Home Letter To The Editor MORAGA: Appellants Counter Developer’s Position On Town Center Proposal

MORAGA: Appellants Counter Developer’s Position On Town Center Proposal


Dear Mayor Wykle, Vice Mayor Metcalf, and Councilmembers:

We write to respond to the letter submitted to the Council and Town staff, though not copied to the appellants, by City Ventures (“CV”) and to supplement the record of our appeal. In short, CV’s letter demonstrates, through meritless and superficial arguments, that CV’s development should not be approved.

CV Incorrectly States that the Town Is “Legally Obligated” to Approve Its Proposed Development

The Town is not “legally obligated … under numerous sections of the Planning and Zoning Law” (CV letter at 1) to go forward with any particular plan, as CV contends, nor does it cite to any law that compels a Town Council to approve a development proposal simply because several lower tier agencies have recommended a particular development. To the contrary, the Town Council has a fiduciary duty to protect the interests of the citizens of Moraga – and has no duty whatsoever to bend to the wishes of a company set on maximizing its own profit. It also has a legal duty to enforce the Town’s General Plan when a project is inconsistent with that plan. The Moraga Town Center Specific Plan (“MSCP”) has no force whatsoever in the analysis of a proposed development’s compliance with the language and intent of the General Plan.

Current zoning is part of the Town’s General Plan, which is the guiding document for all of the Town’s “regulations and activities.” (GP at 1-8) Once adopted, the Town’s zoning ordinance must be “consistent with its General Plan”: “Consistency means that the land uses authorized by the Zoning Ordinance, and the distribution of these permitted land uses, must serve to implement the goals and policies of the General Plan.” Id. After adoption of the General Plan, inconsistent regulations were to be “amended to ensure consistency.” Id. The zoning of the particular parcel in question – for commercial development – was never amended in response to the General Plan for a simple reason: the two were consistent.

The General Plan envisioned that zoning would be modified to “[i]ncorporate the land use plans of the Moraga Center and Rheem Park Area Specific Plans, when completed. Until such time that the new Specific Plans are completed, the previous General Plan designations and existing zoning shall apply in the specific plan areas.” GP at 5-7. And, when the MCSP (which we contend is invalid as in conflict with the General Plan) was adopted it did not designate the subject parcel as “residential”; it designated it as “Mixed Office/Residential.” MCSP Fig. 4-2. Thus, even the invalid MCSP did not envision the project proposed by CV. Table 4-5 of the MCSP listed the developments that the MCSP envisioned as “mixed office/residential”: in addition to dwellings and residential care facilities, it calls for personal and professional services, health/fitness facilities, outdoor recreation facilities, religious and school facilities, and fire and police services. CV’s plan does not comport with that direction; to the contrary, the MOFD has clearly explained that CV’s proposal conflicts with fire services (and thus the MCSP).

CV’s suggestion that “Mixed Office/Residential” means one or the other has no basis in law or fact: page 30 of the MCSP describes Mixed Office/Residential and Mixed Retail/Residential as combinations of residential and commercial or retail enterprises. If the MCSP meant what CV claims the label means, then the MCSP would have designated the parcels “Office or Residential.”

To change or modify zoning now, simply in response to CV’s proposed development, without considering how such spot zoning changes would impact the Town’s vision, as expressed in the General Plan, will violate the General Plan. Put another way, the Council cannot undermine the overall scope and vision of the General Plan by changing particular provisions of the General Plan – at least not without an assessment and analysis of how this spot zone change would impact the General Plan and what precedents such a modification would set when other developers (or CV) come back to the Town with proposals to develop other parcels in the Moraga Center. If the Council changes the zoning on this site, will it change the zoning on all of the parcels in the MCSP? What will the Council say if and when CV or another developer insists on zoning modifications for those other parcels next year or the year after, and claims that it is being denied due process or that the Council is acting arbitrarily by declining to change the zoning – or otherwise modifying the General Plan – to suit CV’s desires.

