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According to a San Benito County planner, Measure A will not immediately stall the plan to build a visitor center, gas station, fruit stand and motel at the corner of Hwy 101 and Betabel Road.
The Betabel Road Project was approved by the San Benito County Board of Supervisors in November 2022 and that approval cannot be retroactively revoked, said Johnathan Olivas, associate planner for the county.
Neither the supervisors, the county, nor voters can take away this approval, Olivas said.
“Under California Civil Code Section 3, laws do not apply retroactively unless explicitly stated,” Olivas said. “Measure A cannot affect the project’s vested rights, which are legally protected under the zoning in place at the time of the approval.”
Anne Hall, one of the project’s lead engineers, told BenitoLink the developers concur and plan to move forward. “The county can’t take away a permit that was given,” Hall said.
The stated purpose of Measure A, which voters passed on Nov. 5, is to stop commercial growth that doesn’t have voter approval. From now on, changing the designation of agricultural, rural, or rangeland to commercial, one of the first steps toward building any project, will require any developer who wants to build something in the county’s unincorporated area to put their project to a countywide vote.
The initiative also explicitly removes the “commercial regional” designation on four “nodes” along Hwy 101 which were prioritized by the county for their commercial opportunities—including the site of the Betabel Road Project.
For the last five years, Rider and Victoria McDowell have tried to develop their 111-acre Betabel property. In the process, they have spent $200,000 on clearing the Pajaro River, which touches the western side of the property. Since the restoration began, steelhead trout have returned to its waters after a 75-year absence.
And even though Measure A may not be able to stop the project, a lawsuit might.
In October, the county Planning Commission approved a new subdivision of the Betabel property. Olivas said this move doesn’t “introduce new uses beyond what is permitted by the current zoning,” and merely “aligns” the property lot with the “current land use and density standards.”
Three organizations opposing the development—Protect San Benito County, the Amah Mutsun Tribal Band, and the Center for Biological Diversity—appealed the decision, saying that realigning the property lines was a way to “insulate” the project from “the will of the voters.”
At a public meeting on Nov. 12, county staff asked the Board of Supervisors to reject this appeal on the grounds that they cannot legally rescind the approval that was previously given. The supervisors agreed in a 3-2 vote.
For the moment, the opponents of the Betabel Road Project are concentrating their efforts on the ongoing lawsuit, said Jessica Wohlander, environmental associate at Green Foothills and a spokesperson for the Yes on Measure A campaign.
“Right now, we’re just watching, waiting for the outcome,” Wohlander said.
The lawsuit
In December 2022, Protect San Benito County, the Amah Mutsun Tribal Band, and the Center for Biological Diversity took the Betabel Road Project to court, alleging that the county, in the process of approving it, violated the California Environmental Quality Act (CEQA), as well as state planning and zoning laws. They alleged the current environmental impact report (EIR) is invalid.
San Benito County Superior Court Judge Patrick Palacios dismissed the case in May 2023, ruling the petitioners did not file the lawsuit before the 30-day deadline.
In July this year, the California Sixth District Court of Appeals reversed Palacios’ decision. It ruled that the challenge was filed in time to be considered. The case was returned to San Benito County Superior Court, which is now studying it.
If the court rules in favor of the plaintiffs, there is a possibility that the project will not be completed. If the project’s EIR is invalidated, a new EIR would have to be drafted. In this scenario, the opponents say, the previous approval would be moot and a new one would be needed. Measure A would then apply, and the project would need to be put before voters.
“What usually happens when CEQA petitioners are successful is that the court invalidates what has been approved, and the county would need to redo the process,” said Sara Clark, the attorney representing the Amah Mutsun Tribal Band in the pending litigation. “If this happens, then Measure A could apply.”
If the court rules against the plaintiffs, the project could move forward.
The McDowells and their engineers are moving forward on creating the final maps, while the project’s opponents wait for a decision. According to Clark, they expect to hear an answer in the first half of 2025.
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