuant to Government Code Section 65941.1(d)(2), regardless of
whether you resubmit your application.
II. HOA Response to Adler/CBG Application Letter dated April 17, 2024
As shown herein, we agree with the determination that the Adler/CBG letter of April 17, 2024
and attachments did not submit the required information for the application to be determined
“complete” as required by state law.
The HOA has asked my office to further confirm that the Adler/CBG letter contains significant
inaccuracies regarding Adler’s dealings with the HOA and the lack of access easements,
maintenance access easements and slope easements. Given that the Adler/CBG letter is the
letter on which Adler’s legal claim of a “complete” application is based, the HOA has requested
that these inaccuracies be specifically called out.
As shown in Section I above, the Adler/CBG letter claims as follows:
“The applicant [Adler] is working with the adjacent property owner
through negotiation and legal requirements to obtain the required
rights . . . “ (Adler/CBG Letter at p. 1.)
This statement is false. Adler has not been “working” or “negotiating” with the HOA as claimed
in the Adler/CBG letter. Instead, Adler has filed (but not served) a lawsuit against the HOA
claiming access easement rights through a quiet title and declaratory relief action. (The suit
does not appear to reference maintenance access easement/slope easements.)
Please note that Adler’s filed lawsuit asserts easement rights inconsistent with the access as
shown on Adler’s development applications with the Town.
Adler was aware when Adler purchased Parcel B that such property is (i) designated by the
Town General Plan as open space; and (ii) restricted by the CC&Rs restricting Parcel B to
open space uses. My office, by letter dated October 31, 2023 confirmed to Adler as follows:
Letter to Town of Danville
June 7, 2024
Page 6
*Adler has no easement rights over the HOA Property, either
express or implied;
*The HOA will not grant such rights to Adler;
*Adler acquired Parcel B with full knowledge of its restrictions to
open space and lack of access;
*Adler’s acquisition of Parcel B remains legally subject to the
CC&Rs binding Parcel B - only open space uses are allowed on
Parcel B.
The Adler/CBG letter implies Adler is currently working/negotiating access rights with the HOA,
in an attempt to have the Town believe such access is forthcoming. That is not the case.
III. HOA/Legal Response to Adler/Attorney Letter of May 24, 2024
The Adler/Attorney letter of May 24, 2024 claims that, despite state law to the contrary, (i) the
Adler/CBG letter of April 17, 2024 submits a “complete application,” and (ii) the original July 11,
2023 “Preliminary Application” has therefore not expired.
Respectfully, the Adler/Attorney letter does not accurately set forth the state law and the
specific facts of this matter as set forth herein.
The Adler/Attorney letter states that under Gov’t Code Sections 65940(a) and 65940.1, the
Town must “compile one or more lists that specify in detail the information that will be required
from any applicant for a development project” and must make that information available online.
Further, the letter states that where the Town finds a development application to be
incomplete, it must provide an “exhaustive list” of items that were incomplete – and such items
shall be limited to those items required on the [Town’s] submittal requirement checklist.” (See
Gov’t Code Sect. 65943.)
The Adler/Attorney letter then states that (i) the requirement of an easement for access or
slope maintenance is not on the Town’s list; and (ii) the requirement for specific geologic
information is not on the Town’s list. Both assertions are incorrect.
The Town’s Application Requirements for Subdivision Maps attached as Exhibit 2 to the
Adler/Attorney letter include the following required information:
*A Tentative Map prepared by a registered Civil Engineer, with full-
size plans.
*The name and address of the legal owner and subdivider.
Letter to Town of Danville
June 7, 2024
Page 7
*Widths, location, and identity of all existing easements.
*Location, width and purpose of all easements.
*A soils report prepared in accordance with the Town’s Subdivision
and Grading Ordinance
*If the subdivision lies within a known or suspected geologic hazard
area, a preliminary engineer, geology and/or seismic safety report,
prepared in accordance with the guidelines established by the
Planning and Public works department.
