City Council and Creeks Committee Meeting Page 1 of 29 September 12, 2022 7 City of Lafayette
City Council and Creeks Committee
Meeting Minutes
Teleconference Meeting – Watch on the City of Lafayette’s YouTube Channel at September 12, 2022 http://bit.ly/LoveLafayetteYouTube Submit public comments to [email protected] 6:00 p.m. before or during the meeting.
To protect public health, our residents, officials, and staff, and aligned with the Governor’s recent executive order N-29-20, certain teleconference requirements of the Brown Act have been suspended, including the requirement to provide a physical location for members of the public to participate in the meeting. Here is how to participate in the meeting and provide public comment:
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City Council and Creeks Committee Meeting Page 2 of 29 September 12, 2022
1. CALL TO ORDER
Mayor Gerringer called the Regular City Council meeting to order at 6:00 p.m. via teleconference.
2. ROLL CALL
Present: Mayor Gerringer; Vice Mayor Anduri; Councilmembers Candell, Dawson and Kwok
Absent: None.
Present: Creeks Committee: Chair Will Elder, Committee members Phil Bradley, Mary Jo Cass, David Clark, Ron Huff, Peter Norton; Absent: Austin Payne Staff Present: Niroop Srivatsa, City Manager; Tracy Robinson, Administrative Services Director; Greg Wolff, Planning & Building Director; Sarah Owsowitz, BBK Attorney, Mala Subramanian, City Attorney, Renata Robles, Senior Planner; Tim Clark, Assistant Engineer; Suzanne Iarla, Communications Analyst
3. Resolution 2022-52 Allowing for Video and Teleconference Meetings During the COVID19 State of Emergency under AB 361
Recommendation: Adopt Resolution 2022-50.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Candell/Dawson) to adopt Resolution 2022-50. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
4. ADOPTION OF AGENDA
ACTION: It was M/S/C (Candell/Dawson) to adopt the agenda. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
5. PUBLIC COMMENTS - (For items on Closed Session only) – None.
6. CLOSED SESSION
Mayor Gerringer adjourned to Closed Session to consider the following matters:
A. Conference with Legal Counsel – Existing Litigation
(Gov. Code section 54956.9(d)(1)
Save Lafayette and Nahid Nassiri v. City of Lafayette et al, 3821 Land LLC California Court of Appeal First District, Case No. A165324 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 and 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
City Council and Creeks Committee Meeting Page 3 of 29 September 12, 2022 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 announced there was no reportable action taken in Closed Session.
7. PUBLIC COMMENTS – (7:00 p.m. for items not on the agenda).
JUDY CLARK ceded her time to David Clark.
DAVID CLARK referred to his comments regarding the no net loss provision two Planning Commission meetings ago and there was a staff comment he would like to respond to. The comment was that in order to achieve no net loss the City would have to spend $100,000, hire a contractor and take 6 months to come up with the quantified amount. He did not think this was necessary and sent the Council a copy of a spreadsheet where he listed every parcel that abuts against the channelized creek downtown that is also in the DSP project. He was very conservative in choosing those parcels. When getting to the west end, there are two creeks that adjoin in a small “Y.” He also included the parcel numbers and square footage, as well.
When adding it all up, a total of 7.82 acres is in that area. This times a density of 35 du/acre yields 274 homes. The number the City is looking at for the BART upzone is 781 units. This is the disparity, so he invited the Council to look at the schedule. It shows it is impossible for the negative amount ever exceed the positive amount.
8. PRESENTATIONS
A. Project Earth Team, Burton Valley Elementary School
Presentation regarding idling cars and air quality impacts Recommendation: Receive and file.
Raini Chu, President, introduced Project Earth Team leaders David Siu, Secretary and Lauren Brekke, Treasurer, said they are 7th graders at Stanley Middle School, and they gave a presentation regarding their no idling project. They asked the City to adopt a resolution they prepared which would require no enforcement but simply a statement that the City cares and wants to do its part. It will enable students to educate idlers about the harm.
