Conflict of Interest: Traffic Impact Study

April 2, 2020

Save Lafayette,
3220 Ronino Way,
Lafayette CA. 94549

Attached: Terraces of Lafayette Traffic Impact Study Report Review

Re: Terraces of Lafayette Updated Traffic Impact Study

Dear Planning Commissioners

As you are aware, Save Lafayette has expressed serious reservations in the past
about using TJKM to undertake an updated traffic study for the Terraces, because
of its conflict of interest in having been previously hired by the developer. Since
City staff showed no interest in correcting this situation, Save Lafayette decided to
hire an independent traffic consultant to undertake a peer review of the January
2020 updated report prepared by TJKM.

Save Lafayette has hired Elite Transportation Group, whose principals – Lawrence
Liao and Lin Zhang – are highly experienced and respected traffic engineers, with
clients such as BART, SFMTA, the Federal Highway Administration, and
Caltrans, as well as various Bay Area cities. A copy of the peer review memo
prepared by Dr. Zhang is attached for you to read.

You will see from the memo that it raises numerous significant issues and
shortcomings with the TJKM report, all of which will need to be addressed before
it can be accepted and included in the supplemental EIR for the Project.

Following are some of the major issues raised by Dr. Zhang in his memo:

  • The Delay Indexes used by TJKM for Pleasant Hill Road and Highway 24
    are based on outdated (2013) information and therefore significantly under-
    estimated. Based on the correct data, the project would have an un-
    mitigatable significant adverse impact on Pleasant Hill Road.
  • The emergency vehicle preemption (EVP) system recommended by TJKM
    as a mitigation measure to offset the impact of the project on emergency
    vehicle access will NOT work during congested or peak times. This is
    therefore also a significant adverse impact that cannot be mitigated.
  • The impacts during construction have incorrectly assumed an 8-hour
    workday and therefore significantly understate the impacts of dump truck
    traffic on local streets during the massive grading that would be required.
    Yet another significant adverse impact.
  • The impact of the significant reduction in the size of the passenger pick-up
    zone on the west side of Pleasant Hill Road, south of Deer Hill Road has not
    been considered.
  • The safety conflicts between the proposed bike lane, trap lane, loading zone
    and entrance driveway on Pleasant Hill Road have not been adequately
  • The property’s location in a VHFHSZ fire zone and the proposed project’s
    impact on evacuation routes and emergency first-responder access have not
    been considered and should have been. Also, the impacts of PG&E power
    shut-offs have not been considered. These are all serious safety
    shortcomings in this new reality of high fire risk.
  • The impact of the project on the intersection of Deer Hill Road and Laurel
    Drive has not been considered.

In conclusion, the TJKM report is inadequate and needs to be revised before it can
be accepted as part of the EIR. Alternatively, you can deny the project based on
the unmitigable issues raised in the Elite memo. We therefore request that you
allow fifteen minutes for Dr. Zhang and his colleague to present their findings at
the next Commission meeting on April 27.

In addition, as you know, a project can be denied if there is just one significant
adverse impact that cannot be mitigated. There are numerous un-mitigable
problems with The Terraces. Additional new and essential EIR related material
that is being prepared by Impact Science should be made available for the public to
review at least a month before any further meetings are scheduled on the Terraces
proposal. Many of these are significant health and safety issues – this project
would literally put people’s lives at risk. Lafayette is allowing plenty of new
housing elsewhere in more suitable locations – this project is not worth the risks
and should not be rushed through without the opportunity for full public

Michael Griffiths
President, Save Lafayette

Attached: Terraces of Lafayette Traffic Impact Study Report Review

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Bulletin: We Need You This Tuesday Night

BULLETIN: We Need You This Tuesday Night

                     Lafayette City Commissions to Review
        “The Terraces”, a Massive 315 Apartment Development
                7:00 P.M. January 21, 2020 Conference Room,
                            next to  the Lafayette Library
            Come to the meeting this Tuesday, January 21st 
          Invite your Friends!    Stay informed!    Participate!
Learn about the  potential increased traffic impacts and health, wildfire and safety effects.
FACTS:  The proposed complex is at the corner of Pleasant Hill road and Deer Hill Road, adjacent to Highway 24 and diagonal from Acalanes High School. At this congested intersection this is what they want to build:
  • 14 apartment buildings consisting of 315 apartments
  • Leasing office and clubhouse
  • 550 parking spaces
  • Removal of 92 trees (60+ HERITAGE TREES ALREADY           REMOVED WITH CITY APPROVAL!)
  • 500,000 cubic yards of earth movement
  • A new state law limits the project review to a maximum of 5 public meetings over a max of 90 days.
Traffic Safety:  3000 more daily car trips
Construction:  80,000 dump truck trips over months of construction causing even more traffic backup

