City Council Meeting Page 1 of 17 August 8, 2022
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1. CALL TO ORDER
Mayor Gerringer called the Regular City Council meeting to order at 6:00 p.m. via teleconference.
2. ROLL CALL
7 City of Lafayette
City Council
Meeting Minutes
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Present: Mayor Gerringer; Vice Mayor Anduri; Councilmembers Candell, Dawson and Kwok
Absent: None.
Staff Present: Niroop Srivatsa, City Manager; Tracy Robinson, Administrative Services Director; Matt Luttropp, Engineering Manager; Renata Robles, Senior Planner; Mala Subramanian, City Attorney; Joanne Robbins, City Clerk
3. ADOPTION OF AGENDA
ACTION: It was M/S/C (Candell/Dawson) to adopt the agenda. Roll Call Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson and Kwok; Noes: None).
4. PUBLIC COMMENTS - (6:00 p.m. for items on Closed Session only) – None.
5. CLOSED SESSION
Mayor Gerringer adjourned to Closed Session at 6:04 p.m. to consider the following matters:
A. CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION Initiation of litigation pursuant to Gov. Code section 54956.9(d)(4)- 1 potential case.
B. Conference with Real Property Negotiators (Gov. Code Section 54956.8) Property: 990 Moraga Road (APN 243-222-023)
Negotiators: Niroop K. Srivatsa, City Manager, Tracy Robinson Administrative Services Director and Joe Kuvetakis, John Cumbelich & Associates
Negotiating Parties: Scott Haislet and Charles Kolb, Representing Property Owners Under Negotiation Price and terms of payment
C. Conference with Real Property Negotiators (Gov. Code Section 54956.8) Property: 3533 Plaza Way (APN 243-222-019)
Negotiators: Niroop K. Srivatsa, City Manager and Tracy Robinson, Administrative Services Director and Joe Kuvetakis, John Cumbelich & Associates Negotiating Parties: Paddy Kehoe, Representing Property Owners Under Negotiation: Price and terms of payment
RECONVENE REGULAR MEETING
Mayor Gerringer adjourned Closed Session and reconvened the regular meeting at 7:00 p.m.
City Attorney Mala Subramanian stated there is no reportable action, but all three Closed Session items will be continued to the end of the meeting. She requested removing Item 8C from the Consent Calendar and hear that after the Closed Session items at the end of the meeting.
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Administrative Services Director Tracy Robinson announced the Closed Caption instructions.
6. PUBLIC COMMENTS – (7:00 p.m. for items not on the agenda).
DAVID CLARK reported the Creeks Committee is close to adopting a Final Downtown Creeks Plan and then it will go to the Planning Commission and thereafter, to the City Council. He observed things he has noticed in reaching the final draft. People have a hard time tracking some long-term projects and getting them done on a timely basis, and the Downtown Creeks Plan is an example. He suggested assigning a staff person or committee to track things or that it be a permanent item on the Legislative Subcommittee.
Several State laws sunset and the City ought to keep track of this.
ELIOT HUDSON said the Mission Statement this Council adopted directs proactively making Lafayette a town of semi-rural ambience. The necessity of revising development standards to achieve that goal has become manifest. For both Housing Elements needed to meet RHNA numbers and for ADUs under recent state law, Lafayette’s review process is limited to requiring objective, quantifiable written development standards, conditions, and policies.
Right now, none of the objective standards for ADUs or for RHNA development address the Mission Statement’s mandate. As a result, that character is being diminished by project after project. He asked the Council to establish a task force to fix this problem and should include members of the DRC and community representatives who have fought to preserve the City’s character, and he would be happy to serve on such a task force. It requires the Council to lead the way in telling the staff, commissions, and committees that the Mission Statement means something.
ALISON HILL requested being able to talk at the time under the Consent Calendar.
MARY ANN HOISINGTON agrees with Mr. Hudson’s statements, stating it is shocking to see what is being built in town. It is as if things were dropped into outer space into their little town, and she asked to listen to his comments.
7. PRESENTATIONS
A. Tracy Robinson, Administrative Services Director
Introduction of new employees – JB Juarez, Code Enforcement Officer, Justin Bodily, Recreation Coordinator and Carolyn Franck, Planning Department Assistant Recommendation: Receive and file..
Administrative Services Director Tracy Robinson introduced new employee, Carolyn Franck, Planning Department Assistant, Justin Bodily, Recreation Coordinator and provided a brief background of each new employee present. She noted JB Juarez, Code Enforcement Officer, was not present.
