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

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.

State and local governments are moving to suppress and curtail citizen’s rights for local control over their neighborhoods. They are legislating to ignore vital local protections and deny citizens their right to vote. Zoning and environmental codes have been enacted to help manage growth and prevent the ill-effects of unconstrained construction. Don’t let government officials use their misconceived plans to allow big real estate developers to laugh all the way to the bank at the expense of your neighborhood. We can’t just build our way out of the housing crisis, we need sensible plans for balanced growth.

Please join Save Lafayette’s fight protect our neighborhoods from Big Real Estate and overreaching government! Come to the courthouse on Friday June 24, 2016 at 9:00 am to show your support and protect your voting rights and hit the Donate button on the right side to help us pay for this fight!

Superior Court of Contra Costa County
725 Court St.
Room 312, Dept. 34
Martinez, California

Please help spread the word by sharing this video https://youtu.be/Nx_wGFF4Lws!

In late 2015, 2300 Lafayette residents – 39% more than required – signed Save Lafayette’s petition in just 24 days to vote on the Homes at Deer Hill development. This was only the second ballot petition in Lafayette’s history.

Petition signers wanted a chance to vote on whether the development’s purported benefits outweighed the significant impacts of traffic congestion, air quality and violation of the City’s Hillside and Open Space ordinances. The County Registrar and City Clerk both verified there was an adequate number of Lafayette voter signatures to qualify for a ballot.

Despite all of the above, at a City Council meeting just before the holidays in mid December, the City Attorney recommended that the Council reject the Save Lafayette petition “because it would create an inconsistency between the newly amended General Plan and the previous zoning”. Remarkably, the attorney memo did not actually explain what the purported conflict specifically was. Without any input from Save Lafayette, the City Council immediately accepted the recommendation and refused to put the project on a ballot, thereby denying the rights of Lafayette voters.

Save Lafayette’s attorneys and land use advisors do not believe there is a conflict and that the voters’ constitutional rights should be respected, even if it is inconvenient for the deal struck between the City and the Developer. It is our position that the General Plan map residential zoning is consistent with the APO zoning under Ordinance 6-1004 (g and h) that would result if the voter referendum passes. A detailed explanation and copy of the petition will be posted on our website for all to read.

The City Attorney has not responded to Save Lafayette’s request for clarification on this matter, leading us to conclude that the City is trying to run the clock out on the time allowed to file a lawsuit, which would force the City to respect voters’ rights.

Therefore to preserve our constitutional right to vote on this matter, Save Lafayette will bring suit against the City, challenging its ruling on the petition. We have some of the best legal minds and land use experts on board and 100% of the funds collected go towards this effort. We need your support to see this suit through to defend the democratic process!

YOU HELP SAVE LAFAYETTE RAISE THE $25,000 FUND TO COVER LEGAL COSTS TO BRING THIS ACTION

Please click on the “Donate” button on the right side of this page or send a check to

Save Lafayette
3527 Mount Diablo Boulevard, #177
Lafayette CA 94549

DO NOT LET BIG DEVELOPERS RUIN OUR LOVELY CITY!

LET’S ACT BEFORE IT’S TOO LATE AND SEND A STRONG MESSAGE TO THE CITY COUNCIL FROM THE RESIDENTS OF LAFAYETTE!

Save Lafayette has decided to withdraw its CEQA lawsuit challenging the Final Environmental Impact Report for The Homes at Deer Hill.  On December 14, 2015, after receiving certification from the County and the Lafayette City Clerk that 1809 Lafayette voter signatures were valid and that the referendum qualified for the ballot, the City Council nevertheless declined – on the advice of city attorney Mala Subramanian – to place the measure on the ballot and schedule the election.

Save Lafayette vigorously disputes the council’s disregard of the voters’ will and is considering a further legal proceeding, as the CEQA issue is now secondary to whether the city will allow the Save Lafayette measure to be voted on by the electorate. We are not giving up or going away. Our full commitment to maximizing open space and minimizing traffic in regard to this project continues unabated – we simply want to pursue the most promising avenues. Stay tuned for further updates on our activities as we continue our efforts to achieve these goals and to ensure that the community has a strong, representative voice in the decision process and the ultimate outcome of The Homes at Deer Hill project.

Over 10% of Lafayette’s voter signed our petition within the 30 day period required by law to challenge a legislative action. This is a major achievement that sends a loud message to the City that the citizens would want to hit the “pause” button on rapid growth. While this milestone is significant, there are many hurdles to overcome.

The City will now need to either reverse its approval of “The Homes at Deer Hill” project, or put the project to a simple “yes or no” referendum decision of Lafayette voters, most likely in March 2016.

While Save Lafayette is moving forward on the voter ballot, we will continue to negotiate with the representatives of the developer and the property owner in an effort to to protect all interests and to see how we can retain maximum open space with minimum traffic impacts. These efforts take time and money, more so now as we are entering a much more detailed phase than that of the petition.

As a non-profit organization of volunteer Lafayette residents with significant legal and operating expenses, Save Lafayette is asking for your financial support to sustain this campaign on your behalf. Please click on the “Donate” button on the right side of this page. If you would like to consider a major donation to truly preserve open space, please contact Mike Griffiths – your pledge could be the one that makes that difference!

There are lot of development projects already in progress in Lafayette. We want to get a less impactful outcome at the Deer Hill Road site and work with the city to assure that going forward, development will be in balance with the City’s infrastructure capacity.

After a 24 day collection period, Save Lafayette’s petition drive has delivered the signatures of 2300 Lafayette voters to the City clerk and the signature collection period has closed. This represents well over the 10% of Lafayette’s registered voters that we required; the petition to bring the “Homes at Deer Hill” resolution to a referendum leaves little doubt as to what voters want: slower growth, less development, more open space, less traffic and to be have their wishes heeded by the City. The petition, once validated by the County and City, will provide the City the opportunity to either rescind their prior approval of the project or to provide the community with the opportunity to vote on this huge project. 

As residents are all too aware, Lafayette has experienced rapid growth in recent years, by a factor of six over historical rates. The overcrowded schools, the BART parking lots filling earlier and earlier, the congested shopping areas and long traffic delays drastically reduce the city’s semi-rural character and run counter to what folks love about living here.

Save Lafayette’s near-term goal is to give the community a voice in the process and to achieve a better use of the “Homes at Deer Hill” site consistent with the City’s General Plan, Hillside Ordinance and community identity. But our fight won’t end there. Lafayette’s growth needs to be kept aligned with its transportation capacity, school capacity and not to the detriment of its hillsides and vistas. This initial effort was sucessful and we are very grateful to our donors and to all of the petition gatherers and signers for volunteering their time. However our continuing legal costs need your support, please click the “Donate” button on our site so we can continue to give voice to the wishes of Lafayette’s citizens.