Firestorms:  Site is at the epicenter of the City designated Very High Fire Hazard Severity Zone

Law:  Legality of the project between the City and the developer complex and unresolved
Dangerous Precedent: Which would potentially preclude lawsuits or
referendums against future massive developments anywhere in the city
Health:  Air quality impact on sensitive receptors, seniors and children
Overcrowding:  Significant impact on enrollment in Lafayette schools
Send an email to the city council before noon 1/21/20 expressing your position

Planning Commission and Transportation Circulation Commission Review of forthcoming Traffic Study for Terraces 315 Apartments Application

January 8, 2020

Mayor Mike Anderson
Lafayette City Council
3675 Mt. Diablo Boulevard #210 Lafayette, CA 94549

Re: Planning Commission and Transportation Circulation Commission Review of forthcoming Traffic Study for Terraces 315 Apartments Application

Dear Mayor Anderson and Members of the City Council:

At the Update on the Terraces of Lafayette Project, City Council agenda April 29, 2019 Item 6A, in response to considerable public comment, the City Council directed the hiring of Impact Sciences to perform further analysis of the draft Addendum dated December 18, 2018 prepared by the consultants directly chosen and hired by developer O’Brien Lands. The developer submitted documents from First Carbon Solutions, including its Appendix F “Updated Traffic Study” prepared by TJKM Transportation Consultants (“TJKM”).

Specifically, the City Council adopted the following on April 29, 2019:

ACTION: It was M/S/C (Burks/Gerringer) to direct staff to proceed with hiring Impact Sciences to perform further analysis and review the draft Addendum prepared by the previous consultant and; to return to the Council with a decision on Supplemental versus Addendum, as well as the new studies that support it. Vote: 4-0- 1 (Ayes: Anderson, Bliss, Burks, and Gerringer; Noes: None; Absent: Candell). (emphasis added)

The staff report to the City Council for April 29, 2019, page 3 of 4, stated:

(2) The adequacy of the Addendum submitted by the applicant in meeting the requirements of CEQA. As discussed below, Impact Sciences determined that the Addendum submitted by the Applicant is not adequate and requires substantial revision…[Section (3)]… Necessary changes include new or significant revisions to technical studies to analyze the Project’s transportation, air quality, and noise impacts…using methodologies and assumptions recommended by Impact Sciences. Some of the conclusions made were not accompanied by sufficient evidence or justification… (emphasis added)

Mayor Mike Anderson City Council Members January 8, 2020

The Action by the City Council, and the public perception that was established, was that there would be an independent review of the developer’s submission, as referenced above. Nowhere was it stated that the developer’s hired consultant, TJKM, technically out of the City’s control and retention, would monopolize the review and revisions required on transportation and public safety.

Rather than follow the letter and spirit of the City Council’s action on April 29, 2019, Planning staff approved placing TJKM in charge of reviewing its own Appendix F “Updated Traffic Study.” To our knowledge, this action has never been publicly reported, placed on the City’s website, or discussed in any public hearing of the City Council from April 29, 2019 to date.

As the original DEIR on this project identified, there were multiple significant unavoidable public health and safety impacts of the 315 apartments project. Likewise, Impact Science reported to the City in connection with the April 29, 2019 City Council hearing, that the developer’s submission was “not adequate and requires substantial revision”. No exception was stated to the City Council and public on April 29, 2019 that the traffic component was adequate or that TJKM, now hired by the developer, should control or preempt the review and new studies directed by the City Council.

It is both a violation of the City Council Action on April 29, 2019 and common sense to allow the developer’s hired traffic consultant, TJKM, to review its own Appendix F “Updated Traffic Study.” A proper independent traffic consultant should have been used and now must be hired.