Mr. Bodily and Ms. Franck gave introductory comments, and indicated they were excited to work with the City.
Mayor Gerringer and Councilmembers welcomed new employees.
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6. CONSENT CALENDAR
Mayor Gerringer announced Item 8C has been removed and will be considered at the end of the meeting after Closed Session, requested removal of Item 8D per request by Alison Hill. She asked if there were any other requests for removal of items or public comments, and there were none.
A. Minutes – July 25, 2022 Recommendation: Approve.
B. Resolution 2022-50 Allowing for Video and Teleconference Meetings During the COVID19 State of Emergency under AB 361
Recommendation: Adopt Resolution 2022-50.
E. Request for authorization to transfer $31,252 of SB 1383 Local Assistance Grant money to RecycleSmart
Recommendation: Authorize redistribution of California Department of Resource and Recycling (CalRecycle) SB 1383 Local Assistance grant funds, in the amount of $31,252 to Contra Costa Solid Waste Authority (RecycleSmart) to perform SB 1383 compliance activities on behalf of the City of Lafayette in the RecycleSmart Service Area.
F. Potential Acquisition of 990 Moraga Road (APN 243-222-023) and 3533 Plaza Way (APN 243- 222-019)
Recommendation: Receive and file.
ACTION: It was M/S/C (Candell/Dawson) to adopt Consent Calendar Items A, B, E, and F. Roll Call Vote: 50 (Ayes: Gerringer, Anduri, Candell, Dawson and Kwok; Noes: None).
9. OLD BUSINESS – None.
10. STAFF REPORTS – None.
11. PUBLIC HEARINGS
A. Renata Robles, Senior Planner
City of Lafayette 6th Cycle Housing Element Environmental Impact Report A draft and final environmental impact report (EIR) has been prepared for the 6th Cycle Housing Element Update, including the growth stemming from the housing plan and opportunity sites identified in the document to accommodate the mandated Regional Housing Needs Allocation of 2,114 assigned to Lafayette, plus a buffer, which total of 3,095 units. The draft and final EIR can be found at www.lovelafayette.org/CEQA.
Recommendation: Conduct the public hearing, review the EIR, and continue to the September 12th consent calendar to adopt Resolution 2022-51, approving certification of the 6th Cycle Housing Element EIR.
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Senior Planner Renata Robles gave the staff report and overview of the 6th Cycle Housing Element EIR. She introduced Diana Elrod, the City’s Housing Consultant, Luke Evans of ESA, and Ellen Poling of Fehr and Peers. She described public outreach to receive comments and input, response to comments, list of revisions made to the document, the MMRP, and Appendices that provide additional information on response to comments.
The City submitted its initial draft of the Housing Element to HCD; however, before final version is sent for certification by the state, the Council needs to certify the EIR. Part of the proposed plan in the Housing Element is to plan for development at BART parking lots, and as part of the EIR, planned development for new zoning standards was evaluated and incorporated as part of the environmental assessment.
The Planning Commission reviewed the FEIR at their meeting last week and recommended the City Council certify the document. The Council must find there is sufficient environmental analysis under CEQA, and staff recommends the Council hold a public hearing, review the EIR, and continue the item to September 12, 2022 Consent Calendar to adopt Resolution 2022-51, which certifies the 6th Cycle Housing Element EIR.
Ms. Elrod requested promoting Ashlee Takashi from the Fehr and Peers team.
Councilmember Candell referred to the process of the EIR and the BART lot. She asked if HCD returns and states they cannot use the BART lots, she asked how this impacts this EIR. Ms. Robles replied the EIR is analyzing a maximum envelope of impact resulting from the Housing Element. Even if HCD indicates the City cannot use BART as an opportunity site, if the City is under that maximum threshold of 3,100 units in total it is a matter of shuffling those units around within the 3,100-unit cap.
Councilmember Candell said when staff says there is no impact and it must be something that alters the environment. If they upzoned all downtown, it would adversely affect the City’s aesthetics. But, hiring more police or having 1,000 more children in their schools are not an impact. She asked to explain this reasoning.
Luke Evans, ESA, explained that when it comes to issues like that with police, fire, schools, the question under CEQA is whether there would be physical changes to the environment created by the construction of more schools or more facilities. The question is directed specifically towards environmental impacts of facilities, not necessarily of adding more children or police officers, etc. The problem with that is at this point, they do not know whether they will need to construct new schools or hire more police officers. If that growth did happen it is unclear where the facilities would be, what kind of upgrades or expansions would be required to make those happen so they cannot speculate on the environmental effects at this time.
