Tag: Lafayette

BAAQMD Denies It Said Deer Hill Is Safe

Article from: Scott Sommer, Environmental Lawyer, Former Member Lafayette School Board

The Yes campaign has been using an email from an Environmental Planner at the Bay Area Air Quality Management District (BAAQMD), Alison Kirk, sent Tuesday May 29 at 4 pm, as a purported vindication of air quality for the public areas at Deer Hill that would be purchased under Measure L by the City at a cost of $3M plus 50% of cost overruns and a cancellation of developer fees. There is even a Nextdoor post from a supporter of Yes claiming “According to BAAQM [sic], Deer Hill Site is Safe for Children”, citing an EBT article referring to that email and the email itself, neither of which said the site is “safe”.

So Susan Candell and I followed up with that planner, and her supervisor, David Vintze, Manager, Planning and Climate Protection at BAAQMD. Here’s what we found out:

ALTERED PROJECT DESCRIPTION. BAAQMD’s May 2016 Planning Healthy Places manual has a map with purple zones along freeways and major traffic corridors that are marked as areas of elevated air pollution and for application of “Best Practices to Reduce Exposure to Local Air Pollution”. This includes: “plan sensitive land uses farther from localized air pollution sources…one of the most effective health protective strategies that can be implemented to protect children and other vulnerable populations from the harmful effects of air pollution.”

It has been pointed out that part of the public areas on the site plans in the Homes EIR and for Ordinance 641 are in that purple zone along Pleasant Hill Road (PHR). The developer consultant’s report dated April 2018 included that EIR plan, and drew a dashed line starting at the trail about 50 feet in from PHR encompassing most of that public area, referring to it the “Project Description” on p.3 and Fig. 1. That description overlaps with the BAAQMD’s purple zone.

However, later in May, after that April 2018 report was criticized, the developer’s consultant sent a DIFFERENT diagram to BAAQMD, editing out all public areas in the purple zone and presenting two boxes purportedly 225 feet from PHR as the “Project” (we also believe the distances are exaggerated). The public areas between PHR and the boxes were NOT shown or referenced. Ms. Kirk did not notice the deletion, and was therefore induced to state in her email that “the Project is ADJACENT to areas recommended for ‘Best Practices’ and ‘Further Study’” (emphasis in original).

Anyone looking at the public areas on the actual site plan in the EIR can compare and see the deletion. Now that Ms. Kirk and Mr. Vintze are aware of the deletion, BAAQMD has changed its position to “Yes” the “public areas depicted on the EIR project description…include areas recommended for ‘Best Practices’ in BAAQMD’s Planning Healthy Places and is in the purple zone on the PHP online maps”. That corrects the second half of the 5/29 email the developer obtained by not showing the public areas within the purple zone to Ms. Kirk.

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Correct Information About 315 Apartments

Some voters are confused by comments that if Measure L is rejected the developer might resubmit the original 315 apartments application that was suspended on 1/13/14. Instead of being distracted by this vague threat, voters should evaluate the Homes project on the merits of its traffic impacts, view impacts, and $3M of city money for a children’s play area and sport field on a major traffic corridor with air quality issues. The city has the legal authority to deny that project as detailed below.

Click here for the full document

Here is a summary:

  1. The apts application was never approved. It was suspended in 2014 when the city certified the apts EIR with 13 significant unavoidable environmental impacts including 5 public health and safety impacts. The California housing accountability act, government code (“govt. Code”) 65589.5(d)(2) authorizes denial of apartments for adverse impacts on public health and safety.
  1. The controlling general plan designation for the property became low density single family residential 2 units/acre (“LDSFR”) on 8/10/15, which does not allow apts. If resubmitted, the apts application would require a general plan amendment, which is a legislative act under govt. Code 65301.5 and subject to another voter referendum.
  1. The developer argues there is administrative professional office zoning (APO) on the property from before 2015, but this is temporary and unenforceable. Per govt. Code 65860(c). The zoning is subordinate to the LDSFR general plan designation. The city council is already making plans to amend the APO zoning to low density residential if measure L is rejected by the voters.
  1. A 2014 tolling agreement and processing agreement would not allow the city to disregard state law and the strict deadlines of the permit streamlining act which expired on the apts application in 2014.
  1. Approval of Measure L will establish precedents on traffic impacts and hillside development that will adversely affect the city’s residents on future land use applications.
  1. The city breached a mandatory duty to voters and improperly interfered with the referendum process.

Future outcomes in litigation cannot be predicted with absolute certainty. All that can be done is to make an evaluation of legal issues based on the strengths and weaknesses of the various arguments. In the case of Measure L, the arguments being put forward about apartments are weak. Voters should decide how to cast their vote based on the merits of the Homes project and not be misled.

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.

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.