Seeno’s attorneys request new trial following Save Mount Diablo legal victory against Faria project in Pittsburg hills
The Pittsburg hills where the Faria project has been approved for construction, as seen from the San Marco neighborhood in Pittsburg. Photo: Scott Hein
607-acre, 1,650-home development next to planned Thurgood Marshall Regional Park – SMD leader says motion for new trial “should be denied”
Last Friday, Feb. 25, 2022, attorneys representing Discovery Builders and their Faria new home development requested a new trial for the lawsuit by Save Mount Diablo, following a judge’s decision in favor of the environmental group to stop the project. As previously reported, on March 30, 2021, Save Mount Diablo filed a lawsuit challenging the City of Pittsburg’s approval of the 1,650-unit Faria project, on the ridgeline between Pittsburg and Concord. According to the agenda item documents, the master plan overlay district encompasses approximately 607 acres of land. (See related article)
The motion for a new trial was filed “on the basis that the Court’s decision is not supported by the evidence and controlling legal authorities. Specifically…that there were several portions of this Court’s February 10, 2022, Statement of Decision that may not have fully considered evidence in the administrative record.” In addition, the motion asks that the “Court vacate its Statement of Decision and enter a new decision denying SMD’s motion” and “conduct a new hearing”. Faria project Motion for New TrialParsons Dec. ISO Mot for New TrialRaskin Dec. ISO Mot for New TrialFaria project new trial Proof of Service
A hearing date on the motion for a new trial has been set for April 14, 2022.
The now named Thurgood Marshall Regional Park is directly adjacent to the Pittsburg City Council approved Faria project. Herald file graphic. Credit: Save Mount Diablo/Google Earth.
Save Mount Diablo Says Motion for New Trial “Should Be Denied”
Asked about the motion for a new trial, Save Mount Diablo Executive Director, Ted Clement responded, “Regarding the Seeno companies/Pittsburg request for a new trial, the Court has already rejected their arguments for reasons fully set forth in its decision. Their Motion for New Trial does not question the adequacy of the administrative record on which the Court properly based its decision (and which the City itself prepared) or suggest there was any other irregularity or unfairness in the hearing. Instead, they seek a second bite of the apple.”
“Their Motion reargues issues that were fully briefed and addressed in the Court’s Decision,” he continued. “They also seek to introduce irrelevant and improper extra-record evidence, violating black letter law that CEQA actions must be decided on the record that was before the agency when it made its decision.”
“Because their Motion provides no basis for this Court to order a new trial solely on the issues decided adverse to them, it should be denied,” Clement concluded.
CONTRA COSTA COUNTY — On February 10, 2022, the Contra Costa County Superior Court handed Save Mount Diablo a major victory in its legal challenge to the City of Pittsburg’s approval of the 1,650-unit Faria/Southwest Hills Project.
According to the ruling, the city’s environmental review was inadequate in numerous ways. Faria was proposed by Seeno companies/Discovery Builders, Inc./Faria Investors LLC on the spectacular and highly visible major ridgeline between Pittsburg and Concord and could include grading and houses visible across the ridge.
As a result, the City of Pittsburg is required to overturn approvals for the project and correct environmental review. The city and Seeno/Discovery Builders will also be required to pay Save Mount Diablo’s legal fees.
It remains to be seen whether the developers, Discovery Builders, Inc. and Faria Land Investors, LLC, or the City of Pittsburg will appeal the decision.
The Pittsburg City Council—then-Mayor Merl Craft; then–Vice Mayor Holland Barrett White; and Councilmembers Shanelle Scales-Preston, Juan Antonio Banales, and Jelani Killings—all voted to approve the proposal in February 2021. (The mayor and vice-mayor designations rotate among the councilmembers.) They ignored hundreds of letters and public comments that opposed the project. Save Mount Diablo filed a lawsuit challenging the project’s approval in March 2021.
If the project had moved forward, it would have meant the development of a major, new residential subdivision on 606 acres of ridgeline and hillside grazing land in what is currently unincorporated Contra Costa County, immediately south of the City of Pittsburg.