So, what would happen is if they need a new school or expand an existing school, when those plans came up they would have to be reviewed and subject to CEQA and environmental review. At that time, they would determine what kind of impacts there would be. But, right now they have no way of doing that.
Councilmember Candell said if the City does not like something slated as a “no impact” she asked if they are allowed to change that if a vote of the Council comes through that would support it.
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Mr. Evans said he has not had that happen yet, but it might be an opportunity to modify the findings if that were to happen.
City Attorney Subramanian said she has not had that happen either, but she would follow up with her colleague Sarah, who created the document. To the extent that comes out of the discussion tonight, there is another meeting before the Council acts.
Mayor Gerringer opened the public comment period and public hearing.
JUDY PETERSON ceded David Clark 3 minutes.
DAVID CLARK referred to BART and the upzoning. His preference would have been to not have included the BART parking lot and to wait and see the response from HCD. That was his preference, but that said he thinks there is an opportunity here. There is a no net loss provision such that if the City downzones with a commensurate upzoning at the same meeting this is allowable under Government Code Section 66300(i) which was part of SB 330. They have talked with the City Attorney and she has agreed that is doable. Therefore, it looks like the meeting with the BART upzoning is this meeting because that is what is on the agenda and the City is missing an opportunity if they do not correlate a down zoning with that upzoning to take advantage of the provision in the State statute. The downzoning would occur if they tried to apply a creek setback to an unimproved channel within the City of Lafayette. The reason that happens is because the current statute in the Municipal Code is the allowance of a creek setback for an unimproved channel, which was in existence prior to 2018 when the law changed and therefore, they can refer to that.
What they cannot do is what is in the Downtown Creeks Plan and try to extend the creek setback to an improved channel. That is deemed to be a downzone.
Therefore, the way they could take advantage of the BART upzoning is to change a couple of words in the existing statute. They can table this provision and talk about it in more detail. If it cannot be tabled, he thinks the Council can address this statutorily in a straight-forward way by changing two words in the Municipal Code of “unimproved channel” to “water course”, this is effectively a down zoning so they will have accomplished the same meeting rule. Therefore, he thinks this is doable without tabling the issue.
Some measurement must be done to make sure so they are not upzoning more than they are downzoning, but he thinks if there is 11 acres of BART parking lot, they might have half of that in Creekside parcels in the downtown core, and that is assuming equal densities. Also, there are two reasons to do this now— first, it is free money, and secondly, this is a real benefit because what they are losing in the Downtown Creeks Plan because of the State law change is about 60% of the downtown creek area that currently exists, and he asked if they could reinstate all of that with the no net loss provision.
Mayor Gerringer asked what the Council is doing right now in terms of how it relates to BART. They are looking at certifying the EIR and if the Council wished to bring that back, she confirmed this could be done.
Councilmember Candell referred to traffic study in evacuation routes and evacuation of the schools. She asked if the City asked County Connection if they could perform the evacuation.
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Ellen Polling, Fehr and Peers, stated they prepared the evacuation assessments required by AB 747 when Housing Elements are updated. The idea that all students would be evacuated in personal vehicles was not the assumption made. It is County Connection buses for 60-person capacity would be used to evacuate students. Only two of the three scenarios included school evacuations based on the evacuation area. The scenarios presume there is time for emergency responders to dispatch buses and drivers to school sites.
Councilmember Candell asked if County Connection agreed with these assumptions made. Ms. Polling stated based on discussions with City staff, Fire and Police, this was a reasonable assumption, and she confirmed they did not directly talk with County Connection. They also had the Emergency Preparedness Commission representation in the meetings discussing the assumptions for the analysis.
Councilmember Candell voiced a problem with this EIR that no one really received buy-in from County Connection to do that. She would imagine it would be a very big impact if they did not receive buy-in and people had to go pick up their children. So, this is a big red flag for her. She asked how they included people from Orinda in Scenario 1 that would likely be heading into Lafayette to evacuate. They only have Miner Road, but some will come down Happy Valley, Upper Happy Valley and she asked if they included them.
Ms. Polling said based on the evacuation zones they did not assume additional Orinda folks would evacuate through Happy Valley Road. They would get out different ways, but they took everyone in the Zone Haven zones that needed to evacuate out through Lafayette roads, and this was based on Police and Fire and the Emergency Preparedness Commission representation in meetings they had planning the analysis assumptions.
