Saratoga News

The City Council reverses its own policy on going direct to voters

Builder cries foul over Measure G decision

Ballot deadline has passed

By Sarah Lombardo

In a seeming reversal of its implementation policy on Measure G, the Saratoga City Council decided March 4 that plans for an assisted-living center proposed for Quito Road and Highway 85 in Saratoga must go through the city's Planning Department process first.

The 4-1 vote--with Mayor Don Wolfe opposed--to take no action on a resolution calling for an election means that officials for the San Jose-based Barry Swenson Builder will not be able to get the land-use designation change needed for its project put before the voters by June. The builder had requested the resolution. According to deputy city clerk Betsy Cory, resolutions calling for June elections were due at the Santa Clara County Registrar's office by Friday, March 6.

Council policy adopted in May 1996 states that applicants whose proposed projects are deemed subject to Measure G have the option of going through the city planning process, placing a general plan amendment on a ballot first or withdrawing the application altogether. Barry Swenson officials, notified that the assisted living center project is subject to Measure G, chose to go to a ballot.

But councilmembers said they want voters to know details about the project before it goes to a ballot and not only refused to call the election, but also asked staff to agendize a second look at the council's implementation of Measure G for future discussion."I think it's not only in the public's interest, but it's in the developer's interest to go through the planning process first," Councilmember Paul Jacobs said, admitting that the stance was different than what the council thought during the measure's implementation in 1996.

At that time, city staff recommended, and councilmembers agreed, that projects should go straight to a ballot. Under pressure from Measure G supporters, the council eventually voted 3-2 to allow applicants to decide for themselves if their general plan amendments should go through the process or to the ballot first.

Under Measure G, adopted in March 1996, general plan amendments that increase the land-use density or intensity of an area must be put to a public vote. Initial plans for the Swenson project call for the construction of an assisted-living complex that would contain from 80 to 120 units on the 2.6-acre parcel located at 13686 Quito Road and would have from 54,000 to 81,000 square feet. The project would require a land-use designation change from the area's current "residential, medium density" status to "quasi-public."

The city's change in its policy after Swenson's application for an election raises legal and fairness questions, according to Alicia Guerra, an attorney representing the developer.

Echoing a letter she sent to the city, Guerra told the council March 4 that it would be unfair for members to change the rules after Barry Swenson had already followed them.

"We appreciate the City Council's concerns regarding the implementation of Measure G and the appropriate manner for a developer to proceed in submitting a general plan amendment to a vote of the people. However, Measure G and the Measure G Implementation Resolution adopted in May 1996 clearly establish the procedures and process the City Council must follow under Measure G. To deviate from the city's adopted procedures and process within two days of the ballot deadline would unfairly prejudice Swenson's ability to proceed in developing the Quito Road project," Guerra wrote.

According to Guerra, the council's rejection of an election resolution would "deprive Swenson of its rights of due process and equal protection." In addition, Guerra argued that with policy already adopted, the council had no discretion to deny the election, that the residents had no right to vote on the specifics of the project and that Swenson could end up paying a considerable amount of money getting its project approved, only to have it turned down by voters.

But City Attorney Mike Riback said it is the council's right to change policy at any time. "The City Council has the discretion to modify [policy], follow it, not follow--however it chooses," he said.

Vice Mayor Jim Shaw, a strong Measure G supporter before his run for council, said he was sorry if Barry Swenson saw the council's move as unfair.

"If I have to apologize to Barry Swenson, I do," he said, "but I think that the citizens' interests must be considered first and foremost."

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