Mayor Gerringer thanked Project Earth Team for their presentation. She commented that adoption of a resolution was not agendized for tonight. She asked and confirmed with the City Manager that staff could bring back the item for September 26th if the team could share the sample resolution. Alternatively, the team could present the resolution to the Environmental Task Force.
City Council and Creeks Committee Meeting Page 4 of 29 September 12, 2022 Councilmember Candell asked if the team also includes school buses or other vehicles in the resolution.
Ms. Chu said she believes there is already a school bus idling law in California, but they could consider this as well.
Councilmember Dawson recognized the students for their work in presenting to other cities in Lamorinda and educating towards protection of the environment.
Councilmember Kwok thanked the Team for their presentation and asked if driver behavior has changed since starting this project in 2018. Ms. Chu said they initially were grumpy, but they have gotten a lot of support over time after educating them.
Vice Mayor Anduri echoed thanks and recognized the team as polished and persuasive.
Mayor Gerringer opened the public comment period.
ROB STURM said he lives in Burton Valley and has two children in Burton Valley and another child in Stanley Middle School. As the current Governing Board President and as a local father, he shared his warm appreciation for these presenters and their advocacy on behalf of Mother Earth. Sadly, the greatest challenge to such a program is that climate change has already manifested itself through temperatures above 110 degrees for a week and he again thanked the presenters.
MARY JO CASS thanked the students for their presentation, said their project is inspiring and she asked them to keep up the good work.
Mayor Gerringer advocated for bringing back the resolution to the Environmental Task Force. Liaisons to the Environmental Task Force Vice Mayor Anduri and Councilmember Kwok said they were in favor of giving the Environmental Task Force a chance to comment, refine and work with Project Earth Team on the resolution before its return to the Council.
B. Mary Beth Bykowsy, Outreach Analyst, Community Relations and Outreach Branch, California Department of Insurance
Presentation on issues and programs related to residential insurance cost, senior information, the California Low-Cost Auto Program and the new Safer From Wildfire Program Recommendation: Receive and file.
Mary Beth Bykowsy, Outreach Analyst, Community Relations and Outreach Bank, California Department of Insurance gave a PowerPoint presentation and overview of the Department of Insurance (CDI), the work they have been doing on the City’s behalf and spoke about three programs that will impact the community. They met with 25,000 people in more than 40 counties and held 60 events to hear concerns about availability and affordability of homeowner’s insurance.
The Commissioner has worked with the legislature on laws that help wildfire survivors, including increasing payouts and benefits, and increasing coverage for building code upgrades. They implemented a law giving temporary protection to over 4 million policyholders in areas the Governor declared a wildfire emergency, which she described. She described various programs, standards, mitigation activities, grants, and strategies.
City Council and Creeks Committee Meeting Page 5 of 29 September 12, 2022 The Commissioner established new regulations to bring down costs and risks by submitting new rate filings that recognize safety, established consumers’ ability to appeal risk determination, and they hope to have new rate filings completed by January 2023. She then described programs such as California Low Cost Auto Insurance Program (CLCA), Senior Gateway Portal for seniors and caregivers, and said their tollfree number at 1-800-927-4357.
Councilmember Candell referred to a defensible space ordinance and possible grants and confirmed with Bykowsy she could provide the link for the grant website and wildfire grants are offered by Cal Fire and FEMA.
Mayor Gerringer referred to wildfire safety and insurance pricing regulations to recognize and reward communities’ mitigation efforts and asked and confirmed this should be active by January 2023.
Mayor Gerringer opened the public comment period, and there were no speakers.
C. Creeks Committee
Annual Update
Recommendation: Receive and file.
Will Elder, Chair, said each member will describe what they have been working on. He has worked on the Rain Garden project, thanked the Council and the PTR Commission for their support, and said the project broke ground this week and will be completed around mid-November, with a ribbon cutting ceremony.
