Lafayette voters have watched in recent months as lawyers for Deer Hill developer O’Brien Land challenged the right of Lafayette Councilmember Susan Candell to deliberate and vote on the controversial 315 apartments project O’Brien resubmitted last year after defeat of Measure L. The project proposes 315 apartments at the gridlocked Pleasant Hill and Deer Hill intersection by Acalanes High School.
Councilmember Candell took public positions on traffic and air quality issues on the application in 2012, and during the Measure L and City Council campaigns. She received the most votes in the November 2018 election.
O’Brien Land claims that the Councilmember’s positions impact the developer’s right to a fair and impartial hearing before the city. To be sure, all applicants and opponents of land use projects have a Due Process right to fair and impartial decisionmakers. But do positions taken by elected officials prior to or during campaigns disqualify them from voting on the very issues the voters chose them to decide?
The California Supreme Court resolved this issue in a 1975 case involving the City of Fairfield and councilmembers elected after campaigning against a commercial development with traffic and pollution issues. The developer filed suit charging bias and denial of a fair hearing after the new councilmembers declined to disqualify themselves.
Dealing with a discovery issue, the California Supreme Court rejected the challenge. Agreeing with the high courts of other states, the Court ruled:
“A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views on matters of public importance…. Campaign statements, however, do not disqualify the candidate from voting on matters which come before him after his election…[I]t would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn…duties. Such is not the bias or prejudice on which the law looks askance.”
The Supreme Court stated further: “No member of the city council was disqualified because he had expressed an opinion or taken sides on the merits of the [development] whether during an election campaign or at any other time…the voters were entitled to know the views of the candidates, who had a right, and perhaps a duty, to state their positions.”
The Court disapproved a lower court’s contrary ruling which “effectively thwarted representative government by depriving the voters of the power to elect councilmen whose views on this important issue of civic policy corresponded to those of the electorate.”
In 2018, the First Appellate District ruled “The City Improperly Interfered with the Referendum Process” involving Deer Hill, a position the 2016 city council took with O’Brien Land’s support. Now O’Brien Land is attempting to silence any Councilmember that disagrees with it, even challenging Councilmember Candell’s right to speak as a private citizen.
City Council should support Councilmember Candell’s right to vote. The California Supreme Court has decided the issue.
Article by Scott Sommer, a Lafayette citizen, environmental attorney, and former member and president of the Lafayette School Board. The City of Fairfield decision can be found at 14 Cal.3d 768, quotes from pp. 780-782. This appeared in the Lamorinda Weekly Public Forum on October 16, 2019.
If you were a city council member, how would you spend $230,000?
Follow the Money: LPIE (Lafayette Partners in Education) placed a half-page ad in the Lamorinda Weekly May 29, thanking over 130 businesses, parents, community members and non-profit organizations for helping to “power” LPIE’s fundraising efforts. The same week the Lafayette City Council spent $230,000 on an art project – paid 100% by developer fees, according to the city, and based on a city art ordinance.
As far as we are aware, none of these funds can be used on higher priorities, identified by the majority of residents:
- the enhancement of school programs
- the reduction of traffic congestion
- a larger contribution to fire and safety prevention programs
- the creation of Lafayette-based jobs rather than yet more housing downtown.
Why not put developer fees into a general fund, so that resident priorities – including “green hills and great schools” – are properly addressed?
Parking Eliminated: The art project will eliminate 19 critical parking slots on the south side of the BART station.
Really, what are they thinking?
We all must stay informed, attend Council and Commission meetings, submit letters and emails in order to cause the Council to make fiscally responsible decisions.
CBS Local News covered the story, watch the video:
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 firstname.lastname@example.org 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 email@example.com
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.
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
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
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 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:
- The Opportunities and Constraints analysis in 2006, together with the average slope calculation in 2008, showed 14 homes as maximum for the property.
- 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.
- 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.