The biologically rich site supports sensitive wildlife species and rare plants and is in one of the most visible and most environmentally constrained areas of the county. The Faria project would have fragmented open space and damaged wildlife corridors.
The proposed housing development would have changed the beautiful green hills forever by annexing the property to the City of Pittsburg and locating 1,650 new residences far from jobs, transit, and services.
The Faria project would have also impacted the new East Bay Regional Park District (EBRPD) Thurgood Marshall Regional Park – Home of the Port Chicago 50 at the Faria site’s southwestern edge, formerly part of the Concord Naval Weapons Station. Save Mount Diablo and its partners advocated for the creation of this new park over many years. The Faria project would have been located directly above the new park on a ridgeline, degrading views from surrounding areas.
The Contra Costa Superior Court ruled that the City of Pittsburg’s environmental review of the project was inadequate in four major ways:
It failed to analyze any impacts that would results from the 150 accessory dwelling units that were added by the City of Pittsburg at the last minute. This is important because the number of units affects every part of environmental review from traffic to water supply to schools, etc. and will make correcting the environmental review complicated;
It failed to include a baseline description of biological resources that could be impacted by the project, specifically special-status plant species;
It failed to consider the water supply impacts of adding 1,650 new housing units in the area, which is especially important given years of drought and increasing fire danger; and
It failed to adequately disclose or mitigate the project’s air quality impacts, including greenhouse gas impacts, without which development will continue to make the climate crisis much worse.
“The court’s decision says to developers: ‘You don’t get to kick the can down the road. You have to do a thorough analysis of your project’s impacts before you lock in project approvals,’” said Winter King, Save Mount Diablo’s attorney from Shute, Mihaly & Weinberger. “The court got it right.”
The court’s ruling means that the City of Pittsburg’s approval of the project is null and void.
The court also noted that additional impacts—such as geologic hazard impacts resulting from grading and filling, and impacts on streams and agricultural lands—would need to be addressed in more detail.
Save Mount Diablo Executive Director Ted Clement said, “Throughout the East Bay, residents have worked hard to protect our ridges and views, flora and fauna, and to defend our parks. In this case that was just decided in our favor, Save Mount Diablo had to stand up against some very powerful interests to help further the work of protecting these treasured resources, which add so much to our collective quality of life.”
“Although I’ve worked for Save Mount Diablo on this issue, I’m also a Concord resident,” said Juan Pablo Galván Martínez, Save Mount Diablo’s Senior Land Use Manager. “This project infuriated me as an open-space lover, a wildlife enthusiast, and someone who is deeply worried and taking action to stop catastrophic climate change. Since this affects both cities, I want both city councils to work together to protect the hills and ridgeline.”
“This is a major victory for Pittsburg’s hills,” stated Save Mount Diablo Land Conservation Director Seth Adams. “Open space, habitat for wildlife, and the community’s scenic views have won the day, and poorly planned development will not go forward, for now. We are very happy with the court’s decision.”
“On the other hand,” said Adams, “while our victory is costly for the city and Seeno/Discovery Builders in time and money, it does not stop the project forever. After correcting environmental documents, the Pittsburg City Council can approve Seeno’s huge project again if they choose. But now they have a second chance to make it better by protecting the ridgeline and neighboring regional park. We don’t have to argue about protecting ridgelines in other cities. The Pittsburg City Council should do the right thing.”
Save Mount Diablo
Save Mount Diablo is a nationally accredited, nonprofit land trust founded in 1971 with a mission to preserve Mount Diablo’s peaks, surrounding foothills, watersheds, and connection to the Diablo Range through land acquisition and preservation strategies designed to protect the mountain’s natural beauty, biological diversity, and historic and agricultural heritage; enhance our area’s quality of life; and provide educational and recreational opportunities consistent with protection of natural resources. To learn more, please visit www.savemountdiablo.org.
East Bay Times, By Annie Sciacca, UPDATED June 24, 2020
At least 15 people have died from COVID-19 infections at the San Miguel Villa nursing facility in Concord, according to data from the California Department of Public Health as of Tuesday, June 23, 2020. (Photo courtesy of Google Street View)
CONCORD — At least 14 people are dead after COVID-19 infected 75 people at an East Bay skilled nursing facility, according to data published by the state.
