In a lawsuit filed last week in the U.S. District Court, the 88-year-old developer claims the city is trying to kill the project by essentially waiting for him to die. Hohbach is calling for the city to quickly process his original application, to pay him $1.94 million in compensation and to promptly schedule a final hearing on the application before the city's Architectural Review Board.
Hohbach's lawsuit argues that Palo Alto lengthened the approval process for the project by needlessly re-circulating the environmental-review document and forced him to agree to more mitigation measures than are normally required. Palo Alto officials, the claim states, engaged in such conduct for the purpose of "unreasonably delaying final approval of the project" and "eventually destroying Hohbach's ability to complete the project in light of his advanced age."
The lawsuit also argues that the city is forcing Hohbach to build too many units of affordable housing and to comply with zoning requirements that did not exist when he initially applied for the project.
Hohbach is suing Palo Alto despite the fact that the city had narrowly approved the dense project more than three years ago. The City Council voted 5-4 in favor of the project in November 2006, despite protests from city residents about the size and density of the 157,387-square-foot project. The development would include about 50,000 square feet of research-and-development space on the ground floor and 84 apartments on the two floors above it. These would include 17 below-market-rate units.
Council members had previously decided to back the project despite the fact that it is far denser than the city's zoning regulations allow. They supported the application after Hohbach agreed to build more affordable-housing units than are typically required.
But City Council watchdogs Bob Moss and Tom Jordan filed a lawsuit in January 2007, claiming that Palo Alto violated California's environmental laws in approving the project. The state Superior Court upheld most of Palo Alto's actions but faulted the city for not re-circulating the project's environmental-review document to incorporate a comment from the state's Regional Water Quality Control Board.
The court's decision effectively struck down Palo Alto's approval of Hohbach's project and forced him to start over.
Don Larkin, Palo Alto's assistant city attorney, said Hohbach had plenty of options to expedite the approval process, including submitting the project under a different zoning designation — one that would require fewer variances and exceptions. He said Hohbach's age has nothing to do with any of the city's decisions.
Larkin called Hohbach's lawsuit against the city strange given that it was the Superior Court and not Palo Alto that prevented the project from gaining the city's approval. The new suit is basically saying that the city should have fought harder against the court ruling, Larkin said.
"It's somewhat absurd to challenge the city over something the court did, but that's basically what his current lawsuit is doing," Larkin said.
Larkin also disputed Hohbach's argument that the city is demanding too many units of affordable housing. Hohbach had previously agreed to build the additional affordable-housing units in order to get the city's approval for his initial application, Larkin said.
He also noted that the city's zoning regulations had changed since the time of Hohbach's initial application. As a result, Hohbach can no longer obtain the design exceptions he had previously been banking on.
Hohbach had resubmitted the application in September 2008 and had asked the city for several concessions and variances, one of which would allow the project to ignore setback requirements.
Since then, the city and its environmental consultant published another environmental-review document and re-circulated it several times to incorporate concerns from the Regional Water Quality Control Board. According to the suit, a Board employee submitted comments suggesting that the land, once occupied by technology firm HP, could have underground contaminants.
The city's Architectural Review Board reviewed the proposal Dec. 3 but continued the hearing on the project because the environmental review has not yet been completed.
At the board meeting, Moss argued that the city's latest environmental review of the project isn't stringent enough. He argued that Palo Alto should require a full "environmental-impact report (EIR)" before it considers approving the project.
The city's planning staff has instead chosen to require a less rigorous "mitigated negative declaration."
Moss argued that requiring a less-than-comprehensive review for a project of this size would "completely violate" the most recent guidelines from the Environmental Protection Agency. He called the proposed limited review "unacceptable in terms of public health and safety."
Moss also said at the Dec. 3 hearing that if the city doesn't reverse course and demand an environmental-impact report, it would have another court battle on its hands.
"A full EIR shall be prepared or I will sue and take this to court and have the court require a full EIR," Moss told the board. "No ifs, ands or buts. We'll see you in court again."
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