Haubert and Kumagai Recklessly Resurrect Dublin Housing Project

By: B. Carey-20 year Dublin Resident

Dublin Mayor Haubert and City Council members shouldn't recklessly resurrect the At Dublin Project without first seeking a qualified independent legal opinion and consider the concerns of 1000’s of Dublin residents who spoke against the project.

https://www.change.org/NoToExc...

On June 20, 2020, the Dublin City Council passed a motion denying “with prejudice” the At Dublin Project for up to 566 residential units and up to 240,000 square feet of retail commercial development on approximately 78 acres along Tassajara Road (the “Project”). The decision to deny “with prejudice” was explicitly done after extensive (hours) of debate on both the merits of the projects and the form of denial. The decision was clear and the length of the debate was in part due to the lack of precedence in Dublin or elsewhere of rejecting a development project or any other item “with prejudice” or “without prejudice.” The concept of denial “with prejudice” vs. “without prejudice” is novel and extremely unusual concept only first publicly raised during this meeting and appeared to be an attempt to provide some type of favored treatment to the applicant that has not been afforded others.

On August 13, 2020, the City published the August 18, 2020 City Council agenda that includes a motion to reconsider the decision to deny the At Dublin Project “with prejudice” and, if the motion to reconsider passes, consider a motion to deny the project “without prejudice.” Such proposed actions over 60 days after a clear rejection of the project are unprecedented and unusual. The intended consequences of such a change to “without prejudice” would be to effectively resurrect the project and eliminate the need for the property owner to “start over” including conducting normal environmental studies. Of note, is a new high school has recently been approved for a nearby site and any new environmental study would need to consider the cumulative impact of this project and all previously approved projects including the high school on various matters including traffic along Dublin Boulevard, Central Parkway and other adjacent streets. However, changing to without prejudice would presumably bypass the requirement to consider current conditions but rather would rely on outdated pre-high school traffic studies. This is not consistent with your responsibilities as a steward of the environment.

The Dublin Municipal Code has limited and obscure references to approvals “with prejudice” and “without prejudice” and clearly does not establish standards or procedures under which such decisions could be determined. Additionally, the Municipal Code and Resolution No. 62-17 referenced in the agenda does not specify circumstances under which a denial with prejudice can be changed to a denial without prejudice. That said, there does exist one reference within the Municipal Code specifically, the subsection entitled “Effect of Denial” provides for certain refiling procedures, however this section explicitly only applies to denials “without prejudice” and does not extend to situations such the At Dublin project that was denied “with prejudice.”

A foundational aspect of in the law is the requirement of certainty, and if a denial "with prejudice" could be undone at the will of the council at a subsequent time without explicit legal authority this would undermine the law itself. A denial "with prejudice" means exactly what it says – the Project was rejected. If the City Council did have arbitrary ability to undo a denial “with prejudice” it would create chaos and would undermine the decision-making process.

A change in the vote to “without prejudice” thereby resurrecting the project would create significant financial and reputational risk to the City of Dublin. It is inappropriate for the City Council to approve such a change without fully understanding the legal basis for such a change, the conditions under which such a change could be made, the benefit to the community of such a change, and the risk to the City of Dublin that could arise from such a decision. It is critical that the City Council protect the financial position and reputation of the City. Accordingly, we request the City Council to reject the motion on Tuesday. If the Council wishes to pursue, they should engage a qualified independent law firm to fully assess and report on this matter.