Councilmember Candell said it seems more clarity is needed from them because it is their natural route and she questioned how this will be enforced. She questioned how they would just put a border at the Lafayette border to make sure all those people that live in that community does not go in and asked to hear more about how this is a justifiable assumption.
Ms. Polling said it is Zone Haven zones that are used to evacuate different areas. If they look at Scenario 1 which is the fire coming from the north and all Zone Haven zones within Lafayette that need to evacuate through Lafayette routes, zones that go into Orinda were not evacuated through Upper Happy Valley or Happy Valley Road. That was not the task at hand. The task was looking at Lafayette evacuation for these scenarios.
She said in the case of the Scenario 2, there were some northern Moraga zones that could have been evacuated through Moraga Road through Lafayette. It did not make sense for those folks to use Moraga Road because there were faster ways to get away from the danger. In fact, she thinks they evacuated those northern Moraga zones through Moraga Road, but if students from Campolindo High School are going to gather and they get out in cars and buses, they would not be sent right through Moraga Road where a lot of other people are evacuating but rather through Orinda away from the fire. So, for Campolindo High School in Scenario 2 this is what they assumed.
Mayor Gerringer said she thought that the Council also heard that the strategy on the part of Fire and Police was that there is a multi-layer way for getting students and staff out of the schools using the bus City Council Meeting Page 8 of 17 August 8, 2022
idea and getting staff out in their own vehicles. One of the main ideas was that if those were not available as strategies there would be a shelter in place, and they would target emergency apparatus to make sure those school sites were protected. It does not show up that way in here. It talks about how people will evacuate and get away from there, but the other layer of sheltering in place and protecting the facilities would be one of the strategies as well.
She then asked who were the folks that were in the planning meetings with Fehr and Peers on how the scenarios were developed.
Ms. Polling stated it was the Police Chief, Fire Chief, City Planning staff, Luke Evans of ESA, and the Chair of the Emergency Preparedness Commission were in all meetings. The reason for shelter in place versus how to get people out from schools is that there are an infinite number of emergency scenarios based on the location of the fire, how quickly it advances, etc. and that is what emergency responders are charged with planning for.
This assessment is taking three sample scenarios which are most likely and testing the amount of time it would take to evacuate to the freeway to get out of town. In the case of the school evacuations, they chose to assume they would try to get away from the schools and not shelter in place because that would add more vehicles to the road. Granted, there would be buses for the students. In the judgement of the group, that was what they wanted to test. They did not want to test a scenario for shelter in place. So, they had to make choices about assumptions, which was the fact of the task.
Councilmember Candell referred to the fault locations and said she remembers looking at reports where there are 3 parallel faults going through Lafayette, so she was surprised to see 2. They received these from the old study from the BART representatives which showed 3. So, she thinks they are missing one fault.
Ms. Polling said they got that from the source available to them and they did not end up testing any earthquake scenarios, but they can pull in better information if available on fault zones.
Councilmember Candell said the three that are coming through are linked so if one goes the other two go.
Therefore, BART put in massive retrofits years ago, so she suggested this be reviewed. It may not matter right now, but she at least would like the reporting to be correct. The source is the Lettis study and she will send this off to Ms. Srivatsa to forward to Ms. Polling.
Councilmember Candell said her biggest problem in the evacuation information is the designation of this as less than significant. She makes this claim because she thinks the method of using the average of all delay times is a faulty method because residents’ evacuation time in lower Happy Valley Glen tripled. It went from .52 to 1.44 and this would show they must wait in their driveways more than an hour. She thinks this was the worst in terms of time and she was not sure how she can say this is an accurate assessment of being less than significant. If the model of using an average is not right, they should be taking the worst one and questioning whether that is acceptable and determine if that is significant and unavoidable. Therefore, she asked why an average is being used.
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Ms. Polling said AB 747 required evacuation time evaluation is just that. It is a new requirement and is being rolled out as Housing Elements are being updated. A handful of analyses of this type complying with this requirement have been done. It is not clear in the practice of preparing CEQA documents on Housing Element updates or any General Plan Element update how the evaluation of evacuation time without the Housing Element update and with the Housing Element update should be incorporated into the CEQA impact analysis, whether it is in the transportation section or the hazardous section of the EIR.
What they are charged with is just doing an informational evaluation of what would be the evacuation time under the proposed Housing Element. So, the comparative without and with was provided for information. As they can see, it was not included in the Draft EIR. She thinks a response to this question was provided in the Final EIR but there really are no standard metrics or adopted methodology recommended by the State or the Office of Planning and Research for what should constitute a significant impact of a project on evacuation time.
