Council places “flawed” Sand Creek “Let Antioch Voters Decide” initiative on November ballot

Will cost city $100,000; could face pre- and post-election legal challenges due to new legislation possibly making the initiative moot and costing city even more.

By Allen Payton

In response to the direction given by a judge in a court case over two initiatives affecting new home development in the Sand Creek Focus Area that the council adopted in 2018, the Antioch City Council voted 5-0 to place the one initiative sponsored by the environmental community on the November 2020 ballot.

That court case resulted in the judge tossing out the council’s adoption of the environmentalist-backed Let Antioch Voters Decide (LAVD) initiative. It also invalidated both the initiative sponsored by Richland Communities, the developer of the 1,100-home project known as The Ranch, as well as their development agreement. In his ruling, the judge also ordered the city council place the LAVD initiative on the ballot. However, the decisions in the lawsuits by adjacent property owners The Zeka Group owners of Zeka Ranch, and the Oak Hill Park Company are still being appealed by the backers of the LAVD initiative. (See related articles here, and here)

According to a previous Herald news report, following a 30-day study by city staff, their report found the initiative limited the total number of housing units to 2,100 in the entire Sand Creek Area. Since the past and current councils had already approved more than 2,300 homes, then no more homes could be built, including the proposed 301-unit, gated senior home community east of Deer Valley Road, known as The Olive Groves on the Albers Ranch property. However, both Seth Adams of Save Mount Diablo and the attorney for Richland said that the intent of each initiative was to only affect property on the west side of Deer Valley Road.

The LAVD initiative will directly impact the proposed Zeka Ranch project (see related article), west of The Ranch project, on the west side of Empire Mine Road, as well as three other properties directly south of Richland property, including Oak Hill’s. Zeka’s proposed number of homes would be reduced from 300 to 400, down to just one home per 80 acres, resulting in just a total of eight homes.

In addition, since the judge’s decisions, new legislation, SB330, was passed by the state legislature and signed into law by Gov. Newsom, last year which prevents cities from downzoning land already zoned residential, either by council action or through the initiative process.

Yet, according to Derek Cole, the city’s contract attorney working on matters dealing with the Sand Creek initiative, “cities have mandatory duties whenever proposed ballot measures receive the signatures necessary to qualify for the ballot.  In this case, because the ‘9212’ report and approval of the initiative are no longer options, the City can only take action to call an election as to the initiative.  City staff is aware of the SB 330 legislation that took effect this year, but as the Staff Report explains, the City Council cannot assume the role of the courts in deciding any legal issues associated with the measure.  The State Supreme Court made very clear in a 2017 decision that the duty to call an election on an initiative is mandatory, even when an initiative’s legality is questioned.”

“The council could adopt an argument against the initiative,” added City Attorney Thomas Smith.

During public comments Joanna Garaventa, with the East Bay Chapter of the California Native Plant Society, spoke in favor of the initiative. She submitted a letter to the council, but when speaking it was difficult to understand her for the purpose of adding her comments to this report.

Andrew Bassak, an attorney with Hanson Bridgett, representing The Zeka Group, opposed the placement of the initiative on the ballot as “it would negatively affect the development that’s been planned for the past 30 years.”

He referred to SB330, the new residential development law.

“The city lacks authority to place the initiative on the ballot…under the California Elections Code. That passed years ago,” Bassak explained. “There is no authority under the stayed Superior Court ruling. That judgement is currently subject to appeal, by one of the proponents of the initiative. Save Mt. Diablo wants to have its cake and eat it, too.”

“The cost of putting it on the ballot will be over $100,000,” he stated. “Placing it on the ballot will result in more litigation” both before…and after the November election. Those litigations could easily double the $100,000 amount. This is just squandering resources that could be spent elsewhere. The city should wait until the court of appeals decision is over.”

Bassak submitted a letter to the mayor and council before the meeting. In it he wrote, “the Initiative is fundamentally flawed and, if placed on the ballot, will be subject to avoidable costly pre-election litigation.” 06-09-20 Zeka Group Attorney Letter to Antioch re LAVD Initiative

Seth Adams, the Land Conservation Director for Save Mt. Diablo, which sponsored the LAVD initiative said, “Please move forward with placing our initiative on the ballot and please formally endorse the initiative.”

“Over 9,000 citizens signed the petition to place the initiative on the ballot,” he continued. “The courts said to place the initiative on the ballot. It did not invalidate the initiative.”

“Our attorneys have provided information to the city that explains why they can place the initiative on the ballot,” Adams added. Emails from Save Mt. Diablo’s attorney to City of Antioch re LAVD Initiative

All the other thirteen public comments were in favor of placing the initiative on the ballot.

Councilwoman Lori Ogorchock then asked about how SB 330 affected the initiative.

“SB330 is legislation…that became effective in January of this year and is retroactive two years,” Smith said. “Under the new regulation any affected city is precluded from adopting policy…of lesser standard. It is preventing the downzoning of land, from residential to something that would not allow development.”

“It is one of the factors that would have to be taken into consideration if the initiative passed,” he continued. “However, at this time, the council can move forward.”

“There may be a pre-election challenge or a post-election challenge,” Smith added. “SB330 could affect it in determining if the initiative is valid.”

“Not only did 9,000 of our citizens sign petitions to place this on the ballot, but the courts directed the council to place it on the ballot,” said Mayor Pro Tem Joy Motts. “I believe it’s an environmentally sensitive, efficient development. So, I am in favor of moving the initiative forward and placing it on the November ballot.”

Ogorchock then moved to place the initiative on the ballot. Councilwoman Monica Wilson seconded the motion.

Smith then asked if the two actions could be separated, with the council deciding if they want to include a ballot argument against the measure.

Ogorchock then shortened her motion to not include a ballot argument.

Thorpe then asked staff to come back with something at a future council meeting, for council to decide whether or not to endorse or oppose the initiative.

However, the council can only submit an argument against the initiative, Smith explained.

Ogorchock and Wilson withdrew their motion and Ogorchock made a new motion and Thorpe seconded it.

“Do we want to make an argument against the initiative?” she asked. Wilson, Thorpe and Motts all said “no”.

“I just need you to make a motion that you do not want to make an argument against the initiative,” Smith explained.

Ogorchock then made a friendly amendment to her own motion that the council will not include an argument against the initiative. Thorpe accepted the amendment to the motion.

That motion passed on a 5-0 vote, that the council will not include a ballot argument against the initiative.

Then Ogorchock returned to her original motion to place the initiative on the November ballot. It was seconded by Wilson and the motion also passed 5-0.

Efforts to reach Seth Adams and city staff to obtain a copy of the letter sent to the City from Save Mt. Diablo’s attorney before the meeting, were unsuccessful prior to publication time. Please check back later for any updates to this report.

the attachments to this post:

Emails from Save Mt. Diablo’s attorney to City of Antioch re LAVD Initiative

06-09-20 Zeka Group Attorney Letter to Antioch re LAVD Initiative

One Comment to “Council places “flawed” Sand Creek “Let Antioch Voters Decide” initiative on November ballot”

  1. […] was reported in news articles and an editorial by the Herald during the 2020 fall election campaign, the state has issued an […]

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