The state Department of Public Health’s latest report shows that 14 patients at San Miguel Villa, a post-acute nursing facility in Concord, have died after contracting the virus, which infected 62 residents and 13 workers at the facility.
A call to the facility was not immediately returned, so it’s unclear when the deaths occurred. Data reported to the state by the nursing home within the past 24 hours reveal that there are still 45 patients there infected with COVID-19
The state list on Tuesday showed that at least one healthcare worker at the facility had also died of COVID-19, but a spokesman for the facility, Dan Kramer, said Wednesday that it had been incorrectly reported, and that no workers had died.
The latest outbreak is yet another example of how the disease has ravaged the Bay Area’s most vulnerable population of elders living in congregate settings such as skilled nursing facilities or assisted living centers.
Of the 94% of the state’s 1,223 skilled nursing facilties that reported COVID-19 cases this week, there are currently 2,300 patients and 49 health care workers with confirmed COVID-19 infections, according to the state data. Cumulatively, there have been at least 12,282 confirmed cases across California and 7,655 cases among workers at skilled nursing facilities. And 2,299 patients and 89 health care workers have died from causes related to the deadly virus.
In non-medical residential care facilities — known commonly as assisted living facilities — there have been at least 2,969 confirmed COVID-19 cases among patients and staff, who often provide assistance in feeding, bathing, taking medication and other activities. At least 398 people in those facilities have died from COVID-19.
In Contra Costa County, health services director Anna Roth told the Board of Supervisors during its Tuesday meeting that of the 18 COVID-19 deaths that occurred the past week, 16 were from long-term care facilities, such as nursing homes. She did not identify the facilities.
Dr. Sara Levin, a deputy health officer for the county, told the supervisors a county task force had been set up to visit care facilities and help them proactively beef up infection control protocols and provide support in acquiring masks, gloves and other protective equipment, as well as ensuring they had enough staff if workers had fallen ill. The county at the end of May issued a health order to conduct mass testing as a baseline for all long-term care facilities, and then to continue testing staff monthly.
“Where we’ve seen a lot of the spread is when staff in these low-wage jobs are having to work in multiple facilities to ensure their financial stability, without benefits that don’t necessarily allow them to have sick leave,” Levin said. When federal, state and county mandates prevented most visitors, she said, “many residents were staying in facilities, so it was staff members going out to the community … and bringing it in.”
Concord’s San Miguel Villa is a 190-bed nursing facility on San Miguel Road owned and operated by Mark Callaway, Gary Jarvis and Velda Pierce. Pierce and Callaway also own other Contra Costa nursing facilities: Alhambra Convalescent Hospital, Lone Tree Convalescent and Antioch Convalescent Hospital, according to state records.
Since 2017, the facility has had a total of 106 complaints or reported incidents, and state inspectors found a total of 36 “deficiencies.” Some of those deficiencies included problems with infection control.
In an inspection in April 2019, for instance, state inspectors found multiple licensed vocational nurse staff members had not followed proper handwashing protocols.
Last year, the family of an elderly man who died at San Miguel Villa sued the facility, saying its lack of staffing and training led to the man’s suffering. The facility used drugs to sedate him, the lawsuit alleged.
Staffing shortages and lack of adherence to infection control practices have contributed to the outbreaks in nursing homes, experts have said.
“We are really concerned about the lack of oversight in skilled nursing facilities like San Miguel Villa,” said Nicole Howell, executive director of Ombudsman Services of Contra Costa, Solano and Alameda counties. “This underscores the need to improve regulation and oversight — particularly one that specializes in dementia and memory loss.”
The outbreak and death toll at San Miguel Villa is among the largest in East Bay skilled nursing facilities.
East Bay Post-Acute in Castro Valley has had a total of 16 COVID-19-related patient deaths, and 18 patients at Gateway Care and Rehabilitation Center in Hayward have died of the virus.
In San Mateo County, Millbrae Skilled Care has had 14 COVID-related deaths, and more than 100 cumulative infections among patients and 31 cases among health care workers there. But the state data shows there are no infections reported in the last 24 hours at that facility.