Mr. Evans commented that what Ms. Polling said is correct. They discussed this issue extensively together as to what is significant and what is not significant. There is not a bright line threshold they can apply here.
It is not like air quality or noise or even traffic in the old days when they looked at LOS. Obviously, if you are going to add more cars this will result in more delay. The CEQA threshold, however, relates to impairment and would the project actively interfere with or make an evacuation impossible or impair it to where it could not occur.
Councilmember Candell referred to it not being developed, and she asked where this is from. Mr. Evans said in looking at the CEQA guidelines and the checklist questions. Councilmember Candell noted she read those, and she interprets those very differently.
Mr. Evans said he will read them into the record, stating “Would the project substantially impair an adopted Emergency Response Plan or Emergency Evacuation Plan.” He knows the question is, what does “impair” mean. Is it one car? Is it one minute? Is it an hour or half-hour or is delay impairment? From a straight CEQA perspective, there is nothing in the Housing Element Update that would prevent an evacuation from occurring. It may delay evacuation, but it would not prevent evacuation from happening.
So, that is the threshold they would be applying here. He can think of hypothetical situations where something could be impaired and the evacuation could not move forward, i.e., if you create a bottleneck in a roadway and you cannot feed cars through or several scenarios like that. Just simply adding more cars does not necessarily impair. It does delay but it does not necessarily impair, and the evacuation could still move forward.
So, as Ms. Polling alluded to, this is still an evolving issue. It reminds him of when VMT and GHG analysis rolled out many years ago and it became an issue that rose to the forefront but there were not adopted thresholds or criteria they could apply. So, when they looked at this they looked at what the criteria as it is now says—Would the project substantially impair? That is a judgement call. Is adding 5 or 10 minutes, one-half to an hour impairment?
Ms. Polling interjected and said they have learned quite a bit in this process in meeting with the emergency response representatives. They have emergency response plans and know a lot about how to respond to real-time information and real-time evolving emergencies. So, what they did is a static assessment of City Council Meeting Page 10 of 17 August 8, 2022
having a certain number of cars getting through this evacuation area and a different number of cars with the Housing Element and you have bottlenecks and here is how it feeds through, and here is the static increase in delay. What the emergency response folks do is deal in real-time and dynamics and can adjust their response to the evacuation information that goes out to optimize the evacuation, not to gloss over there could be an increased overall evacuation time. But there is just an infinite number of ways these things can play out and they have many tools in their toolbox to adjust the emergency response plan and evacuation plan to exactly what is happening.
Councilmember Candell said they must base it on science and math and the numbers came out that because of the distributed network with a lot of new housing at BART is an hour more delay in that neighborhood which has a single ingress and egress and a very high fire severity zone. So, she asked if that is significant. If this were in somewhere that was not a very high fire hazard severity zone maybe it would not be quite as important, but it is. The chance of having a major fire there is huge, and so to her, this is a significant impairment to those areas because of the Housing Element. She did not know how it could be justified any other way as a professional, and this is her interpretation of that.
Ms. Polling said she was trying to articulate earlier is just what is not reflected in that analysis is any kind of dynamic response the Fire Department would take.
Councilmember Candell noted that Lafayette had a fire and Hwy 24 came to a standstill. Everybody on Pleasant Hill Road was in lockdown. So, they have real evidence that evacuation routes are good, but not moving, and that was on a Sunday and not even in traffic and people could not get out. So, they have empirical data that would show these are optimistic to her if they go back and look at what happened at that fire.
Mr. Evans added that he hesitates to use the term “worst case scenario” but these scenarios that were evaluated were extreme. It was an example where they flip a switch and suddenly everyone north of the freeway must evacuate all at once. Using the discussion Ms. Polling said is unlikely to happen. It is usually going to happen in waves and zones. The analysis was worst case scenario and it was very blunt. This is another thing to consider in making deliberations.
Councilmember Candell asked what is the problem with saying it is significant and unavoidable. Mr. Evans said there is not a problem with that. Typically, they are trying to figure out ways to make things less than significant.
Councilmember Candell said it probably can be mitigated but it is not right now.
Ms. Polling said they did have recommendations for things that could be put into new emergency response plans like signal timing plans that are ready to go at a moment’s notice that propagate flows needed, and these are easily programmed into signal timing boxes and some other things, but those were not able to be tested to prove they could reduce the change in delay to zero. Other than zero, they do not have a threshold other than one the City would propose or assessing whether the City wants to say this is a significant impact. If one extra minute of delay with the Housing Element is significant that would be hard to demonstrate.
