Author: Save Lafayette

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.

Save Lafayette wins Important Court Battle

Judge rules that city acted illegally to block vote

Recently the California State Court of Appeals ruled in favor of Save Lafayette and against the City of Lafayette and reversed a previous ruling from a lower court.  The full text of the decision is attached.  Here are two articles from bay area papers that mention the decision:

https://calcoastnews.com/2018/02/court-provides-tools-thwart-run-away-city-council/

In reaction to this loss, the City Council has rushed to put a June vote on the ballot.  We’ll have lots more about that soon.  Meanwhile here is the full text of the ruling for anyone interested.

Save Lafayette v. City of Lafayette, A149342 – Feb 21 2018

Save Lafayette

June and July Updates

BREAKING NEWS: Save Lafayette continues to have a major impact on transparency, accountability and good government in Lafayette.

June 14, 2017: The California Court of Appeal issued a temporary stay of the City’s implementation of the Homes at Deer Hill project and the ordinance that approved the project. Save Lafayette has appealed the City’s refusal to place the certified referendum on a public ballot in violation of the people’s constitutional and statutory referendum power and right to vote. During briefing for the appeal, Save Lafayette learned that the City was continuing to work on the project and petitioned the Court of Appeal to prevent the City from proceeding.

July 25, 2017: After considering further arguments, the Court of Appeal extended the stay for the duration of the appeal. As a result, all work on the Deer Hill project must stop until the appeal is decided. Save Lafayette also has filed its opening brief on the merits of the appeal.

July 31, 2017: Two of the largest projects pending before the City – the 99 unit Woodbury condominium project (one of the largest in Lafayette history) and the proposed rezoning of 5.75 acres for the development of a major cancer counseling office next to the Reservoir – are being represented by the firms of Tom Chastain, an architect who sits on the Lafayette Planning Commission, and Bob Cleaver, an architect who is also chair of the Lafayette Design Review Commission. Save Lafayette has focused on a series of land use projects, where architects appointed by the City Council to the Design Review and Planning Commissions are appearing before their own and other City commissions, contrary to provisions of the California Political Reform Act, Government Code 87100. These facts – the inherent conflicts of interest and the ‘pay-to-play’ aspect to Lafayette’s land use process – have been revealed by Save Lafayette supporters, who will continue to take an active role as this issue is debated before the City Council. One Design Review Commissioner was fined in 2008 and another commissioner is currently under investigation by the California Fair Political Practices Commission that imposed the fine.

We will continue to keep you informed on these and other events in our effort to bring transparency, accountability and good government to Lafayette.

Court temporarily blocks upscale homes in Lafayette

As reported in the East Bay Times:

A San Francisco appeals court judge has temporarily blocked the city of Lafayette from work on the approved Homes at Deer Hill project while it considers an appeal from the group Save Lafayette. A temporary stay has been issued barring Lafayette from implementing an ordinance allowing the Homes at Deer Hill project and any further work on the high-end housing development.


PUBLISHED: June 27, 2017 at 9:52 am | UPDATED: June 27, 2017 at 9:53 am
LAFAYETTE — A state appeals court has blocked the approved Homes at Deer Hill development from moving forward.

First Appellate District court Judge Ignazio J. Ruvolo issued a temporary stay June 14 barring the city from implementing an ordinance allowing the residences and any further work on the high-end housing development.

The city can challenge the order, but it must do so by June 29, according to a court document.

The ruling comes in response to an appeal by the group Save Lafayette of a Contra Costa Superior Court judge’s dismissal of a lawsuit against the city of Lafayette last year. The group is challenging the city council’s rejection of a referendum petition asking that voters be allowed to approve or reject the Deer Hill development.

Save Lafayette spokesman Michael Griffiths said the group is concerned that the city is issuing permits and making related approvals despite a pending appeal.

“The city’s proceeding with all due haste although they’re potentially in violation of the election code because the lawsuit isn’t resolved,” Griffiths said.

State law requires petitioners seeking to approve or reject an ordinance or other regulation collect signatures from 10 percent of registered voters within 30 days.

Save Lafayette gathered more than 2,300 signatures, 1,809 of which were verified by county elections officials and certified by the city clerk. But city leaders decided in December 2015 that the petition was invalid because it would reverse a zoning change made to the development site, and create a conflict with Lafayette’s amended general plan.

Noting the judge granted the temporary stay without having received opposition from the city, City Attorney Mala Subramnian said Lafayette plans to oppose the group’s appeal.

“Save Lafayette has not adequately demonstrated a threat of irreparable harm sufficient to merit the imposition of a stay nor that the appeal has merit,” she wrote in an email.

Griffiths said the group took issue with the city’s reasoning for the denial, and said it was taking no position on the project itself.

“Our whole basis for this appeal is that the voters have a constitutional right to vote on this. The way the city went about denying the referendum, we feel, is not appropriate.”