They will also work on interpretive signage for the site on First Street and Golden Gate Way.
David Clark, Committee member, spoke about the Committee’s work toward the implementation of the Downtown Creeks Preservation, Restoration and Development Plan to finalize changes to the City codes, plans, and guidelines as identified in the plan, and the code changes will be before the Planning Commission in October and to the City Council later this year. Regarding 2022/23 goals, they hope to gain Council approval for changes to those changes and they will investigate applying Government Code section 55300(i); the no net loss provision for housing density to allow setbacks on channelized creeks.
Ron Hufft, Committee member, said he has been working on the Arundo issue which is an invasive plant in the watershed and Lafayette creeks. It is fast-growing, water consumptive, endangers banks, and is a fire hazard. He spoke about their work to eradicate it in the major downtown areas of public property where there has been substantial Arundo growth through grant funds, contractor services, and volunteer work. His efforts to eradicate Arundo will now turn to eradication on private property and they formed an arrangement with the Restoration Trust to be their sponsor where they have eradicated 3 infestations on private property, 2 small areas, and they intend to move forward on larger sites. If people suspect they have Arundo on their property, he asked to contact the Creeks Committee or City Hall staff.
Mary Jo Cass, Committee member, said they continue to work to restore the riparian vegetation along creeks which improves the ambience and habitat for native plants and wildlife, improves soils, creates better drainage, filters contaminants, and minimizes run-off into creeks.
City Council and Creeks Committee Meeting Page 6 of 29 September 12, 2022 On their radar for restoration are 1) the west reach of Lafayette Creek along Mt. Diablo Boulevard, extending from the Sotheby’s real estate office to the Stat Med Urgent Care office and eventually install benches; 2) work to plant grass plugs after removal of invasive plants of 7,300 square feet below the Gazebo parking lot and near the pedestrian bridge over the Lafayette Creek at Mt. Diablo Boulevard and Golden Gate Way; and 3) expansion of the riparian restoration and removed blackberry bushes between the park fence and the creek at the Las Trampas Creek area at Leigh Creekside Park at Moraga Boulevard near First Street. In coming months, they will plant native plants and remove remaining blackberry roots and will also obtain funding.
Phil Bradley, Committee member, referred to community activities and Community Day. They worked on the Las Trampas Creek Reach and combined the Gazebo and Leigh Creekside Park, with the idea to restore the creek banks, plant native vegetation, and finish eradication of Arundo at the Gazebo and then removed fallen trees along the creekbank at Leigh Creekside Park, cut back blackberries, removed graffiti, painted picnic tables and benches at the park, and performed weeding. They had 50 people volunteer with 25-gallon bags to clean up, loaded two truckloads of vegetation debris, learned how to better coordinate individual projects, and received additional volunteer interest.
Peter Norton, Committee member, said beginning mid-2021 they were asked to identify creek crossings by roads within the City. There are 7 creeks in town and he and a few members spent time identifying those crossings, determined 36 different spots to hang or install signs on posts, reached out to Scout troops and Brayden Christie wants to make this his Eagle Scout project, with help from several other Scouts. They hope to get the project completed by March 2023.
Mr. Clark spoke of 2022/23 goals: 1) continue to monitor City meetings for items with creek impact; and 2) research and apply for funding to support creek projects in the downtown and other areas.
Mayor Gerringer and Councilmembers thanked the Creeks Committee for their noticeably visible work, questioned and received information on the Restoration Trust sponsorship, commented on the strong team of volunteers, leveraging work for Leigh Creekside Park, Gazebo, and the Rain Garden, funding opportunities and long-term review of runoff.
Mayor Gerringer opened the public comment period, and there were no speakers.
9. CONSENT CALENDAR
Vice Mayor Anduri requested removal of Item 9B, and Councilmember Kwok requested removal of Item A.1. Mayor Gerringer asked and confirmed there were no public requests for removal of items or public comment.
