Correct Information About 315 Apartments

Some voters are confused by comments that if Measure L is rejected the developer might resubmit the original 315 apartments application that was suspended on 1/13/14. Instead of being distracted by this vague threat, voters should evaluate the Homes project on the merits of its traffic impacts, view impacts, and $3M of city money for a children’s play area and sport field on a major traffic corridor with air quality issues. The city has the legal authority to deny that project as detailed below.

Click here for the full document

Here is a summary:

  1. The apts application was never approved. It was suspended in 2014 when the city certified the apts EIR with 13 significant unavoidable environmental impacts including 5 public health and safety impacts. The California housing accountability act, government code (“govt. Code”) 65589.5(d)(2) authorizes denial of apartments for adverse impacts on public health and safety.
  1. The controlling general plan designation for the property became low density single family residential 2 units/acre (“LDSFR”) on 8/10/15, which does not allow apts. If resubmitted, the apts application would require a general plan amendment, which is a legislative act under govt. Code 65301.5 and subject to another voter referendum.
  1. The developer argues there is administrative professional office zoning (APO) on the property from before 2015, but this is temporary and unenforceable. Per govt. Code 65860(c). The zoning is subordinate to the LDSFR general plan designation. The city council is already making plans to amend the APO zoning to low density residential if measure L is rejected by the voters.
  1. A 2014 tolling agreement and processing agreement would not allow the city to disregard state law and the strict deadlines of the permit streamlining act which expired on the apts application in 2014.
  1. Approval of Measure L will establish precedents on traffic impacts and hillside development that will adversely affect the city’s residents on future land use applications.
  1. The city breached a mandatory duty to voters and improperly interfered with the referendum process.

Future outcomes in litigation cannot be predicted with absolute certainty. All that can be done is to make an evaluation of legal issues based on the strengths and weaknesses of the various arguments. In the case of Measure L, the arguments being put forward about apartments are weak. Voters should decide how to cast their vote based on the merits of the Homes project and not be misled.

Rebuttal to Developer-funded Health Risk Assessment

In April supporters of Yes on L published a new HRA (Health Risk Assessment) from the same company that did the original one.  An independent analysis of that HRA has uncovered major flaws with the methodology, enough to make it invalid.

Click here for the full document

According to this analysis, the methodology is inaccurate in methodology and in omissions and the health risk to children understated by a large factor, large enough to change the outcome of the report.  There were several problems including:

  • Air Quality used was average of an entire day, though children would be using the field from 3-6pm, when traffic is much heavier.
  • Children were assumed to be standing in place, when they would in fact be exercising vigorously.
  • Ultrafine Particulate Matter was completely ignored.

Correcting the errors results in a determination that the field is unsuitable for the intended activities.

Response to City Attorney’s 5/14 update

Recently, the City Attorney provided misleading guidance regarding the previously proposed Terraces project and if it could be resurrected if Measure L is defeated.  Our attorney responded to that letter (previously discussed here).

On 5/14 she provided an updated summary, but there were no substantial differences and all of the errors in reasoning for the previous summary still remained.

Click here for the full response {Note: this response also includes the full text of the previous response}

Supporters of the “Homes at Deer Hill” proposal attempt to scare voters into believing that a “No” vote on Proposition L will result in the Terraces project with 315 apartments on the sensitive parcel between Deer Hill Road, Pleasant Hill Road and Highway 24. The truth, however, is that the apartment project has never been approved; and it would face the same extreme obstacles as before if the developer elects to resurrect it — including but not limited to the People’s referendum power.

Info on new State Housing Laws as They Relate to Lafayette

There have been many questions raised regarding the housing bills passed in 2017 and 2018.  Here then is an attempt to answer those questions.

SB 35 provides for various housing reports, and expedited approval of multifamily projects if a locality that does not meet assigned housing goals fails to submit “an annual housing element report …for at least two consecutive years”. However, even that only applies to projects for which “at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses”. Deer Hill meets 0 percent of this requirement. Deer Hill is not part of Lafayette’s multifamily housing element map. Also per city website, “Lafayette’s Housing Element was certified by the State of California on March 26, 2015” for 2014-2022. In other words, Lafayette is in compliance and Deer Hill wouldn’t fall within SB 35 even if the city wasn’t.