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Councilmember Candell referred to old LOS grades which are not used any more, and said she thinks it was a minute or two that changed the level into significant. Some of those were down to a minute or two so to her this is what was considered a significant impact for comparison. She thinks they could use that to compare and hang their hat on as to why they believe this is significant.
Ms. Polling asked and confirmed this was like LOS D to E or 5 seconds of delay. They have had numeric quantitative thresholds for intersection level of service which is a capacity congestion measure. Like she said, they do not have anything to point to as precedent for how much more time to evacuate in an imaginary scenario that is worst case, such as evacuating the entire north of town instantaneously. They have no basis for thresholds of significance for that.
Mayor Gerringer said regarding the Councilmember’s point regarding LOS, her understanding is they cannot use that any longer because the law does not allow it.
Councilmember Candell said she agrees, but as a comparison a delay that was significant was minutes in the past, but there is a delay of an hour, and she concluded her questions and comments.
Mayor Gerringer said what the Council is being asked to do is review and vote to continue the item to the September 12th meeting and adopt a resolution at that time. She asked if there were ways to change certain pieces of this and she asked if the Council wished to have more information come back regarding testing one of the assumptions in the evacuation report, talking with County Connection and verifying that piece of it, and she asked if there were any others.
Councilmember Candell said she would like to change 4.17-1 and make that a “significant and unavoidable” impact.
Mayor Gerringer said if this is changed or any element of the EIR, she asked what would be downstream consequences of this at the September 12th meeting.
City Attorney Subramanian said with regards to that item, she thinks it would be helpful to have her colleague opine and they can bring that information back at that meeting and give the Council the option to move forward with the suggested revision or not.
Councilmember Kwok said in looking at the issues brought up by Councilmember Candell he supported staff checking on such things as the County Connection to receive feedback and clarify some of these issues and satisfy the Council and the public that it makes sense.
Councilmember Dawson thanked Councilmember Candell for bringing up these points, and voiced support of this. She thinks they are very valid, so constituents are more confident in the City’s plans and the EIR.
Vice Mayor Anduri noted that because of his travel and because of the Granicus being down, he is not prepared to comment. He will commit within the next three weeks to reach out to staff first and then see if he needs to have a discussion with the consultants on any questions he may have.
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Councilmember Kwok commented on the request to change to “significant and unavoidable,” as this term means something to ESA and to other cities. It is a term that applies to many cities in the way their EIR reports are written and can be benchmarked against other cities. There is a body of precedence in the way the terminology is being used, and he would be sensitive to having 5 members just vote one way or another of what they think it means, without considering how the term is more broadly used. This is a very important issue on evacuation, but without going into detail into the ways the City could mitigate for it, he thinks it is something the Council should understand the context on the precedent of what that term means before just voting on it.
Mr. Evans added that much of the rationale they used to make that determination was based on a very recent Appeals Court case that came down in February in Placer County that looks at this question specifically. In that case, the EIR was upheld because it did exactly what they did here. It analyzed evacuation times both with and without the project, came up with a delta, and ultimately determined that it was not significant. Obviously, it would increase evacuation times, but they determined it was not significant. In that court case, the court found there was sufficient evidence in the record to make that stick. So, as CEQA consultants they like to look at EIRs that work and are upheld. It is one thing to look at an EIR that fails, but they like to look at what passed legal muster, and this is the reason they also structured this the way they did. It was based on that latest court opinion that came down a few months ago. But, they can provide more information on that and they would be happy to do that.
Councilmember Candell asked Mr. Evans to include the links to that court case and whatever else the City Attorney can provide.
Councilmember Dawson referred to the question about Orindans who might be evacuating, this is probably also true of Moraga residents evacuating. Ms. Polling mentioned that the task is for areas within the scope of Lafayette. She asked if it factors the other cities at all if their evacuation routes and a fire starting in one of those areas.
Ms. Polling said she will check as part of due diligence, but Zone Haven is an evacuation system that many cities use, and it is an organized set of different zones for evacuation in any type of emergency.
The zones chosen for Scenario 1 which is the north of Lafayette and the fire coming from the northwest and Briones included every zone they thought that would affect Lafayette evacuation routes. But, she will look at the zones chosen adjacent, north, and west of the zones they already chose to see if there were any evacuees they might have missed.
Mayor Gerringer suggested staff invite any police or fire representatives involved in initial discussions, recognizing that they do comment on projects, and she asked for a motion for continuance.
