From the beginning, a Tuesday court hearing on a planning
boundary on El Toro Mountain didn
’t look good for a local developer hoping to build homes near
the base of the mountain.
From the beginning, a Tuesday court hearing on a planning boundary on El Toro Mountain didn’t look good for a local developer hoping to build homes near the base of the mountain.
Judge William Kelsay warned developer Howard Vierra and his attorney and development partner, Bruce Tichinin, that he was leaning toward upholding the voter-approved general plan that protected open space above the 500-foot contour line on El Toro, even though the line had been drawn incorrectly when the General Plan was updated in 2001.
Vierra wants to build six homes on 4.5 acres on the lower flanks of the mountain just West of Main Avenue, but city planners denied his proposal because it crosses the open-space boundary on El Toro.
“Convince me,” Kelsay said as the proceedings began.
Though Tichinin tried to do just that, he could not and Kelsay ruled the open-space boundary approved by voters would stand.
“You can’t fight City Hall,” Tichinin said later.
The City Council first learned of the boundary mistake in early 2004, but maintained the boundary under the advice of then City Attorney Helene Leichter.
Vierra and Tichinin sued the city with hopes of forcing it to recognize the boundary as it should have been drawn before voters approved the general plan. Vierra’s housing project would have been allowed under that boundary.
At first the judge said he saw both points of view.
“At best it’s ambiguous,” the judge said. “There is some evidence to support both sides.”
Tichinin argued that the California Supreme Court’s decision in the case of Lesher v City of Walnut Creek ruled that if a boundary is drawn incorrectly, then the correct boundary should be followed.
Kelsay said the Lesher ruling didn’t apply to Vierra’s suit and ruled with the boundary voters passed in 2001 regardless of if it was right or wrong.
“This is a democracy,” Kelsay said. “I won’t say the voters were too dumb to figure out the correct line.”
Kelsay, however, did admit his ruling may be overturned by an appeals court. He also said he thought Vierra should be allowed to build his houses, but the issue in front of court was on whether or not the incorrect boundary should stand.
“An appeals court may say differently,” Kelsay said.
Tichinin said Friday morning that Vierra had not decided whether or not to appeal the case.
“We may not be done yet,” Tichinin said.
McClure hardly had to utter a word since Kelsay discussed the case with Tichinin himself.
Mayor Dennis Kennedy said Wednesday night that he was glad the case was over.
“And I’m happy it turned out the way it did,” Kennedy said.
Colleen Fettig who lives near Vierra’s property said she was relieved the case was over. She and her husband, Gary, had investigated what could be built there before buying their house in 1994 and were surprised by Vierra’s proposal.
“I knew what could happen – and it was zoned for one house,” Fettig said. “I hope this is the end.”
Fettig said neighbors and other Morgan Hill residents had begun to gather signatures for a petition asking the council to leave El Toro as open space.
The Vierra land-use case is behind last summer’s “city hall scandal” where it was discovered that Tichinin had hired a private investigator to follow City Manager Ed Tewes, on an out-of-town business trip. Tichinin hoped to prove that Tewes and Leichter were having an affair and that Leichter advised the city against changing the El Toro boundary because of her relationship with Tewes.
Both Tewes and Leichter have continually denied the affair and Tichinin was never able to prove it. The allegations gained wide attention after the council released an investigative report into the incident last July.
Since the allegations were made public, the city has released Leichter from her position and paid her $273,000 in two settlement agreements. She was given seven weeks vacation and later took almost two months of paid leave.
After the council accused Tichinin of hiring the investigator it sent the case to the Santa Clara County District Attorney’s office and the State Bar Association asking them to take action against the attorney. Both agencies declined to discipline Tichinin, who had always maintained that it is not illegal to keep watch on a government official.
Tichinin has sued the city for $2 million claiming the negative publicity and city’s failure to exonerate him of wrong doing has cost him business.
Vierra has also sued the city for $1.4 million for losses to be incurred from not being able to build his six houses.
So far the issue has cost city more than $400,000 in mounting legal fees, the city’s investigation and Leichter’s settlements.
Carol Holzgrafe covers City Hall for The Times. She can be reached by e-mail at ch********@mo*************.com or phoning (408) 779-4106 Ext. 201.
