Housing / Land Use

Betabel project keeps commercial designation following lawsuit

Judge says the ordinances that rezoned the property were not included in Measure K.

The Betabel project on Oct. 20 was given the green light to continue after a lawsuit filed by Preserve Our Rural Communities (PORC) failed to stop a rezoning of the property.

San Benito County Superior Court Judge Omar Rodriguez ruled that ordinance 1008 was substantially different from ordinance 991. Ordinance 1008 was approved by county supervisors on April 7, setting a Commercial Thoroughfare (C-1) zoning designation on 29 acres of the property located on Highway 101. Ordinance 991, which voters opposed by rejecting Measure K in March, set the development criteria for the more restrictive C-3 zone designation. 

Rodriguez said the focus of the lawsuit was whether ordinances 991 and 1008 were substantially similar. He concluded they were different because ordinance 1008 addresses zoning changes, while ordinance 991 did not rezone any property and instead designated development regulations that applied countywide, not to any specific property. 

“It was actually ordinances 992 through 995, I believe, those were the ordinances that actually rezoned the properties to C-3, making those properties zoned to a commercial designation,” Rodriguez said. “Those specific ordinances that actually rezoned the property were not challenged by way of referendum and they could have been.”

Mark Wolfe, attorney for PORC, argued that the essential feature of Measure K was that voters rejected commercial development on that property. He said that the supervisors were essentially doing the same by adopting a C-1 zoning designation. 

“My family’s charity is delighted that the judge sided with Betabel and dealt this dishonest group called PORC-Coalition to Protect San Benito such a crushing defeat,” said Rider McDowell, owner of the Betabel project and property. “We look forward to building something wonderful for the county and realizing our vision of local jobs, tax revenues and essential services on this former highway junkyard, with all profits to pediatric cancer research.”

The Betabel project consists of 29 acres zoned commercial and another 85 acres remaining zoned as Agricultural Rangeland-Flood Plain. 

The C-1 zoning allows development of restaurants, motels and hotels, commercial entertainment and amusement establishments, roadside stands, retail businesses and various automobile service businesses. It also limits building to 40% of the 29 acres with a maximum height of 35 feet.

Any project submitted by the applicant, the Thomas John McDowell and Victoria McDowell Charitable Remainder Unitrust, will be subject to site and design review by the San Benito County Planning Commission to address potential water, biological and visual impacts. 

McDowell did not confirm to BenitoLink that a project application had been submitted to the county already, and the county did not respond to request for confirmation on whether they had received an application.

However, McDowell has previously sent mass mailers to residents and held a town hall meeting on June 25 describing his vision for the project, which he describes as an old-fashioned convenience store, gas station, a large barn where local produce would be sold, a visitor center, and family attractions behind the barn. 

“The supervisors learned in advance we were going to do a referendum, so they changed the ordinance creating the C-3 zone from one ordinance and broke it into five parts and that’s the reason we lost yesterday,” PORC secretary Mary Hsia-Coron said. “They have good legal advisors that outmaneuvered us.”

On May 15, county planning commissioners approved six different action items that encompassed the adoption of C-3 regulations, zoning code changes for four commercial nodes and removing an incorrect designation for a property near the Highway 101/156 interchange. On Sept. 24, the Board of Supervisors also separately ratified the commissioners’ decision with ordinances 991 through 995.

Despite the ruling, Hsia-Coron said PORC will continue to fight as they have a lawsuit pending regarding the California Environmental Quality Act requirements for the project. She said both parties had a settlement hearing on Oct. 23. Assistant County Counsel Joel Ellingwood said the law requires both parties to engage in settlement meetings within 45 days of service of a lawsuit. He added the discussions within those meetings are confidential and ongoing. Another settlement hearing is scheduled for Nov. 11.

Other related BenitoLink articles: 

https://benitolink.com/supervisors-approve-c-1-rezoning-of-betabel-node/

https://benitolink.com/court-order-temporarily-halts-betabel-c-1-rezoning/

https://benitolink.com/court-stops-betabel-rezoning-until-after-state-shelter-order-is-lifted/

https://benitolink.com/primary-election-2020-measure-k/

 

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Noe Magaña

Noe Magaña is a BenitoLink reporter. He also experiments with videography and photography. A San Benito High School alumnus with a bachelor's in journalism from San Jose State and a Liberal Arts Associate's Degree from Gavilan College. Noe also attended San Jose City College and was the managing editor for the City College Times, the school's newspaper. He also was a reporter and later a copy editor for San Jose State's Spartan Daily.