The other new laws cited mainly fall within the 2018 version of the Housing Accountability Act, Government Code 65589.5, addressed below.

The Deer Hill 44 Homes project has the Level of Service F traffic impacts, road closure, and steep roundabout that has been mentioned, no way to sugarcoat that. As for the air quality issue for the children’s play area 160 feet from PHR (36,000 cars/day), and sports field 200 feet from PHR and 50 feet from Deer Hill Road (12,200 cars/day), the air quality risk to children is undeniable. The developer’s consultant has put out a report disregarding and failing to report on fine to ultrafine Particulate matter smaller than 2.5 microns, the type that penetrates into lung tissue, the bloodstream, and the body’s cells and blood/brain barrier according to James Leach, recipient of Lafayette’s Award of Environmental Excellence, and the Bay Area Air Quality Management District’s 2016 “Planning Healthy Places” [very small particulate matter “less than 2.5 microns…can travel deep into the lungs and and enter the bloodstream”; “children and infants are among the most susceptible…”; recommends “restricting sensitive land uses near heavily trafficked freeways/roadways”]. The Legislature restricts (Ed.Code 17213) public school district from placing new schoolsites within 500 feet of busy traffic corridors; the Ed. Code definition of schoolsite includes “playgrounds, athletic fields”.

For any reader trying to make sense of the developer’s claims on purported air safety- the key is to look for reference to particulate matter smaller than 2.5 microns, the point below which the PM enters the bloodstream, cells, and brain per Mr. Leach, the BAAQMD, etc. You won’t find it disclosed in the developer’s report, who completely disregards this health risk. That’s how they try to claim the air is safe for active children playing near tens of thousands of cars. Similar near roadway sites monitored by BAAQMD for PM 2.5 test into the “Unhealthy for Sensitive Groups” monthly category, and they aren’t monitoring yet for below PM 2.5 which may be worse.

So what chance of 315 apartments coming back? The developer “suspended” that application on 1/13/14 in the face of major opposition and the City Council’s certification of the Apts EIR with 13 significant unavoidable environmental impacts. Included were 2 unavoidable air quality impacts and 3 unavoidable traffic impacts, literally “jammed conditions” with “unacceptable” delays to emergency responders. Even with the 2017 amendments, the Housing Accountability Act, Govt. Code 65589.5(d)(2), authorizes denial of multifamily for significant unavoidable (SU) public health and safety impacts. These SU impacts were certified by the City. Other claims by the developer and city attorney (who recommended breaching the city’s mandatory duty to voters in 2015, per the Court of Appeal) are also incorrect. The apts application lapsed in 2014 under controlling state law, and if “resubmitted” is subject to all new city ordinances and the Low Density Single Family Residential general plan designation adopted in 2015, under Govt. Code 65950(a)(1), 65957, 65943. Apartments would require a general plan amendment and be subject to another referendum (65301.5).

If you don’t like the 1224 vehicles/day and spending $3M of city money for a children’s play area and sports field by a busy traffic corridor, you should feel free to vote the way you want. There are better field locations and after June 5 the city could approve a more common sense project with less traffic impact to gridlocked PHR.

Rebuttal to misleading “Community Alert” from Yes on L campaign

“Yes on L” sent an email labeled a “Community Alert” to many Lafayette residents.  We have responded to their email because it contains many untrue statements.  The first of these comes right away, when they claim “The developer … got approval for 315 apartments.”  This is blatantly false as the project was never approved.  There are many other falsehoods and misleading statements in the email.

For a full analysis, click here.  Some of these questions are complex, but we’ve tried to make it as concise and readable as possible.

The Yes on L campaign is funded by the developer and unfortunately supported by many on the City Council as well, when they should be staying neutral on this matter and letting the voters decide.  In contrast, we are a citizen’s group that relies entirely on donations to keep going.  Everyone who is working for or with Save Lafayette does so on a volunteer basis because we love and care about this city.

