Council begrudgingly approves legal settlement involving El Camino project


This is an expanded version of a previously posted article.

By Renee Batti

Almanac News Editor

They were peeved and frustrated in doing so, but Menlo Park City Council members on July 20 gritted their teeth and unanimously supported a settlement agreement with Concerned Citizens of Menlo Park, a group of anonymous members who in November 2009 sued the city and would-be developers of the property at 1300 El Camino Real on environmental review issues.

The settlement agreement scales back the size of a planned grocery store on the site. The only person to emerge as being a member of the Concerned Citizens group as the settlement was made public two weeks ago is Tony Alexander of San Jose, the political director of the United Food and Commercial Workers Union, which represents employees of grocery stores including Draeger's and Safeway.

Mr. Alexander has not returned numerous phone calls from The Almanac.

The lawsuit, which challenged the city's approval of the environmental impact review for the planned project at the site -- the former home of the now defunct Cadillac dealership -- named the city and the developer: Peter Pau, president of Sand Hill Property Management; and SHP Los Altos LLC.

The original project called for 110,000 square feet of office and retail space, including about 51,000 square feet devoted to a grocery store. The agreement approved by the council and the developer doesn't reduce the size of the overall project, but limits the grocery store size to 32,000 square feet. It also prohibits the "self-checkout of alcohol sales" by any retail business on the site.

The anonymity of the plaintiff was a sore point for council members. But City Attorney Bill McClure said the law protecting citizens' right of association also protects their privacy as members of a group, making the filing of this type of lawsuit by anonymous members of a group legal.

The settlement terms were worked out by the developer and the Concerned Citizens' attorney. Jeff Warmoth of the development firm, who said he didn't know the names of individual plaintiffs during negotiations with the group's lawyer, said the lawsuit had "no basis in fact," but he urged the council to approve the settlement. "It's not something we're happy about," but the company wants to move ahead and build the project, he said.

The plaintiffs agreed not to oppose future housing the company may want to add to the retail development, Mr. Warmoth said.

Councilman John Boyle noted that, given the anonymity of individual plaintiffs, it would be difficult to know whether one of them files another legal action against the developer once a housing plan is brought to the city for approval.

Before voting to approve the agreement, Councilman Heyward Robinson said that, "as distasteful as it may be," approval is the right thing to do.

Mayor Rich Cline said: "I really have a problem with it. ... It sets a real wicked precedent. If I had my druthers, I would get in the ring" and fight the lawsuit. But the developer, he added, "has been up here too many times."

The agreement requires the developer to pay the Concerned Citizens $38,000 in attorney fees and costs. The developer must also pay "for all city costs and fees associated with processing the project and fees related to the lawsuit and settlement," according to the staff report.

The lawsuit was filed using the private attorney general statute, which allows private citizens acting as representatives of the public interest to bring lawsuits against government entities.

It challenged the EIR done for the project on grounds that it failed to evaluate the project's air pollution impacts, and failed to follow required procedures in evaluating the project's traffic, land-use, and greenhouse gas impacts. The settlement agreement did not address these environmental issues.

The law firm representing the Concerned Citizens, Lippe Gaffney Wagner of San Francisco, is a public interest firm "protecting the natural environment and public access to government records," according to its website.

Keith Wagner of the firm wouldn't say how many people belong to the plaintiff group. When asked to comment on Councilman Boyle's concern that an anonymous member of the group could challenge the project again when a housing component is added, he asserted such a challenge wouldn't happen. "Why would they?" he asked.

In 2008, when details of the planned development of the site began emerging, Whole Foods specialty grocery was said to be interested in moving there, which raised concerns by several business owners. Among them was Richard Draeger, whose family owns Draeger's market. When the lawsuit was filed, Mr. Draeger said his store was not involved.

Mr. Warmoth said passers-by may see some action at the site this week. PG&E is scheduled to disconnect utilities, and building demolition should begin soon after, he said.

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Like this comment
Posted by Menlo Voter
a resident of Menlo Park: other
on Jul 26, 2010 at 7:38 pm

Mr. Draeger wouldn't have to be concerned with another market moving into town if they actually provided quality that is equal to their prices. They used to, but not any more. They are now just over priced. When I want the quality (and value) that Draegers used to provide I go to Andronicos. But, that is usually what seems to happen when the kids take over the business from the parents that built it. They get greedy. Draegers quality has been sliding for a number of years. Too bad they would go to the sleazy lengths they obviously did to prevent Whole Foods from coming to town. Can't wait to see what they and Beltramos do against the move-in of Bevmo.

Like this comment
Posted by another view
a resident of Menlo Park: Central Menlo Park
on Jul 27, 2010 at 8:13 am

What has really been missed here is that this council, which has so strongly supported green house gas emission reductions and standards, would settle when the basis of the lawsuit was the project doesn't meet greenhouse gas emission reductions the City so wants.

The supporters of the Green movement, led by Fergusson and Robinson on council, with Gail Slocum leading the charge in the background, have completely left the movement down with this settlement.