The stay comes on the heels of a settlement between the city and the San Francisco Bay Area Renters’ Federation (SFBARF), which had sued Lafayette over the construction of the 44 homes pitched on a hillside above Highway 24.

The O’Brien Land Company had originally proposed 315 moderate-income apartments at the site before striking a deal with the city to build the residences and several public amenities there.

The City of Lafayette proposed sports field at Highway 24, Pleasant Hill Road, and Deer Hill may expose Lafayette children to air pollutants exceeding state standards.

As part of the Homes at Deer Hill project approved by the Lafayette City Council in 2016, the City agreed to spend $2 Million for a public sports field located in the northwest corner of the intersection of the 24 Freeway and Pleasant Hill Road, in an area partly within and partly beyond 500 feet of the freeway. The agreement reportedly was generated in a closed door meeting between the City Manager and the developer. Using $2 Million of public money, the City would put a new sports field including parking in a location surrounded on three sides by heavy rush hour traffic and a major source of toxic air contaminants and particulate matter, with the expectation that a primary use would be for children’s sports teams including afternoon and weekend practices and games. No consideration or study was given to the issue of the air pollution and potential health impacts on the children, pregnant mothers, and other sensitive populations that would use the field on a regular basis.

In doing so, the City Council and staff ignored citizen comments and multiple red flags. As the Acalanes High School and Lafayette School Districts know, since 2003 State law (Senate Bill 352, 2003 Legislative session; Education Code 17213(c)(2)(C)), citing the risks of forty types of air pollutants generated by freeway traffic, has prohibited school districts from placing new schools and facilities within 500 feet of a freeway. Proven known, significant, adverse health impacts include higher rates of asthma, respiratory disorders, heart attacks, strokes, and lung cancer. For the last decade California air quality officials have warned against locating preschools and homes within 500 or 1000 feet of freeways. Multiple adverse respiratory health effects studied by the USC Environmental Health Center were cited by the Los Angeles Times in its article “L.A. Keeps Building Near Freeways, Even Though Living There Makes People Sick” (March 2, 2017). The medical literature on exposure to air pollutants is extensive and uniformly negative, particularly as to effects on children.

Paradoxically, in approving the development, the City accepted a project report requiring MERV air filtration systems in all residential units, and a written disclosure by the developer to residents that they are at risk of exposure to air pollutants if they open their windows. The EIR for the project stated the adverse health impacts of the freeway air pollution on the residents of the Homes would result in an onsite cancer risk at a level of 63, against the allowed state standard of 10; a cancer risk to residents over 6 times greater. So how did the City Council approve a sports field at a cost of $2 Million that would expose children to multiple toxic air contaminants without any safeguards or warnings whatsoever- an act that would violate State law if done by a school district?

The Bay Area Air Quality Management District (BAAQMD) has been issuing guidance on these risks for years- it publishes a “Planning Healthy Places: A Guidebook for Addressing Local Sources of Air Pollutants in Community Planning” that was ignored by the City. The BAAQMD Guidebook tells us that “air pollution levels are highest in close proximity to air pollution sources such as freeways, busy roadways …including toxic air contaminants (TAC), fine particulate matter (PM)…Children and infants are among the most susceptible to air pollution due to their developing lungs, higher inhalation rates, narrower airways, and less mature immune systems.” The Guidebook further states: “Other sensitive populations include the elderly, pregnant women, and those with respiratory or cardiovascular illnesses affected by air pollution…we need to be mindful that locating sensitive populations to close proximity to local sources of air pollution (such as freeways) can expose people to harmful air pollution.”

BAAQMD also produces a map, part of which is attached, depicting the field site and parking area within and adjacent to the areas shown in purple on Highway 24 and Pleasant Hill Road. The purple is for areas in which the BAAQMD has found “elevated levels of air pollution” and estimates that state and federal air quality standards can be exceeded, and for which it recommends “Best Practices to Reduce Exposure”. This includes “Health Protective Distances” for which Bay Area cities should “plan sensitive land uses as far from local sources of air pollution as is feasible.”

So what should be done? The City Council was not “mindful” of putting a children field use next to a freeway, did not evaluate the risk, nor did it consider “Health Protective Distances” and planning this sensitive use far away from a major source of toxic air contaminants. It should halt the fields project immediately. Concerned citizens, and especially parents of children that would be at risk, should demand a complete, independent, and professional analysis of the health risks, including appropriate sampling and medical evaluation or, alternatively, that the City reallocate the $2Million to a more suitable location in accordance with the BAAQMD recommendations.

It is UNACCEPTABLE that our City ignored these risks and the recommendations of qualified agencies such as BAAQMD. Our children deserve better!  This project requires further study and public input.

This piece was written by Lafayette citizens Susan Candell, Scott Sommer, and Paul Melmed, with input from members of Save Lafayette.

Air Pollution Map