Please feel free to contact us with any questions.  Thanks,

Save Lafayette

Five Reasons to Vote No on Measure L

Major Issues to Consider When Voting No on Measure L – Deer Hill Homes Development

In 2015, the City of Lafayette denied the referendum signed by 2000+ citizens to vote on the “Homes at Deer Hill” development, resulting in litigation against the City. In February, 2018, the Court determined that the City violated State law and ordered the City to put the referendum to a vote.  Although the November general election date was anticipated, the City purposely rushed the process in order to limit voter’s ability to obtain critical information necessary for an informed decision. MEASURE L gives voters, on June 5th, the opportunity to approve or reject City Ordinance No. 641, approving 44 homes, a dog park, ‘tot-lot’, sports field, and 78-spaces lighted parking lot at the intersection of Deer Hill and Pleasant Hill Roads near Highway 24 and Acalanes High School.

The City is not working in your family’s best interest. The Deer Hill project has been seriously mishandled by the City.  The Deer Hill project has proven and documented significant increases in traffic congestion and air pollution, presenting a serious health risk to the children and other residents of Lafayette.

Click here for 5 important facts you should consider when Voting No on Measure L

Response to City Attorney re: Terraces Proposal

For the full response, click here:

Response to City Attorney re Terraces Proposal:

Here are some highlights from the response:

The Save Lafayette organization hereby responds to the city attorney’s misleading “Informational Update Regarding whether Terraces of Lafayette Apartment Project could be subject to a Referendum.” She states that the Terraces proposal sought permits which are administrative and, she claims, not subject to referendum. But she ignores essential provisions which would indeed be “legislative” acts subject to the constitutionally protected power of the People to override the Council by both referendum and litigation.

Supporters of the “Homes at Deer Hill” proposal attempt to scare voters into believing that a “No” vote on Proposition L will result in the Terraces project with 315 apartments on the sensitive parcel between Deer Hill Road, Pleasant Hill Road and Highway 24. The truth, however, is that the apartment project has never been approved; and it would face the same extreme obstacles as before if the developer elects to resurrect it — including but not limited to the People’s referendum power.

The certified Environmental Impact Report (EIR) for the Terraces proposal describes 53 “significant adverse impacts,” 13 of which would be “unavoidable” even with permissible mitigation. The EIR is so devastating to the developer that it appealed the Planning Commissions’s certification of the EIR and then threatened a lawsuit when the Council affirmed the certification in 2013.

As Mayor Tatzin explained, “the Council has taken no position with regard to the project. All the Council has done is certify the EIR ….” (City Council Minutes, Sept. 23, 2013, p. 55.) And when the Council decided to shelve the Terraces application, then-Vice Mayor Andersson declared, “there are places where the original 315-unit project would be a great project, but this was not the place and people came out and made that point clearly and overwhelmingly ….” (City Council Minutes, Jan. 22, 2014, p. 16.)

Thus, the possibility of the Council approving the Terraces apartments is highly problematic at best. And if it were to do so, the citizens of Lafayette could override that approval by referendum and/or litigation.