In Santa Clara County, 12 patients of Canyon Springs Post-Acute nursing facility in San Jose have died of COVID-19, and at one point 106 patients and staff were infected with the virus. There were no current cases within the last 24 hours, according to the state data.
Update: An earlier version of this story reported at least 15 people had died of COVID-19 at San Miguel Villa. A spokesperson confirmed the state data incorrectly reported that a healthcareworker had died.
By Matthias Gafni, 04/11/2015 12:43:56 PM PDT
Cracks are visible in the roadway on Systron Drive in Concord, Calif., photographed on Tuesday, March 24, 2015. The cracks, cited by USGS geologist Dave Schwartz, are likely caused by movement of the Concord fault. The lesser-known Concord fault creeps ever so slightly annually. (Dan Honda/Bay Area News Group) ( Dan Honda )
CONCORD — A mysterious earthquake fault slices under central Concord, its jagged, quarter-mile-wide seam running beneath a critical fuel-pumping facility, traversing the edge of a refinery processing 166,000 barrels of crude oil daily, and undercutting strip malls and homes.
While its big sisters, the San Andreas and Hayward fissures, grab the headlines, the Concord Fault — with its 11-mile-long fracture zone stretching from the Carquinez Strait to the Mount Diablo foothills — is also capable of producing a catastrophic earthquake, geologists say. And with critical infrastructure in its path, particularly refineries and a vulnerable railroad bridge not far away, a large seismic event could leave the entire northern half of the state without easy access to fuel — disrupting transportation and the transmission of electricity and water, according to a recent study.
According to USGS geologist Dave Schwartz, Kinder Morgan’s Concord Station sits close to a earthquake fault in Concord, Calif., photographed on Friday, March 27, 2015. The lesser known Concord fault creeps ever so slightly annually. (Dan Honda/Bay Area News Group) ( Dan Honda )
The Concord fissure may be largely ignored by the general public. But not by geologists.
“The Concord Fault is significantly more active than the fault that caused the Napa earthquake,” said Chris Wills of the California Geological Survey, referring to the 6.0 wine country temblor last August that caused more than $400 million in damage. “Nobody would be surprised if a magnitude-6 earthquake happened on the Concord Fault tomorrow.”
Make no mistake, Concord’s contribution to the Bay Area’s geologic activity is significantly smaller than the San Andreas and Hayward zones. Updated U.S. Geological Survey estimates indicate a 3 to 4 percent probability of a magnitude-6.7 or higher earthquake over the next 30 years on the Concord or lower Green Valley Fault, a connected Solano County segment, compared with 6.4 percent for the San Andreas and 14.3 percent for the Hayward Fault.
The Concord Fault creeps a measly 4 to 5 millimeters annually, while the Hayward slips 9 millimeters and San Andreas 25 millimeters.
The last catastrophic temblor on the Contra Costa-Solano combo fault struck more than 400 years ago, but geologists still say it’s important to monitor.
“At some point in time that system has to fail — we just don’t know exactly when,” said David Schwartz with the USGS. Even if the Concord Fault only produces a 5.0 quake, it could cause significant damage, Schwartz said.
The great unknown
The lake surrounded by the Lakes Apartments in Concord, Calif., is photographed on Tuesday, March 24, 2015. Geologists say that the lake is there due to a dip in the Concord fault that allows groundwater to seep through. The lesser-known Concord fault creeps ever so slightly annually. (Dan Honda/Bay Area News Group) ( Dan Honda )
On Oct. 23, 1955, a 5.4 quake — the Concord Fault’s last major temblor — was felt from San Jose to Sacramento. It caused $1 million in damage ($8.7 million in today’s dollars) and one fatality, according to the USGS. Windows shattered, brick walls cracked and moved, chimneys shifted and wine bottles crashed from liquor store shelves.
What makes the Concord Fault particularly worrisome to regional planners, so much so that it was highlighted in a December study by the Association of Bay Area Governments, is its potential impact on regional and statewide fuel distribution. Without gasoline, every other crucial need, including water, electricity and transportation, will be affected.
