Outside Counsel must be Extended for Lafayette – meeting on Monday August 13

Outside counsel contract must be extended on a permanent basis for the Terraces Apartment development

– Come speak to the City Council this comingMonday, Aug 13th starting at 6:15 P.M in the Library.
– Write an email to the city clerk jrobbins@ci.lafayette.ca.us before noon on Monday.
Why Outside Legal Help Must Continue:

Our City Council will consider extending the contract with Coblentz, Patch, Duffy & Bass LLP, the law firm that was brought in to bolster the city’s legal team related to legal matters of the Terraces Apartments. Given the spectrum of opinions on the city council, the Coblenz law firm will give a balanced presentation on both sides of the legal debate; and take a safe approach with an ongoing clearer understanding of how a court could determine various outcomes.

You must speak up now so that the city attorney and majority on the council do not fail to take appropriate administrative and legal steps for denial of the Terraces Apartments.

Send an email to the City Council c/o city clerkjrobbins@ci.lafayette.ca.us before noon on Monday stating that:
Outside counsel with Coblenz should be extended on a permanent basis for the Terraces project to (1) properly respond to letters from the developer’s attorney, Alan Moore (2) to advise on preserving all legal options for the city and (3) to unbiasedly clarify specific impacts of the original general plan and zoning designations.

Concord’s Mayor speaks out against AB2923

Save Lafayette is opposed to AB2923 and has been working to either defeat it, or in worst case, modify it.  We also have been encouraging the Happy Valley Board of Directors President to take action with their members, who are the most impacted.  We encourage all Lafayette residents to oppose it.  Edi Birsan, Concord City Council Member, said it very well in the latest Diablo Valley Gazette:

Opposition to Assembly Bill 2923 (AB 2923) Money and Land: The BART GRAB

“Over 150 years ago the state of California decided that one of the two functions of Cities was to be Land Use Planning. Cities build communities. Cities are led by directly elected officials that live in the cities (with a few felonious exceptions here and there). Railroads were created to run trains. The current bill in the State Legislature AB2923 that was passed in the Assembly intends to totally negate that function of cities and in effect allow 5 members of the BART Board living in San Francisco and Alameda to determine what gets built in Contra Costa on BART land regardless of the requirements of the existing zoning established by the elected officials of those
cities.

Remember those 5 are looking at the interests of San Francisco and Alameda, not you. BUT wait there is more, not only can they decide what height, density, and use is put to them, it also strips all cities of any future zoning changes and allows the BART Board to make any rules they want. As if that was not enough of a stick in your eye, they also can totally disregard the parking requirements of the city construction code and the cities are FORCED to change the zoning to whatever the BART Board feels like defining not only now, but in the future as well if the whim moves them.

BART is a railroad, that needs to focus on providing a SAFE, clean, and efficient train system. Does their track record give anyone confidence that suddenly they will be able to make community plans? Are you willing to yield to their E.S.P. ((Extremely Small Prospects)) to delve into what the local community needs in terms of the balance of housing, jobs, traffic and the supporting impacts on police, parks, schools, water, etc.?

So WHY? Like many things in politics it comes down to MONEY and POWER. When a developer gets to build an apartment structure and gets to eliminate the structured parking, it puts $40,000-$50,000 into his pocket. Eliminate 100 spots and it is $5 million in the bank. BART who wants to make more money on its land than its parking fees, which they already have jacked up, can get lease revenue from the construction trading away the zoning to put massive apartments where none would otherwise be allowed. When BART obtained their land, they knew the zoning. When the commercial, retail and residential folks around the station invested their money into their land, they knew the zoning. Everyone knew the road to change it went through the local Planning Commission and into the City Council Chamber in front of THEIR
elected officials.

This Bill is a gross violation of that social and political contract that defined the community and its related parts: the people, business, local elected officials and a focus on what is a community. We should be standing united against this. If BART wants to subsidize and help housing construction, they can turn their land over to the cities. We know how to build communities and that will give them time to learn how to run a railroad” – Edi Birsan.

Measure L Update

MEASURE L UPDATE JUNE 19, 2018

There is a forty five day moratorium, starting June 13, that suspends city council approval of any development inconsistent with the General Plan, which is for a maximum of 2 homes per acre. This will give the city time to rezone the Deer Hill site to match the General Plan, as ordered by the Appeals Court in February, after the city illegally tried to deny citizens the right to vote on the project. At the special council meeting on Wednesday June 13, the city attorney tried to include an exception to the 45 day-moratorium, which would have made the Terraces exempt from the moratorium. Ivor Samson strongly objected to the exception; Mike Anderson and Cam Burks agreed to exclude the exception; Don Tatzin argued for about an hour to allow the exception but finally gave in.

The developer resubmitted the 315 Terraces apartments application on June 15. Ultimately approval or denial of that project will be up to the city council. It Is likely that the developer has no intention of building the apartments. All his past projects are single family residences, http://obrienhomes.net/about-us/past-projects.php

The O’Brien Land Company funded the Yes on Measure L campaign because the 44 homes are what they know how to build, what they wanted to build and maximize their profits.

Three things to note:

  1. The Opportunities and Constraints analysis in 2006, together with the average slope calculation in 2008, showed 14 homes as maximum for the property.
  2. The site rezone will be considered first by the Planning Commission before it makes its recommendations to the city council. Three options are likely to be reviewed – R20, R40 and R65 (see definitions below) – at the Planning Commission’s next meeting, Monday June 25 from 7:00 PM-11:00 PM at the Lafayette Parks & Recreation Sequoia Room, 500 St. Mary’s Road, Lafayette. The city council will take up this matter at a later date.