ACTION: It was M/S/C (Kwok/Candell) to continue to September 12th for additional information and of Resolution 2022-51, approving certification of the 6th Cycle Housing Element EIR. Roll Call Vote: 5-0 (Ayes:
Gerringer, Anduri, Candell, Dawson and Kwok; Noes: None).
12. ITEMS REMOVED FROM CONSENT CALENDAR
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C. Contract with Sher Edling LLP for specialized legal services related to the City’s claims for relief from damages from PCBs and/or other contaminants
Recommendation: Authorize the City Manager to execute a contract for specialized legal services with Sher Edling LLP.
This item will be undertaken after the Closed Session at the end of the meeting.
D. Award of Construction Contract for First Street Rain Garden Project, No. 014-9722 Recommendation: 1) Award a construction contract to Grade Tech in the amount of $546,883 for the First Street Rain Garden Project, No. 014-9722. 2) Authorize a transfer of $93,000 from the fund 14 fund balance. 3) Authorize a transfer of up to $229,683 from the 2023 CIP budget 014620- 906.
Engineering Manager Matt Luttropp suggested Ms. Hill make her public comment as she requested removal of the item.
ALISON HILL voiced concerns at the time and still is about the number of plants being proposed for the lot which is very small. It is on one of her regular walking routes and while she loves the idea of the Rain Garden and making the area look better, she is concerned with what is going to be done. She counted from specifications that went to the contractors there are 500 plants going in that space, ranging from 4” pots to 5-gallon shrubs which is a huge number with a commensurate cost.
She is concerned they will overgrow and there will be issues with that. She is also concerned about the health of the existing oak tree because they do not like suddenly like having watering going on all around them. She is also concerned with the amount of water that may be used in the drought situation. In addition to it being a small area for that many plants there is a considerable amount of hardscape so it is not that the plants will cover the entire area. She knows there was an authorized landscape person planning this, but from her considerable but not professional experience with native gardening, it just seems like too much and asked that it be reconsidered.
Vice Mayor Anduri asked and confirmed with Ms. Hill that she received Mr. Luttropp’s email this morning.
Ms. Hill said he made a presentation to the PTR Commission back in early summer and she was trying to find this and more details which was difficult. She did find the specifications which listed the number of plants which she found amazing and she is concerned with the number of plants and how they will be treated.
Councilmember Dawson said she and Ms. Hill spoke earlier today and she followed up with Mr. Luttropp.
She did not have a chance to share those with Ms. Hill and said she could relay those comments.
Mayor Gerringer suggested Mr. Luttropp comment on his reply.
Mr. Luttropp said the first question relates to the number of plants. He agreed there are many plants and this was one of his original concerns with the planting in previous iterations and the landscape architect reduced them. He pointed out that many of these plants are tiny such as California Poppies. There are 50 of these and do not get very big. There are 115 red fescues which is a small native grass species. So, it City Council Meeting Page 14 of 17 August 8, 2022
may seem like a lot of plants, but when looking at their scale, it is not daunting. The site is heavily vegetated and there is not a lot of open space where there will not ultimately be plantings.
He noted there has been debate about this and when looking at plantings downtown, it is very dense but for the islands by the Reservoir, those have much more negative mulch space. The Rain Garden site is more in keeping with the denser plantings found in the downtown. They could ask the contractor to reduce the plantings. As far as how this could affect the oaks on site, he shared his screen of the landscape plan and described it, stating there is not a lot planted by the 3 oaks and most of the planting is downslope of the oak trees so he did not believe there would be a problem with them getting too much water especially once the new plants are established.
Another question Ms. Hill raised was the watering schedule. The way it is set up now is to be sufficient to keep the plants moist until they are established. Once established it will be considerably scaled down and maintained by the Public Works Department, so they do not waste water.
Mayor Gerringer opened the public comment period. There were no speakers, however, she recognized Ms. Hill wished to speak again to confirm her questions were answered.
ALISON HILL added that the best time to plant new native plants is in the fall so they benefit from the rainy season and that poppies are best planted by seed and not by plant to do well.
Mayor Gerringer thanked Ms. Hill for her comments and input. She suggested working with Mr. Luttropp on any other items or questions she has that may come up.
ACTION: It was M/S/C (Anduri/Dawson) to: 1) Award a construction contract to Grade Tech in the amount of $546,883 for the First Street Rain Garden Project, No. 014-9722. 2) Authorize a transfer of $93,000 from the fund 14 fund balance. 3) Authorize a transfer of up to $229,683 from the 2023 CIP budget 014620-906. Roll Call Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson and Kwok; Noes: None).
13. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Vice Mayor Anduri asked to mark calendars for the Night at the Library which will be held October 15, 2022.
Mayor Gerringer reported on September 2nd at 7PM they will have a dedication ceremony for the Diaz Family Memorial Plaque the City Council previously approved near Plaza Park. More information will follow.
She reminded everyone that school starts tomorrow, and she thanked the new school superintendent and Mike Moran for taking time to provide a detailed update about projects that have occurred as a result of Safe Routes to School work. She encouraged everyone to be safe and aware, slow down, and remove distractions while driving.
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B. City Manager’s Update
Recommendation: Receive and file.
City Manager Srivatsa stated she had no update.
C. Mayor Gerringer
Request to recognize August 31st as International Overdose Awareness Day in Lafayette Recommendation: Approve the proclamation recognizing August 31st as International Overdose Awareness Day In Lafayette.
Mayor Gerringer stated April Rivera lost a son to an overdose several years ago. Out of this tragedy she has spent time raising awareness to discard unused prescriptions appropriately and ensuring law enforcement and firefighters have Narcan to be able to respond to overdoses. She asked the Council to approve the proclamation recognizing August 31st as International Overdose Awareness Day.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Candell/Kwok) to approve the proclamation recognizing August 31st as International Overdose Awareness Day In Lafayette. Roll Call Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson and Kwok; Noes: None).
14. WRITTEN COMMUNICATIONS – None.
15. CLOSED SESSION
Mayor Gerringer opened the public comment period (for Closed Session items only), and there were no speakers.
Mayor Gerringer adjourned to Closed Session at 9:46 p.m. to consider the following matters:
A. CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION Initiation of litigation pursuant to Gov. Code section 54956.9(d)(4)- 1 potential case.
B. Conference with Real Property Negotiators (Gov. Code Section 54956.8) Property: 990 Moraga Road (APN 243-222-023)
Negotiators: Niroop K. Srivatsa, City Manager, Tracy Robinson Administrative Services Director and Joe Kuvetakis, John Cumbelich & Associates
Negotiating Parties: Scott Haislet and Charles Kolb, Representing Property Owners Under Negotiation Price and terms of payment
C. Conference with Real Property Negotiators (Gov. Code Section 54956.8) Property: 3533 Plaza Way (APN 243-222-019)
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Negotiators: Niroop K. Srivatsa, City Manager and Tracy Robinson, Administrative Services Director and Joe Kuvetakis, John Cumbelich & Associates
Negotiating Parties: Paddy Kehoe, Representing Property Owners Under Negotiation: Price and terms of payment
RECONVENE TO OPEN SESSION
Mayor Gerringer adjourned Closed Session and reconvened to Open Session at 10:46 p.m.
City Attorney Subramanian announced the City Council unanimously voted to initiate litigation for Item A.
Once the action has been filed, the defendants and other particulars will be disclosed to any person upon inquiry, unless to do so would jeopardize the ability to effectuate service or would jeopardize the ability for settlement negotiations. There was no other reportable action taken in Closed Session. She asked if there were any public comments.
Item Removed from the Consent Calendar:
C. Contract with Sher Edling LLP for specialized legal services related to the City’s claims for relief from damages from PCBs and/or other contaminants
Recommendation: Authorize the City Manager to execute a contract for specialized legal services with Sher Edling LLP.
Mayor Gerringer opened the public comment period.
JAMIE HESSION asked for an explanation of the Closed Session process.
City Attorney Subramanian explained that under the Brown Act, the City Council and other public agencies are allowed to go into Closed Session to discuss certain items. Ones typically done are litigation matters.
In this case, the Council had three Closed Session items that were permitted under the Brown Act; one to discuss initiation of litigation and the other two were to discuss potential acquisition of properties, specifically the price and terms of those properties.
These items are handled in Closed Session due to non-disclosure of negotiations relating to price and terms. What is before the Council is an Open Session item which is the contract for Sher Edling, LLP. Once litigation has been filed, she confirmed she will provide an update to Ms. Hession.
ACTION: It was M/S/C (Candell/Dawson) to Authorize the City Manager to execute a contract for specialized legal services with Sher Edling LLP. Roll Call Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson and Kwok; Noes: None).
12. ADJOURNMENT – 9:53 p.m. in memory of Don Jenkins.
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APPROVED:
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Teresa Gerringer, Mayor
ATTEST:
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Joanne Robbins, City Clerk