A. Minutes
2. August 25, 2022
Recommendation: Approve.
ACTION: It was M/S/C (Kwok/Anduri) to adopt Consent Calendar Item A.2. Roll Call Vote: 5-0 (Ayes:
Anduri, Candell, Dawson, Kwok and Gerringer; Noes: None).
10. OLD BUSINESS – None.
10. STAFF REPORTS – None.
City Council and Creeks Committee Meeting Page 7 of 29 September 12, 2022
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 adopt Resolution 2022-51, approving certification of the 6th Cycle Housing Element EIR.
Director of Planning and Building Greg Wolff stated staff is before the Council regarding response to questions from the August 8, 2022 City Council’s consideration of the Housing Element EIR. The City is awaiting its comment letter from HCD, but the environmental review has been on-going, and a DEIR has been published earlier this year, and the final EIR was brought to the Council on August 8th with a recommendation to approve from the Planning Commission. The questions have been answered which he briefly summarized as contained in the staff report.
Deputy Fire Chief McAllister described the recent heat wave, predicted impacts on the community and said they applied for pre-positioning funding to add additional search capacity resources to the Fire Department in the event of a major wildland fire. A fire occurred in Franklin Canyon on Hwy 4 and quickly was up to 100 acres. They were able to supply search capacity resources, suppression resources, and additional officers in terms of a mini incident management team and saw the need for evacuations. They immediately implemented evacuation warnings for two of the Zone Haven zones. They were able to do that sooner than normal because they had those resources and additional management in place to implement that. Fortunately, they did not need to implement a full evacuation order and were able to keep it at warnings, which he described and said he was able to answer questions.
Police Chief Alldritt spoke about the continued partnership with fire, whether it is early prevention, preparedness to the actual event, and law makes the decision to put out the evacuation order in partnership with fire professionals understanding fire behavior and what is needed early on. They have wildfire cameras, radio stations, and other things, and understand there are inherent challenges in an evacuation.
General Manager Bill Churchill, County Connection, stated they see themselves as part of the safety net for Central Contra Costa County and have acted in this regard for many years. They have a seat on the County EOS and are part of that role, and as recently as two weekends ago during the heat event the County did contact County Connection and requested them to reserve operators and buses in case people needed to be moved and transported to cooling sites. Or, if a senior center was to lose air conditioning, they could provide buses with air conditioning and be able to get those individuals cooled down.
They provide a myriad of different emergency responses, and evacuation is just one. During COVID, they transported food to those in throughout the county, took over Meals on Wheels and ran the entire program for over a year. They are on call to provide whatever mitigation is necessary for any communities they serve. Another component is that they have mutual aid agreements with all East Bay operators and engage in mutual tabletop exercises to be ready to help.
City Council and Creeks Committee Meeting Page 8 of 29 September 12, 2022 Mr. Wolff concluded the report and said the recommendation is to maintain the same level of significance for the two items outlined in the staff report. They recommend the Council continue the matter to the next meeting so staff can prepare paperwork to certify the Housing Element EIR.
Vice Mayor Anduri said his understanding is that in the County and Lamorinda region particularly good ability to become aware of ignition of fires with the camera and other systems. He asked if there is any circumstance in which they could not get a warning or evacuation order out in time to accomplish an evacuation within Lafayette in the times shown in the Fehr and Peers report to the Council.
Deputy Fire Chief McAllister said there are so many variables such as fuel, wind, topography, time of day, time of year, and others. The staff team worked hard to select some scenarios that were plausible, likely, and had a direct impact on Lafayette with fires originating directly in or immediately adjacent to Lafayette.
They can run the scenarios hundreds of different ways, but they try to find something plausible. There are variables that could impact that, and he would say yes, it could occur, and evacuation would occur with scenarios developed and timeframes given.