The lake surrounded by the Lakes Apartments in Concord, Calif., is photographed on Tuesday, March 24, 2015. Geologists say that the lake is there due to a dip in the Concord fault that allows groundwater to seep through. The lesser-known Concord fault creeps ever so slightly annually. (Dan Honda/Bay Area News Group) ( Dan Honda )
In its report, ABAG studied three theoretical earthquakes — a 7.9 on the San Andreas, a 7.0 on the Hayward and 6.8 on the Concord.
“Originally, we were just going to explore the San Andreas and Hayward faults, but we realized that (there are) a lot of key infrastructure assets in (the Concord) region,” said study author Michael Germeraad, an ABAG resilience planner.
Five Bay Area refineries — all but two are within a couple miles of the fault — processed 235 million barrels of crude in 2012, about 40 percent of the state’s total, according to ABAG. In addition, Kinder Morgan operates a pumping station nearby that receives processed crude from all the refineries and pipes it out to terminals across Northern California and Nevada.
Critical pipelines
That pumping station, a critical piece of fuel infrastructure, lies directly above the Concord Fault.
Built in the 1950s, the station receives products from eight facilities and pumps the refined crude through pipelines. It can store about 1 million barrels, but normal inventory is half of that, said Melissa Ruiz, a Kinder Morgan spokeswoman. Its five outgoing pipelines serve Chico, Fresno, Reno, Sacramento, San Jose, Stockton and surrounding cities, in addition to seven military facilities and public airports.
The company has facilities and pipelines in active fault areas throughout California but has never lost a pipeline or tank to a quake and maintains its infrastructure to industry rules and regulations, Ruiz said.
In its report, ABAG said it had concerns because pipelines can fail due to soil liquefaction — where hard soil loses strength during strong ground shaking — and fault rupture. Knowing pipeline material, age, weld types and other factors would help scientists know where failures are “more likely,” but that information isn’t available.
“Damage to the Concord station would interrupt fuel transmission across the northern half of the state,” the report concluded.
The study also found that if one Bay Area refinery was damaged, they would all likely suffer damage because of their close proximity to each other, and because they are built on similar soils and have similar construction.
“A conservative restoration estimate of damaged refineries is months,” the study found for the Concord quake scenario.
The Tesoro Golden Eagle facility in Martinez sits on 2,206 acres just feet from the fault. Built in 1903, Golden Eagle employs about 650 workers and is the fourth-largest refinery in California.
Spokeswoman Patricia Deutsche said refinery officials are aware it sits next to the fault and a liquefaction zone, but she said the facility follows industry design standards. Piles are driven down hundreds of feet into bedrock, equipment has been retrofitted and the Avon Wharf, an oil terminal located on aging timber piles along the southern shore of Suisun Bay, just received environmental clearance for retrofit up to state quake standards, she said.
Seismic assessments of Bay Area refineries are done every five years, and the building code requirements consider the level of possible ground shaking from any nearby fault, said Gayle Johnson, senior engineer with Simpson Gumpertz & Heger, a national engineering firm.
Johnson, who has investigated the performance of industrial facilities in more than 20 earthquakes worldwide, said since the refinery retrofit programs began in the late 1980s and early 1990s, there has been a “ton of upgrade work done.”
Other impacts
While fuel infrastructure may be the top concern for the region, a large quake could disrupt other major lifelines. The Benicia-Martinez rail bridge, located between the two vehicle spans, is particularly vulnerable, according to ABAG, and could face “significant or complete damage.”
Liquefaction along the Carquinez Strait could cause dredged water channels to slough into the shipping pathways. Runways could rupture at Buchanan Field, which sits adjacent to the fault. Delta levees could breach, creating flooding and impacting drinking water quality, ABAG found.
Two-thirds of the power generated in the region is produced by natural gas facilities, many along the Carquinez Strait.
“In the event natural gas lines are damaged, these facilities will be unable to generate electricity,” the study found.
Still, Wills warns that what will happen during a significant quake on the Concord Fault is largely a mystery.
“How it releases is not that well known,” he said.
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