CV contends that the proposed development is consistent with the General Plan because the General Plan “simply points to the 2010 Moraga Center Specific Plan.” (CV at 4) In other words, CV argues that its development is consistent with the General Plan because that plan (a) anticipates the adoption of a specific plan and (b) CV’s development is proposed pursuant to the MCSP. The argument is circular and thus meritless. If the MCSP is inconsistent with the General Plan – and it is, as we explain below – then the MCSP is invalid. Neither the Council nor CV can modify the General Plan with specific plans or zoning modifications made after the adoption of the General Plan that violate, or are inconsistent with the vision of, the General Plan. The General Plan is all of one piece; considered and adopted after much discussion and analysis, it presents an overall plan for the Town. Picking it apart with individual developments that require changes to the Town’s development vision violates the law.

Recognizing the defects in its plan, CV claims that it “conceded to final design changes” (CV at 4) after meeting with planning staff. But those design changes were minimal and fail to ameliorate the significant violations of the General Plan that we have already identified to the Council in our appeal. The development violates the General Plan’s setback requirements, view-shed requirements, traffic guidelines and rules, scenic corridor requirements, building height requirements, natural setting rules, new building scale limitations, consistency with surrounding buildings requirements, and public safety rules.

The MCSP Conflicts with the General Plan

Where a city’s specific plan is inconsistent with its general plan, the specific plan is invalid. See Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 355 [110 Cal.Rptr.2d 579, 587], as modified (Aug. 7, 2001), as modified on denial of reh’g (Sept. 4, 2001) (“The Updated Specific Plan, therefore, is valid only to the extent that it is consistent with the County’s General Plan; i.e., to the extent that it is compatible with the General Plan’s objectives, policies, general land uses and programs.”).

“The general plan is the fundamental source of local land use policy and law, and heads up the hierarchy of government review as the ‘constitution for all future developments.’ … The propriety of virtually any local land use or development decision depends on consistency with the general plan and its elements.” Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311 [145 Cal.Rptr.3d 417, 424] (internal quotes and citation omitted).

In judging whether there are inconsistencies between a general and specific plan, it is critical that the Council keep in mind that the “question is not whether there is a direct conflict between some mandatory provision of a general plan and some aspect of a project, but whether the project is compatible with, and does not frustrate, the general plan’s goals and policies.” Id. at 378. Indeed, there need not be direct conflicts between the MCSP and the General Plan for the MCSP to be declared invalid. “The proper question is whether development of the Project Area under the Updated Specific Plan is compatible with and will not frustrate the General Plan’s goals and policies.” Id. at 379.

In words apt to the situation here – where the MCSP fails to address traffic problems that it will create for Moraga, Lafayette, and Orinda – the court in Napa Citizens explained that planning to fix those problems is not enough: “The County suggests … it should be enough that the Updated Specific Plan recites that the County will work towards improving the roadways and will work with nearby communities to provide suitable housing. … [A]n actual commitment to study a problem and to prepare and implement a plan to mitigate that problem may be a valid mitigation measure. … The Updated Specific Plan, however, makes no binding commitment to do anything to alleviate the impact the Project will have on traffic and housing.” Id. at 380.

Here, the MCSP makes no binding commitment to alleviate the traffic that the MCSP itself, if implemented, will cause. The fact that that Town would need to change zoning to implement the plan alone demonstrates that the MCSP and this plan are inconsistent with long-held views of how the Town should be developed.

The Town staff has conceded that the MCSP is inconsistent with the Town’s Municipal Code (see, e.g., April 20, 2015 Town of Moraga Planning Commission Staff Report, Consider Appointment of Two Planning Commission Representatives at 2: “The purpose of the Moraga Center Specific Plan Implementation project is to … address potential inconsistencies between the Municipal Code and the Specific Plan”). The  General Plan must be considered part of the law of this Town. See Napa Citizens, supra.

Government Code §65860(c) Does Not Require the Council to Modify Zoning

CV argues that the zoning must be modified under Government Code §65860(c), but its very quotation concedes the opposite of its contention: the zoning must conform to the General Plan, not to a specific plan. CV’s entire argument for adoption of its plan hinges on its specious argument that the MCSP is valid and controlling merely because the General Plan envisioned a future specific plan. If the Council had adopted a specific plan that authorized the development of a 20-story apartment building, would that specific plan have been valid? Of course not, but CV’s argument is exactly that any specific plan, regardless of its consistency with the General Plan, controls.

In any event, the CV proposed development is not even consistent with the MCSP. The MCSP does not authorize pure residential development on the proposed site. It called for mixed commercial/residential development on the site – a fact that CV tries to explain away by claiming the phrase means “either or.”