(Be aware that each house can have the option of an attached or separate Accessory Dwelling Unit (“ADU”) on the same lot– up to 2 bedrooms, max of 1200 square feet – see the link here) http://www.lovelafayette.org/Home/ShowDocument?id=3913

  • **R20 = 1 single family residence per 20,000 square feet (theoretical max. 48 houses + 48 ADU’s on Deer Hill’s 22 acres)
  • R40 = 1 single family residence per 40,000 square feet (max. 24 houses + 24 ADU’s)
  • R65 = 1 single family residence per 65,000 square feet (max 14 houses + 14 ADU’s)
  • LR-5 (1 house per 5 acres) was the zoning approved by the city council in 2010 for 4 houses.
  • Open Space is another possibility.
  1. The Housing Accountability Act authorizes the city to deny the apartments application because of any or all of the five significant, unavoidable public health and safety impacts identified in the apartments EIR and certified by the city council in 2013. If the city moves promptly and brings the zoning into conformance with the General Plan, that will create an additional ground for denial of the apartments project.

BAAQMD Denies It Said Deer Hill Is Safe

Article from: Scott Sommer, Environmental Lawyer, Former Member Lafayette School Board

The Yes campaign has been using an email from an Environmental Planner at the Bay Area Air Quality Management District (BAAQMD), Alison Kirk, sent Tuesday May 29 at 4 pm, as a purported vindication of air quality for the public areas at Deer Hill that would be purchased under Measure L by the City at a cost of $3M plus 50% of cost overruns and a cancellation of developer fees. There is even a Nextdoor post from a supporter of Yes claiming “According to BAAQM [sic], Deer Hill Site is Safe for Children”, citing an EBT article referring to that email and the email itself, neither of which said the site is “safe”.

So Susan Candell and I followed up with that planner, and her supervisor, David Vintze, Manager, Planning and Climate Protection at BAAQMD. Here’s what we found out:

ALTERED PROJECT DESCRIPTION. BAAQMD’s May 2016 Planning Healthy Places manual has a map with purple zones along freeways and major traffic corridors that are marked as areas of elevated air pollution and for application of “Best Practices to Reduce Exposure to Local Air Pollution”. This includes: “plan sensitive land uses farther from localized air pollution sources…one of the most effective health protective strategies that can be implemented to protect children and other vulnerable populations from the harmful effects of air pollution.”

It has been pointed out that part of the public areas on the site plans in the Homes EIR and for Ordinance 641 are in that purple zone along Pleasant Hill Road (PHR). The developer consultant’s report dated April 2018 included that EIR plan, and drew a dashed line starting at the trail about 50 feet in from PHR encompassing most of that public area, referring to it the “Project Description” on p.3 and Fig. 1. That description overlaps with the BAAQMD’s purple zone.

However, later in May, after that April 2018 report was criticized, the developer’s consultant sent a DIFFERENT diagram to BAAQMD, editing out all public areas in the purple zone and presenting two boxes purportedly 225 feet from PHR as the “Project” (we also believe the distances are exaggerated). The public areas between PHR and the boxes were NOT shown or referenced. Ms. Kirk did not notice the deletion, and was therefore induced to state in her email that “the Project is ADJACENT to areas recommended for ‘Best Practices’ and ‘Further Study’” (emphasis in original).

Anyone looking at the public areas on the actual site plan in the EIR can compare and see the deletion. Now that Ms. Kirk and Mr. Vintze are aware of the deletion, BAAQMD has changed its position to “Yes” the “public areas depicted on the EIR project description…include areas recommended for ‘Best Practices’ in BAAQMD’s Planning Healthy Places and is in the purple zone on the PHP online maps”. That corrects the second half of the 5/29 email the developer obtained by not showing the public areas within the purple zone to Ms. Kirk.

Read More

Letter to the City Council from Devra Davis, PhD

Devra Davis, who was a Lead Author of chapters of the Intergovernmental Panel on Climate Change—the group awarded the Nobel Peace Prize with Al Gore in 2007, recently sent a letter to the Lafayette City Council regarding the proposed sports field.

Click here for the full letter

It’s worth reading the full letter, but here are some of the points made in the letter:

I have reviewed the April 2018 Deer Hill Park and Sports Field assessment prepared by Placeworks. The following issues with the methodology are apparent:

  • Ultra fine particulate matter that contains toxic heavy metals that are especially hazardous to young developing brains and bodies was not considered;
  • No onsite monitoring data was utilized, either as a basis for the report or as a check on the proposed result
  • Available PM 2.5 data from comparable sites monitored by air districts in the Bay Area or southern California was likewise not consulted
  • The reported conclusion of increased PM 2.5 of 0.44 micrograms/M3 is extremely low and does not appear reliable for a location with vehicle traffic reportedly of 12,000, 36,000, and 185,000 per day on the north, east, and south- this figure should have been verified and compared with on site or available offsite PM 2.5 monitoring data.
  • The study does not include a focus on exposure of children to particulate matter and other vehicle generated contaminants during peak periods such as after-school weekdays use when commuter traffic on the nearby corridors is at a peak
  • The averaging methods applied understate the risk considerably. Thus, an annual average for the site was calculated that appears to include weekends and intraday periods when traffic is low necessarily resulting in a lowered result
  • Further, there is no analysis for asthma or diminished lung capacity. In particular, to the extent the report assumes that high intensity children’s activities for 2 hours per day is safe in this environment, no medical or regulatory authority is cited; to the contrary, available international and U.S. medical studies contradict this conclusion.

It is unfortunate that the discussion has been framed as one of debating or awaiting proof of harm to our children, before taking steps to prevent exposing them to conditions that have been established in extensive studies to place them at risk. The idea that you would put a field for children to play in an area where the adjacent residences are required to have filters for the air inside the house, and warnings to residents of exposure to particulate matter if the windows are opened, is one of the most unwise and imprudent instances of urban planning I have ever encountered.

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.