(Letter was placed in Public Comment at the City Council Meeting)
Dear Mayor, Council Members, City Manager, City Attorney, and the Clayton Community:
We are writing to provide a professional courtesy update regarding our September 5th letter, in which we requested documents about the Olivia on Marsh Creek project.
We aim to inform you and the community about our ongoing research into the project and the potential for litigation.
Please know we do not dispute the project's approvals or its success in defending legal challenges. Our concerns stem solely from interpretations of Resolution #07-2020 and others related to Olivia on Marsh Creek, as well as enforcement of the project's Conditions of Approval (COA).
We had hoped that the Council would announce its position on the Olivia on Marsh Creek project after its closed-door meeting on September 7th, as mentioned in our previous letter. Specifically, we were interested in hearing about any violations, enforcement issues, and the City Attorney's opinion regarding the project's compliance with Resolution #07-2020, and other resolutions as they relate to the Olivia on Marsh Creek project.
The Council's silence on these matters raises many unanswered questions. If the project fully complied with the Resolutions, the City presumably would have reported that back to the community. The lack of an announcement suggests issues with how the project was approved and why it has not progressed diligently, as required in the Resolution.
After a lengthy review of over 325 pages of documents obtained through our September 5, 2023, Freedom of Information Act (FOIA) request, which covered January 1, 2023, through September 14, 2023, we have organized the materials chronologically and analyzed them with our legal counsel to prepare an initial report of our findings and conclusions for the Council and community to see.
Side note: Councilmember Holly Tillman's accusations of misuse of our FOIA requests are baseless and inappropriate. First, exercising one's legal rights should never be considered wrongdoing. Second, these requests would have been unnecessary if the City had properly enforced Resolution #07-2020 and the law. (Asking questions should never be considered inappropriate!)
Because the documents were not sent to us chronologically, we had to spend many hours organizing them to understand the timeline. After arranging the documents and reviewing most with our legal counsel, we have identified observations and conclusions about what happened.
The City's oversight and enforcement should be called into question by several COA violations, including, but not limited to:
· improper construction fencing,
· inadequate dust mitigation,
· failed hydroseeding,
· lack of rodent control,
· falsely applying for permits as an owner-builder. (See below)
According to the California Department of Consumer Affairs (DCA) and the Contractors State License Board (CSLB).
1. An owner-builder is a property owner who acts as their general contractor on a construction project instead of hiring a licensed contractor to manage the work.
2. The owner-builder may perform the labor themselves or hire employees and subcontractors.
3. However, owner-builder projects must be on the owner's primary residence that they have lived in for at least 12 months before completing the work.
4. Furthermore, the owner cannot build and sell more than two structures in any 3-year period, which aims to prevent abuse of the owner-builder exemption.
Interestingly, the defensive, arrogant, and rude response from the City Manager, City Engineer, and Kennedy and Associates when questioned about oversight of Bill Jordan's owner-builder Olivia project at our November 5, 2023 meeting can likely be explained in #3 and #4 above. The point is, that the property was not his primary residence, and he plans to build more than two structures. The application misrepresented the developer's owner-builder status and number of buildings constructed, violating eligibility requirements. In addition, there was no oversight and they all knew it.
However, there was another important takeaway from this meeting: Olivia's oversight seems to be reactive (complaint-driven) rather than proactive (through site visits). Ironically, this reactive approach has led to the City Manager feeling overwhelmed and frustrated by the high volume of complaints, even as he ignores more proactive oversight.
Based on several of the documents we have reviewed, it appears that Bill Jordan the developer, is buying time and the City of Clayton is being played as a fool.
The Resolution lacked necessary provisions like performance requirements, penalties for noncompliance, or other enforcement mechanisms.
1. The developer violated many Conditions of Approval by the March 3, 2023 deadline.
2. He requested an extension from the Council, which was approved on a 3/2 vote. The same evening, he requested the extension, he lied to the council and said he would be building the project when all along he had the project listed for sale on LoopNet.
3. In a letter dated March 10, 2023, the Community Development Director reported to an unknown individual (the name was redacted) about the COA received to date. The Community Development Director clearly states in this letter that groundbreaking activities have not started yet.
4. In a letter dated August 10, 2023, he asked the Community Development Director how many times he could renew his permits.
5. In a letter dated July 17, 2023, he mentions he is having problems finding financing.
6. The oversight agreement with Kennedy and Associates was not signed until September 19, 2023, yet work began earlier over Labor Day weekend.
7. On Sunday, September 17, 2023, the Clayton Police were contacted about work being conducted over the weekend. The document we received indicates that Sergeant Rich Enea contacted Bill Jordan at the property location. Bill Jordan said he had a permit to work on weekends, when in fact he did not. This is in complete violation of the Conditions of Approval #25.
8. It now appears Bill Jordan is reaching out to the State of California - Department of Housing and Community Development (HCD) and non-profit groups looking for help.
9. In one of the letters dated 8-1-23 that we received, a group contacted him about a "Sober Living Environment" being built or occupying the Olivia property.
Lastly and most importantly, as recognized by the construction industry, and in the legal profession, the diligent start of construction means the first placement of permanent construction of a structure depicted on an approved site plan, such as pouring of slabs or footings, installation of piles, construction of columns, or any work beyond the stage of excavation of a foundation. Permanent construction does not include land preparation, such as clearing, grading, tree removal, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation of footings, piers, or foundations or the erection of temporary forms. Therefore, based on industry standards, the city and developer would struggle to prove the diligent start of construction occurred by March 3, 2023.
In our opinion, the City of Clayton is unwilling to enforce resolution #07-2020 themselves based on the hold harmless clause within it. This clause requires Bill Jordan to cover the City's legal fees if sued by an outside group over lack of enforcement. While the City may view avoiding its legal costs as a smart business move, this approach fails to truly enforce the resolution if violations occur, leaving citizens unrepresented and unprotected. The core issue remains unresolved - the City must take responsibility for enforcing the laws it passed, not pass that duty to citizens through legal technicalities.
At this time, we are still reviewing additional documents and assessing our options. Our legal counsel recommended pausing over the holidays to regroup in January, which we agreed was prudent.
The new year brings an opportunity for a fresh start. We are optimistic we can work together to thoroughly yet efficiently review this project's details and hold the developer accountable with your help.
Let's begin 2024 with a renewed commitment to open communication and good faith. The Clayton community deserves no less.
Sincerely,
Gary Hood
Clayton Watch
Bill Walcutt
Clayton Watch
We appreciate you for reading this article.
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