Chico prepares for land-use law suit
Developer Tom Fogarty wants approval to build up to 160 houses on the eastern-most portion of land he owns in eastern Chico. The subdivision is called Oak Valley and Fogarty has been going through the subdivision process for the past 10 years. The process was complicated by the fact that part of the property has contamination from a nearby burn dump.
In March the city’s Planning Commission approved a tentative subdivision map that would allow Fogarty to build up to 160 houses on the eastern-most lot, a final subdivision map of which has never been submitted or approved. Neighbors and environmentalists filed an appeal with the City Council over the commission’s decision.
In September the council denied the appeal but said Fogarty could not build on the easternmost parcel, Lot Q, which, if approved would have allowed houses to be built further up into the foothills than any before.
On Dec. 19 Fogarty’s attorney Douglas Aikins filed a lawsuit, which was served to the council on Dec. 27. City Attorney David Frank says in his opinion the suit was served beyond the 90-day statute of limitations as set by the Subdivision Map Act.
This week the council voted to hire a law firm in response to the suit and use its litigation fund, currently $141,000, until it runs out.
Frank told the council he could not estimate how much fighting the suit will cost the city.
“I don’t know how long this case will go on,” he said. “It depends on the twists and turns of litigation.”
Frank pointed out that there is no Lot Q because there is no map showing street configuration and houses. At this point there is only one 43 acre plot on the 350 acre spread of land with an approved map. The part of the parcel where Lot Q would sit is zoned for minimum density, meaning that with approval, Fogarty could fit a maximum of 160 houses there.
But in September the council voted 4-3 to keep that section of the property free from houses as a way to protect the foothills as prescribed in the city’s General Plan.
The suit says the city “abused its discretion and failed to act in the manner required by law in approving the Oak Valley Subdivision.”
According to the California Environmental Quality Act (CEQA), the suit says, “the public agency shall not reduce the proposed number of units as a mitigation measure if it determines that there is another feasible specific mitigation measure available that will provide a comparable level of mitigation.”
The suit goes on to say, based on a U.S. Supreme Court ruling, the city must establish that the “mitigation measure imposed eliminating all the residential from Lot Q is ‘roughly proportional’ to the adverse aesthetic effects of converting vacant land to an urbanized appearance.”
Using a Vietnam-era metaphor, the suit accuses the city of using twisted logic that says “all housing units on Lot Q must be ‘destroyed in order to save it from ugliness.'”