Author: 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