The site would include 349 homes and a community center. Other
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The city is bracing for possible hardball tactics from a
developer who claims he has a legal right to build affordable
housing in Gilroy.
The city is bracing for possible hardball tactics from a developer who claims he has a legal right to build affordable housing in Gilroy.

As the Cherry Orchard Ranch project makes its way to the Planning Commission, the developer is asking the city to change two land use master plans as well as its policy on residential growth.

The 349-unit affordable senior housing development is being proposed for an active 82-acre cherry orchard on Bolsa Road, southeast of Highway 101.

It has sparked concerns of possible litigation, inadequate emergency response time for the new senior residents and building on prime farming land.

CW Development’s plan is to transport the prefabricated homes to the orchard, which would require cutting down some plants while incorporating others.

The two land use master plans, the city Zoning Ordinance and General Plan, do not allow residential development in the zone east of Highway 101.

Developer Bill Cusack of CW Development has the right to apply for a change in the two documents, said Berliner Cohen attorney Andy Faber, whose firm is contracted by the City of Gilroy.

But even if the documents were changed, Cusack would not be able to build the 349 affordable housing units because the Gilroy’s Residential Development Ordinance only allows for the building of 75 affordable housing units per 10-year cycle.

In response to that, Cusack is also asking to change the RDO.

Cusack’s argument is clear: He says Gilroy has not fulfilled California’s affordable housing requirements and is thus required to take on any affordable housing project that may satisfy them.

“State law says that if a city has an unmet affordable housing allocation and its housing element is out of compliance, they are obligated to approve” Cusack said. “There are state statutes that say that there are limited number of reasons for a city to deny an affordable housing development.”

Cusack has communicated to various city officials that he has a right to develop affordable housing in Gilroy, and some are concerned he will not relinquish that right if the project is not approved.

The Cherry Orchard Ranch will tentatively be considered at a Nov. 4 Planning Commission meeting and will then make its way to the City Council dais, where some councilmembers believe they will be making a decision under the threat of a lawsuit.

“I’ve heard they’re going to sue us. They are going to try to force development in the city and, generally, that’s not a relationship that I want to have,” said Councilman Craig Gartman. “I think it’s very hostile for someone to bring suit against the city.”

Cusack dismissed claims his firm was threatening the city with a lawsuit, saying he is stating his rights to develop and nothing more.

“I don’t even think about (litigation),” Cusack said. “The general population of the city is quite positive about this. The law is the law. There’s no threat. It’s just the law and we’re pointing to it. The statutes are there for anyone to read. Those are just the facts and we’re here to help.”

City Administrator Tom Haglund said he has not seen any documents threatening litigation, but the developer has stated he is entitled to build affordable housing units in Gilroy.

“I’ve dealt with the developer in years past and it is my understanding that they believe they have a right to do this,” he said. “My recollection is that it has something to do with the cities achieving regional affordable housing goals and this developer has a means to achieve this overall goal, and the city is legally obligated to accept that proposal. But that flies in the face of our police power – our power to make our own decisions.”

Gartman does not believe allegations of a lawsuit by the Cherry Orchard Ranch developer are unfounded, and goes a step further saying they are not allegations at all.

“Those aren’t rumors,” said Gartman. “I’ve heard it from a number of different people who are good, reliable sources that that is their plan. What they’re trying to do is a preemptive strike – trying to force a decision that hasn’t been made. It’s a very hostile move by a developer. One I’ve never seen done before.”

Faber said the city has been sued regarding their housing quota in 1998 and 2007, but not by developers.

“The city of Gilroy had its housing (requirement) challenged by low-income advocates, public interest groups, but it was held to be adequate,” Faber said, adding Gilroy won both suits. “The city has never had an inadequate housing element.”

The general plan contains an affordable housing element that the California Housing and Community Development must approve. The quota is further enforced by requirements set by the Association of Bay Area Governments, a state body that regulates housing at a regional level.

The city is now working on another revision of their housing element. According to a state report issued Oct. 5, Gilroy has submitted a draft to CHCD, which is currently under review.

Stan Ketchum, the city planner who has been working on the staff reports for Cherry Orchard Ranch, said he could not preview what the Planning Commission will decide. Among the issues to be considered will be the feasibility of changing the General Plan, he said.

Ketchum said another concern with changing the General Plan deals with emergency response time.

The current General Plan states that emergency services should be close to residential areas for adequate response time, which could pose a problem for Cherry Orchard Ranch.

“The city has a concern that medical service response will be beyond the goal time of four to five minutes,” he said.

Some environmentalists are also concerned the ranch will be built on prime agricultural land, Ketchum said.

According to Ketchum, a developer is required to follow certain mitigation measures when building on agricultural land. The firm can purchase the rights to an agricultural lot of the same size as the one being developed and ban any development on that land.

Cusack is willing to follow the mitigation measures and also contract a private emergency medical service to cater to the residents of Cherry Orchard Ranch. The houses will all have a sprinkler system allaying the fire departments longer response time, he said. Cusack claims the four– to five– minute response time goal has not been achieved in many areas of Gilroy and stressed the need for senior affordable housing.

“The age group that we’re serving is going to increase by 40 percent – as the percentage of the population of the city – and houses available for them there are very limited,” Cusack said. “This is also providing the city with high quality affordable housing.”

Gartman, who is leaving the City Council in November, may not see the project considered at the Council level, but said he would not be swayed by the prospect of a lawsuit when on the dais.

“Just because it’s an affordable project, it doesn’t mean we have to approve it. If we did, then why have a Planning Commission? Or a Planning Department? Or a City Council? If it’s a bad project, it’s a bad project. If it’s a good project, it’s a good project.”

Gartman went on to say he never approves any development that would go against the General Plan.

“I’ve seen some preliminary designs and given feedback. It conflicts with our General Plan. Whenever that has come up (in other projects) my answer has always been that I would not support any development.”

But he acknowledges a lawsuit will be an uncomfortable issue for the city to deal with, costing taxpayers money.

“Here we go again, getting sued for our housing element,” he said.

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