Terra Linda condo project appealed by critics amid legal battle

A 136-unit condominium complex is planned for 1005 Northgate Drive in the Terra Linda neighborhood of San Rafael. (James Cacciatore/Marin Independent Journal file)

Author: Adrian Rodriguez

Date: July 30th 2019

Published: Marin Independent Journal

A San Rafael condominium project approved last week has drawn two appeals from groups involved in a legal battle with the developer, but city officials are evaluating whether the appeals are valid.

The appeals filed by the Kahn Family Trust and San Rafael Manor Inc., two neighboring property groups, are in protest of the Planning Commission’s decision granting approval of the 136-unit condominium project, dubbed “Northgate Walk” on Northgate Drive.

The appellants argue a planned 30-unit senior housing building that is part of the project is in violation of a declaration of covenants, conditions and restrictions (CC&Rs) attached to the land in 1964 that prohibit the development of apartments. The senior housing building is the only part of the project affected by the CC&Rs.

City officials typically do not weigh in on CC&R disputes between private parties, said Steve Stafford, a senior city planner.

“The city has been advised not to attempt to enforce, interpret or regulate this or any other private covenant, nor consider its ramifications upon the project,” Stafford said.

“The city, however, retains the right to enforce any violation of the private agreement which is not consistent with adopted city land-use policies and regulations,” he said. “The site has been zoned for multifamily residential development since at least 1967.”

Stafford said the city’s attorney’s office is reviewing whether the appeal is valid and warrants a public hearing before the City Council. If a hearing is scheduled, the appeals will be considered concurrently, Stafford said.

San Rafael LLC, the owners and developers of the property, won approval last week to build three four-story complexes standing 36 feet tall on two lots equaling 7.3-acres on a hill next to the Four Points Sheraton Hotel at 1010 Northgate Drive. The project includes 28 below-market-rate units.

The point of contention is a plan to replace the Gateway Gas station site at 1005 Northgate Drive, a property that is restricted by a CC&R, with 30 units of senior housing.

Daniel Kahn is the representative of the Kahn Family Trust, which owns property across the street from the gas station at 1004 Northgate Drive and has legal rights under the CC&R dated May 28, 1964.

Attorneys representing the developer filed a lawsuit last year to gain a court ruling that says the CC&R’s do not prohibit the development of condominiums, which are for-sale units and not rental apartments.

The suit is against the Kahn Family Trust and San Rafael Manor Inc., a nearby housing development on Los Gamos Drive. One party, Professional Investors 42, the owners of an office building at 1050 Northgate Drive, settled and are no longer involved.

On Friday, Joe Breall, an attorney, filed the appeal on behalf of Kahn. Likewise, attorney Janet Everson, filed an appeal Tuesday on behalf of San Rafael Manor.

In an email, Breall said, the city needs to recognize CC&Rs prior to approving a development, otherwise they’re wasting city staff time. He believes it’s the developer’s strategy to influence the court, he said.

“The developer is acting in bad faith,” Breall said. “It should have resolved the land restrictions before ever bringing the project forward. Instead of inviting all stakeholders to the table, it is claiming (that) because the city approved the project the restrictions don’t matter. Unfortunately, this is not the case and land restrictions generally upheld by the courts.”

It’s a baseless appeal, said Riley Hurd, an attorney representing the developer.

“The singular issue raised by the appeal is the applicability of private CC&Rs to which the city is not a party and cannot enforce,” he said.

Hurd cited the city code that states that the applicant or others affected can contest city approval “relevant to the administration of this title.”

“This appeal is in no way ‘relevant to the administration’ of the zoning code, and therefore should be rejected,” per the code, he said. “It would be an incredible waste of municipal resources to process and hear an appeal over which the council does not have authority.”

Attorney David Feingold, Hurd’s colleague who is handling the litigation, said he is confident the court will rule in their favor.

“California law is clear that outdated covenants, which no longer serve a purpose, and which have been ignored for decades, cannot be used to prevent a property owner from developing its land,” he said, “especially when the development will provide much needed housing stock for the community.”

Attorneys expect to be assigned a trial date after going into mediation in October.

More information on the Northgate Walk project is available at cityofsanrafael.org/northgate-walk/.

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