Vice Mayor Anduri said the Council received the letter from Mr. Sommer and he thanked Ms. Owsowitz for preparing a response to his letter today. He referred to page 3 under Response No. 3, final sentence:
“Given that estimated increases in evacuation times under various conservative assumptions may warrant changes to the adopted plan which is already updated on an as-needed basis, but per guidance from first responder groups would not substantially impair emergency response or evacuation. The EIR concludes the ATU would not substantially impair implementation of the City’s emergency evacuation plan.” The words he wants to focus on are “per guidance from the first responder groups” and asked if this indicates that the first responder groups who helped set up the scenarios also reviewed the Fehr and Peers report and gave guidance that there would not be a substantial impairment of the emergency response evacuation if the ATU were implemented.
Ms. Owsowitz stated this is a representation of the totality of the process. So, starting with the preparation of the Fehr and Peers memo and City staff’s review of the memo and even before she sent out the memo today, she circulated it back to Mr. Wolff with a specific focus on that exact paragraph because she wanted to confirm the City was completely comfortable with that statement.
Vice Mayor Anduri said he understands the first responder groups and the Emergency Preparedness Commission were involved in deciding the scenarios but when they received the results back from Fehr and Peers with the results, he asked if they then provided guidance that updating the emergency evacuation plan as needed would not substantially impair the response.
Ms. Owsowitz said this is her understanding, but she deferred to Mr. Wolff to speak to this. Mr. Wolff stated the not impairing the emergency operations plan or evacuation plan is not a function of updating it. The updating is a periodic assessment that happens irrespective of any one project. It is best practice and required to update the plans periodically. The conclusion that it did not impair the Emergency Evacuation Plan is not a function of the update. It is a function that the existing roadway network will not be impinged or reduced in any way, shape or form; that on the ground circumstances as a function of the project will lead to increased evacuation times as a function of more people and more cars, and this is what they discussed with the chiefs.
City Council and Creeks Committee Meeting Page 9 of 29 September 12, 2022 Vice Mayor Anduri stated therefore, this is saying that those increases in time would not substantially impair the success of the evacuation plan. Ms. Owsowitz confirmed, and said it literally could not because the roads are not impaired by the proposed project.
Vice Mayor Anduri said in the staff report there were three reasons given for why we satisfied the first bullet under Appendix G; that they are all in agreement that what they are trying to determine is whether implementation of the ATU would impair their emergency evacuation plan. There were three reasons why it would not. One was that during building of any of the projects there are procedures in place so none of the roads would be blocked. The other two he has questions about. One, if you take the increases shown in Fehr and Peers, the roads will be the same, but he thinks everyone agrees there will be more cars on those roads because of these projects. He asked if they are saying in this paragraph “per guidance from the first responder groups that what is shown in the Fehr and Peers report—that level of evacuation time would not impair the evacuation plan. They could still successfully evacuate.
Ms. Owsowitz said yes, this is her understanding.
Vice Mayor Anduri asked Chief Alldritt and Chief McAllister if that is their agreement as well.
Chief Alldritt said in regards to affecting the plan they have in place itself it would not affect the plan. They also want to acknowledge that with any critical incident, whether evacuation, fire, police emergency, they want the response time or evacuation time to be as close to zero as possible. So, any increase in time is always going to be concerning to law and fire when it talks about their response time or the response of other resources. But, as far as the plans developed and in place, those will not change whether there are plus or minus 10 to 20 to 30 cars.
When talking about considerations, as Chief McAllister discussed such as evacuation warnings versus orders, if it is 12 p.m. on a school day with all businesses open for business, what they decide to order, using existing evacuation plans, would potentially cause them to put out warnings and/or orders sooner, understanding the dynamics that come into place with evacuating additional persons on a certain roadway. If St. Mary’s is hosting an event, knowing people will have to go to St. Mary’s Road and Moraga, that will be part of their decision-making on an early evacuation if there is a fire coming into the Lamorinda area. So, when it comes to the plans specifically, the plans stay the same. Their mutual aid agreements stay the same. What can change is understanding the dynamics present at this time, whether it is increased population, fuel sources, and wind could change how quickly they make certain decisions or when they make them.