A Victory for Transparency in Lafayette

NEW ETHICS POLICY ADOPTED MARCH 26 FOR LAFAYETTE PLANNING AND DESIGN REVIEW COMMISSIONS

A new policy on conflicts of interest on the Lafayette land use commissions was finally approved by a 3-2 vote at the City Council meeting at 11pm on March 26. The new policy, referred to as Version A, prevents commissioners from appearing for their own clients and includes the firms and affiliates of commissioners as well. Five commissioners have subsequently resigned. Here is an analysis of the background to this vote.
The City of Lafayette has for many years appointed local architects to the Lafayette Design Review Commission (DRC) and Lafayette Planning Commission (PC). Usually all or almost all the DRC has been architects. There have been many complaints. The several dozen citizen letters and comments at hearings were unanimously in support of the strict policy, Version A.
There have been two problems with the system being populated with local architects from firms that represent their applicants before the DRC and PC:
First, there have been six commissioners from the DRC and PC who have personally appeared for clients multiple times before their own and other commissions, even the city council. This is a misdemeanor under the California Political Reform Act, Government Code 87100 et seq., punishable by a fine of up to $10,000. DRC Commissioner Ward was fined by the California Fair Political Practices Commission (FPPC) in 2008 (FPPC no. 05/652) for advocating for a client to his other DRC commissioners. Former PC Commissioner Sayles is under investigation by the FPPC (FPPC no. 16/772) for alleged appearances for clients in 2015. Many citizens who opposed these applications were not aware of the FPPC remedy and incidents have gone unreported. Regrettably, the past City Council has not reported such activity to the FPPC nor undertaken any corrective action, literally a zero enforcement policy. This is especially the case with our longest-serving City Councilmember, who has voted to appoint and reappoint these commissioners many times and declined to address the problem until Councilmembers Samson and Burks came along.
Second, the architecture firms of sitting commissioners have represented clients on land use applications before the DRC and PC. For example, former Design Review Chair Gordon Chong, who resigned in protest, described the practice to the City Council as developers who were “well schooled at co-opting” Lafayette’s land use process by adding Lafayette DRC and PC Commissioners to their development team. On March 19, PC Commissioner Ateljevich described watching another PC Commissioner present for his own client and that “every word the public said was true” in complaints about the abuse. Developers have hired commissioner’s firms as Mr. Chong states, the commissioner works on the project and receives income, but the actual presentation before the DRC and PC is made by another member of the firm and that commissioner recuses from the actual vote. This has happened many dozens of times in past years; recently, for example, the developers of the Woodbury II 99-unit condominium project and the proposed cancer business project near the Lafayette reservoir hired the firms of both PC Commissioner Chastain and DRC Commissioner Cleaver to represent them, one from each commission. There was a further perceived problem that architect commissioners would vote reciprocally for the projects of each other’s firms. Proving motivation is very difficult but the appearance was unquestionably there.
Councilmembers Samson and Burks, the two most recent councilmembers, recognized the problem and proposed so-called Version A that prevents commissioners and their firms from representing clients before the DRC and PC while the commissioner from their firm is on the commission and for a period of one-year. The reform was sorely needed. Councilmember Samson has commented that he regarded this as the single largest problem with the City of Lafayette. Councilmember Burks’ commented Monday night that this would be the most important vote he would cast on the council. Councilmember Mark Mitchell was persuaded and joined him. Councilmembers Tatzin and Mike Anderson have appointed these commissioners for years and done nothing about it, even when asked to do so by citizens, and voted against the reform.
Version C, proposed by Councilmember Tatzin, purported to go beyond state law as to so-called solo practitioner commissioners, but this was not true. A written comment from Senior FPPC Counsel, dated March 19 confirmed that state law “would not permit an architect, who is a solo practitioner, to advocate on behalf of a client”, contradicting Councilmember Tatzin. Councilmember Tatzin’s Version C would have expressly authorized firms of commissioners to represent clients before the DRC and PC while their firm member was on the commission, and even allow that commissioner to work on the project until the time the application was submitted to the city and under “review”. Version C would have regressed from state law and did not restrict reciprocal voting, i.e. voting for another commissioner’s firm’s project followed by that commissioner voting for a project of the first commissioner’s firm.
Many of the PC commissioners now resigning had issues. Commissioner Chastain’s firm has represented clients before the city many times, and his website has advertised that he is a Lafayette PC commissioner. Commissioner Curtin, an attorney, is partners with Alan Moore who represents the Deer Hill developer that is the subject of Measure L now going on the June ballot. Commissioner Gutzwiller is a commercial real estate broker who complained that his firm would be restricted.
Hopefully qualified citizen commissioners will soon be appointed, the PC will be functioning better than ever, and this regrettable phase of Lafayette city government will be over. Save Lafayette and many citizens welcome the reform.