CV cites to Government Code section 65589.5(j) as support for its assertion that the Council cannot reject CV’s proposal. The citation is misleading. Section 65589.5(j) provides that a Town must make specific findings if a proposed development “complies with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete” – language that CV conveniently elides from its letter to you. Even CV concedes that its proposal does not comply with zoning standards and criteria; that is why it wants the zoning change. It also violates the plan for the parcel described in the MCSP. We contend further that the development violates the General Plan as well and in many ways.

The case cited by CV is instructive. In Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, a developer sought to build single family houses on a parcel of land. The town denied approval and contended that it did not have to comply with section 65589.5(j) because the proposed single-family residences would not be connected to the public water system and violated a county ordinance requiring such connections, and was therefore inconsistent with the town’s general plan. The court disagreed, first noting that a county ordinance probably is not a general plan, and then holding that there was nothing in the record to support the conclusion that the project would violated the county ordinance. “Any conclusion by the trial court that the proposed project failed to comply with County Code 20.52.210 is therefore premature and lacks evidentiary support.” Id. at 1080. CV’s contention that Honchariw somehow compels the Council to approve its project reflects a distorted reading of what happened in that case.

Nevertheless, if the Council were to undertake an analysis under section 65589.5(j), it would have to determine two things: whether the proposal would have a “specific, adverse impact upon the public health or safety” and whether there is no feasible way to mitigate or avoid that impact. The analysis would require the Town to finally determine what the traffic impact of this development – along with the other developments anticipated by the MCSP – would have on traffic, pollution, and view-sheds. We have already outlined facts that would demonstrate the adverse impacts on those health and safety concerns; if the Town wants to do more, then we would welcome the opportunity to participate in that analysis.

The Proposed Development is Inconsistent With The MCSP

CV’s planned development violates the spirit of the MCSP. The first paragraph of the MCSP reads as follows: “Lush landscaping, decorative paving, and a gentle curve in the road combine to form a captivating new “Main Street” in the center of Moraga. Welcoming benches, sturdy bicycle racks and attractive window displays draw residents into the commercial core to linger, shop and socialize. Vintage street lamps extend the day as residents embark on an evening stroll or assemble for dinner at a new creekside café. Fresh coffee, warm cookies and icy cold gelato satisfy the cravings of a community enjoying itself. The pace is relaxed. The quality is high and it is all within walking distance, in the heart of Moraga.”

That is not a description of the current development plan – which brings none of these elements to Moraga. Rather, the oversized units crowd walkways out to the bordering streets, which themselves will be crowded as the residents and their visitors vie for on-street parking. Children too will be crowded, with their private outdoor play space limited to “a minimum of 50 square feet with minimum dimension of 5 feet.” Rather than a “community enjoying itself” at the Creekside Café, there will be the occasional nighttime sounds of chainsaws, bullhorns, shouting, and fire engine pumps as the nextdoor fire fighters practice their profession. The pace will be anything but relaxed as residents try to calm their children and get them back to sleep.

As a result of City Venture’s plan, MOFD will be under continuous pressure to scale back or eliminate the training they have been able to do at that location for decades. This would be an imposition and a disservice to all residents of MOFD’s service area.

The MOFD Position Is Valid

We leave to the MOFD a response to CV’s contentions about its position.


We respectfully request that the Council reject the Moraga Town Center Homes project as it is currently proposed.


Scott P. Bowhay, Denise L. Coane, Richard J. Olsen/Moraga


  1. “Vintage street lamps extend the day as residents embark on an evening stroll or assemble for dinner at a new creekside café. Fresh coffee, warm cookies and icy cold gelato satisfy the cravings of a community enjoying itself. The pace is relaxed. The quality is high and it is all within walking distance, in the heart of Moraga.”

    Who wrote this shit?

  2. I agree with the conclusion of the letter. I would also respectfully suggest if you want people to read your point of view, distill it down to a few cogent considerations and leave it at that. This reads like a legal brief or a laundry list of arguments, it was tough to get through.

  3. By the time I finished it the meeting was over but I happen to agree. I can’t imagine putting a residential condo complex next door to a fire district training site. Can’t wait to see the realtor description – “Residents will enjoy the reassuring midnight sounds of sirens and fire hoses as firemen train and are immediately available to respond to household emergencies.”

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