*Any other data or reports deemed necessary by the Planning
Director.
*A Preliminary Title Report
With regard to easements, the Adler/Attorney letter claims that “nothing in the submittal
checklist requires Mr. Adler to have secured or provided copies of access or other
easements.” This is incorrect. The purpose of requiring a Title Report and showing all
easements is so that the Town, prior to processing the application, can confirm that the
applicant owns the necessary rights to the subject property and has access to the site. The
Title Report sets forth the ownership of the property, and all associated easement rights of
record. If the Title Report does not show necessary rights – cities and counties request proof
of such rights from the applicant.
The Town’s checklist requires a title report, and reference to width, location, and purpose of
all easements, including the access easement, and the referenced maintenance and slope
easements shown on Adler’s proposed plans (but not granted). Cities and counties require
evidence of such property, easement, and development rights prior to determining the
application is complete. If the law were otherwise, cities and counties would be required to
process tentative maps for hundreds of units, taking months and years of staff time, without
any evidence that the subject property can ever be developed.
In this case, the Town’s list properly requires the Title Report and evidence/extent of all
easements.
The Town’s January 19, 2024 letter alerts Adler to this issue – and states that the title report
does not show any easements to the property for any purpose (including maintenance
access easements and slope easements).
Please note that in the April 17, 2024 Adler/CBG letter, on which “completeness” is based,
Adler does not object to the Town’s requirement for easements over the Anderson Ranch
Letter to Town of Danville
June 7, 2024
Page 8
HOA Property. Instead, Adler confirms that the Major Subdivision Application cannot be
determined to be complete unless/until the easements are secured and verified by the Town:
Applicant requests a condition of approval stating something to the
effect, “applicant shall obtain from the adjacent property [the
Anderson Ranch HOA] all rights required for access, construction
and public dedications prior the approval of the Final Map.”
Applicant recognizes that the application cannot be deemed
complete until the easements are secured and verified by the
Town. (Emphasis added.)
As set forth above, Adler has confirmed in his April 17, 2024 application letter that the Major
Subdivision Application cannot be determined to be complete under the law unless/until
Adler secures the easements from the Anderson Ranch HOA. Adler’s statements are wholly
inconsistent with Adler’s attorney claims to the effect that the application was/is already
complete.
In closing, we note that Adler, in the Adler/CBG letter, appears to request that the Town
Council approve the Tentative Map, with a “condition of approval” that requires Adler to gain
the easement rights prior to later consideration and approval of a Final Map, or a building
permit.
Such request would be inconsistent with the Subdivision Map Act (see Gov’t Code Sect.
66410 et seq.). The Subdivision Map Act requires specific findings to be made at the time of
approval or denial of the tentative map (see Gov’t Code Sect. 66474). These findings
include a review of the “design” of the subdivision; and a determination of whether the
subdivision is suitable for the type of development proposed, and the proposed density of
development. (See Gov’t Code Sect. 66474(b), (c), (d), (e), (f) and (g)). It would seem very
difficult for the Town to make any such determinations if the Town is not certain of the
location and extent of access and related easement rights for the site and the environmental
impacts of any such easements/locations.
If such a condition were imposed on the tentative map, the Town would be at risk of Adler or
any applicant claiming that the Town must thereafter condemn the Anderson Ranch HOA
property to allow access/maintenance and slope easements.
The Town, in approving Tentative Map without fundamental easements and access as
required for the project, would further risk 30 or more new buyers later complaining that they
do not have legal access to their property.
Stated another way, Adler’s request to defer the questions of access and slope easements to
the final map and building permit stage would be inconsistent with the requirements of the
Subdivision Map Act, and inconsistent with the California Environmental Quality Act (which
requires review of the environmental impacts of the project at the time of approval).
Letter to Town of Danville
June 7, 2024
Page 9
Very truly yours,
Law Office of Allan Moore, A.P.C.
Allan C. Moore
cc: Clients
Robert Ewing, Esq. City Attorney