Of course, this kind of vote is totally consistent with their support for the Bohannon project. They want the Green Movement supporters to think they have voted for a really Green project, This is simply not the case. How can it be, when the location near 101, demands transportation via autos, which will produce 70% of the pollution.

Just think about all of this...

Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jul 27, 2010 at 10:52 am

Another view states:"Just think about all of this..." when reflecting on the disparate ways that some of the council members vote on different projects. This is called pragmatism - just going with the winds and not having a firm and consistent position on important issues.

Like this comment
Posted by Local shopper
a resident of Menlo Park: Central Menlo Park
on Jul 27, 2010 at 8:53 pm

Do we really need another national chain to further degrade the unique character of menlo park? Go for it voters and don't whine when you can't tell if you are in Menlo Park or any other generic town in the country. And by the way, why pay to be here when any other city will do?

Like this comment
Posted by Just wait
a resident of Menlo Park: Sharon Heights
on Jul 27, 2010 at 9:23 pm

EIR lawsuits are not about the environment. They're just about being another way to get what you want. Just wait until the Downtown Old-Timers Non-Resident Club sues to stop the (lame, watered-down, non-progressive) downtown vision plan.

Like this comment
Posted by Long Time Resident
a resident of Menlo Park: Central Menlo Park
on Jul 28, 2010 at 2:59 pm

Just Wait makes a good point. Environmental concerns are an excuse to stop projects for other reasons. The settlement didn't include any environmental revisions, just a smaller store, no quick alcohol sales and money for the plaintiffs' attorneys.

These lawsuits are frivolous and our general plan sets the stage for them. It was written more than 15 years ago by a no growth coalition headed by Gail Slocum. It needs to be updated to prevent these lawsuits.

Example: Remove level of service traffic standards at the intersections so traffic can't be used as a justification for a suit.

Like this comment
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Jul 28, 2010 at 3:51 pm

Long Time Resident states:"our general plan sets the stage for them. It was written more than 15 years"

A General Plan that is that old does not comply with State Law period.

Here are excerpts from the State guidance on General Plans:
"If the board or council finds itself making frequent
piecemeal amendments, major defects may exist in the
general plan. In these cases, the jurisdiction should consider
a plan update or a major plan revision to address
these issues." Sound familiar?

"the housing element is subject to detailed statutory requirements
regarding its content and must be updated every five
years." When did MP last update the housing element?

"Wells (1989) 209 Cal.App.3d 1005,
exemplifies the type of action a court may take after it
invalidates a general plan. After holding Indian Well’s
general plan invalid for failure to achieve internal consistency
and failure to address various statutorily required
issues in the housing element, the trial court
ordered the city to bring its general plan into compliance
with state law and imposed a moratorium. The
court order prevented the city from granting building
permits and discretionary land use approvals such as
subdivision maps, rezoning, and variances until it updated
its general plan." MP might be tempting some law suits.

"Performing periodic comprehensive reviews
and updates of the general plan can help to identify
internal inconsistencies so that they may be corrected." How true.

“The general plan update process is an opportunity to build community connections by bringing people together to work for a better future. It is also an opportunity to educate community members about their community and build a sense of pride.” Sounds like just what is needed.

"Keep in mind that while an area or community plan may provide greater
detail to policies affecting development in a defined area, adopting one or a series of such plans does not substitute for regular updates to the general plan. Many of the mandatory general plan issues are most effectively addressed on a jurisdiction-wide basis that ties together the policies of the individual area or community plans." Sounds like something worth doing.

Like this comment
Posted by General Plan too Specific?
a resident of Menlo Park: Park Forest
on Jul 28, 2010 at 5:15 pm

It's long been our State Law, and Judicial interpretation of Legislative Intent, as embodied in countless case law decisions.
Just google "Government Code 65302"
Read paragraphs a) and b) slowly and carefully. Note the use of the term "Standards" and "integrated and internally consistent" set of General Plan elements.
Every municipality must adopt Standards, not only for population density and intensity of land use, but standards for a circulation system that is correlated with the land use element.
That is why MP has LOS intersection standards and a roadway classification system.
This is designed to prevent runaway growth that outstrips infrastructure constraints, like overburdened roadways.
Ever tried driving on ECR at Middle at Rush Hour?
Get the picture?
Now move on to our overcrowded local schools and see why additional housing, which generates more auto trips, and overcrowded classrooms
is a net negative for MP.

Like this comment
Posted by GPS2
a resident of Menlo Park: other
on Jul 28, 2010 at 9:24 pm

Now, think about senior housing and a mid level Residence Inn type lodging on the vacant ECR Stanford owned car dealerships
No school impact, limited peak ECR traffic impact since they may drive occasionally in their Prius or Tesla "economy" model, frees up housing for younger folks as seniors vacate their digs in MP.
Ready for more, how's about a Ohlone Tribe casino!
What a Cha Ching!! for MP!
We got eager Granny Keno girls right next door in the senior complex.
What a trip! And they all shop not only at 24 hour Safeway, but can walk to our downtown merchants
What was that thing about "Thinking out of the box"
Sorry, doesn't seem to apply to our current "Visioning" process.

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