I would ask the City Council to consider the obvious conflict in having TJKM review its own Appendix F Updated Traffic Study. Essentially, TJKM is being asked to critique its own work, placing it is the conflicted position of rejecting development objective of the developer that hired it and potentially maligning its own conclusions.

It is a well-documented provision of Administrative Law that due process suffers if a person or entity is the arbiter of their own position. As famously said in the Federalist Papers No. 10 in 1787, written by James Madison: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” That is not just an interesting historical observation, it is a quotation directly cited by the U.S. Supreme Court in due process cases (Caperton v. A.T. Massey Coal (2009) 556 U.S. 868, 876 and authorities cited therein) and the California Supreme Court (Today’s Fresh Start, Inc. v. Los Angeles County (2013) 57 Cal. 4th 197, 223-224). Refer also to Haas v County of San Bernardino (2002) 27 Cal. 4th 1017, 1029 [person “presumed to favor its own rational self- interest”]; Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal. App. 4th 1012, 1027 [“A person cannot be a judge in his or her own cause.”]; Golden Day Schools, Inc. v. State Dept. of Education (2000) 83 Cal. App. 4th 695, 710 [department head improperly “in the position of judging the correctness of his own decision.”] (emphasis added).

These cases reflect the improper appearance created by allowing an entity to purportedly conduct an impartial review of its own work. The City Council should take this to heart and direct staff to

Mayor Mike Anderson City Council Members January 8, 2020

comply with its April 29, 2019 Action and have a traffic consultant independent of O’Brien Land retained to perform this important analysis that directly affects public safety. Any biased report from TJKM will be both legally defective and unsound as a matter of public policy.

Thank you for your consideration. Respectfully submitted,

Michael Griffiths

President & Co-Founder SAVE LAFAYETTE

Cc: Lafayette Planning Commission (all members)
Lafayette Transportation and Circulation Commission (all members)

TJKM Objection Letter to Council and Commissions V2 010820

The city council once again is trying to push the 315 Apartment development across from Acalanes High School along by placing it on the 12/9/2019 consent calendar without any public comment.

Dear Friends,

Below are some suggested arguments for you to include in your letter or email to the City Councilmembers or to speak about during the Public Comment section starting at 7:00 PM this coming Monday, December 9th in the Library.

Send your letters before noon on Monday, December 9th to:

Lafayette City Council

c/o Joanne Robbins

Goals for Monday’s City Council Meeting: The proposed Third Amendment to the Tolling Agreement should be:

pulled from the consent calendar,
a more complete staff report submitted to the public,
place topic on a future agenda so that citizens can present their views.
Alternatively, it should be summarily rejected.

1. Ignoring Legal Arguments:

Save Lafayette and Lafayette’s residents have already presented multiple legal arguments against the Terraces application, particularly in April and May 2018, with an emphasis on the inconsistency with the General Plan and the zoning of the property

2. Overlooking Legal Flaws:

There are multiple legal flaws in the developer’s theory that processing of the application and that the applicable General Plan designation and zoning were indefinitely frozen effective January 22, 2014.

3. Snubbing Environmental Impacts:

The developer’s CEQA application of July 29, 2013, did not substantively address the actual data and environmental impacts, instead of proceeding on an unsupported theory of discrimination.

4. Disregarding Statute of Limitations:

The standard of review on CEQA documents is based on data and substantial evidence. The record amply supports the original EIR certified by the City in 2013. Extending multiple extensions of time over a period of what will soon be 7 years for what should have been a 90-day statute of limitations is absurd, particularly when the weakness of the O’Brien Land petition is considered.

5. Misleading the Public:

The City is now proceeding with a review of a supplemental EIR process (which we will address elsewhere) based on the EIR certified in 2013. The finality of the 2013 document should be established. It is wasteful and misleading to the public to invest time and money, and public attention, in a document which is not final.

6. Threatens and Bullies the City:

The spectacle of these multiple extensions of up to 7 years to a developer who, without merit, continually threatens and bullies the City is to be contrasted with the City’s approach to issues raised by ordinary Lafayette citizens. In Save Lafayette Trees v. City of Lafayette (2019), the Court rejected the City’s attempt to argue for a special 60-day limitation on challenges by its own citizens. Perhaps the Council would like to explain why it does not afford its own citizens the deference given to O’Brien Land.



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.