Vice Mayor Anduri said they have a plan and if an emergency were to happen tomorrow, this is the plan they would use. If they do not change the plan and all units are developed and there is an emergency, they would have more cars on the road. What they need in order to make a determination tonight is whether the implementation of the Housing Element and resulting traffic would substantially impair implementation of the City’s emergency evacuation plan that is carrying out the plan. He has seen two ways of approaching that in the staff’s response. One is at the bottom of page 3 under Response No. 3; that “The City has concluded that the estimated increase in evacuation times under various conservative assumptions may warrant changes to the plan which is already updated on an as needed basis, but would not substantially impair the emergency response or evacuation.” He asked on what basis is that made, or on who’s judgment is that decision made.
Mr. Wolff said everyone on the call tonight contributed to that conclusion.
City Council and Creeks Committee Meeting Page 10 of 29 September 12, 2022 Deputy Chief McAllister added that the written plan provides a framework and the plan changes. It is fluid and it is based on inputs. Some of those other inputs are the number of persons, number of vehicles, types of facilities, noting that he needs more time to evacuate a care facility than he does a college dormitory.
He needs more time to evacuate 6 blocks than he does to evacuate 2 blocks, and he needs different resources. So, the inputs change the outputs and they change the decision-making process which is the reflex time and the decision to initiate an evacuation warning. The bottom line is more people and more vehicles equal more time, which would cause them to change their strategy a little bit earlier and pull that trigger for evacuations earlier.
Vice Mayor Anduri said again, given what he has seen on the Fehr and Peers increases in time under the two scenarios where it is relevant he asked if Deputy Chief McAllister thinks those adjustments can be made. Deputy Chief McAllister said he does.
Councilmember Dawson said in taking the Fehr and Peers time analysis of what the propose it could take, she asked how much that local information is added to the calculations. She asked if there are standards or averages for evacuation when a certain number of people are coming from a certain distance.
Deputy Chief McAllister said there is a back into the Zone Haven product that tells them the number of persons that reside within a zone, the number of structures that are within a zone, and that comes into their calculations.
Councilmember Dawson observed that yes, the time has increased because there are more people, and this will be updated when development has happened. To what ESA said before, depending on what neighborhood you are coming into, it could take 3 hours to evacuate, and in the downtown area and Deer Hill area there is 3 to 27 minutes to potentially an hour, but on average, some people coming from places down towards the Lafayette Estates neighborhood will still be taking at least that amount of time if not longer.
Deputy Chief McAllister said this is an evolving area of study, an evolving area of planning and in the last 5 years in the California wildland fire landscape have changed and have driven change and they are right in the middle of that.
Councilmember Dawson asked if there is a particular timing in bus route plans that County Connection has in place once there is an evacuation warning to evacuate people.
Mr. Churchill said it is a bit “squishy” because it depends and there is a spectrum. In the middle of the day, he has 100 buses on the road if not more at any given time he could bring to bear. If it is midnight, it is a different story and he is having to work to bring people in. If it is a holiday, it is another story. However, sometimes these things develop with time and then when there is notice, the County reaches out to County Connection right away. Like the heat event, while not a fire, they are given advance notice and they send buses and resources and drivers aside ready to deploy at a moment’s notice. So, throughout Lafayette and areas of Orinda, he has bus routes. So, if it is in the middle of the day and he has a route that is running, depending on where it is, the response time can be immediate. If it is in the evening and after routes have closed, then it is a longer period, but he has personnel available all the way up to 11 PM and they have on-call after hours. So, it is a range dependent on the time of day, date of the week, and where the incident is.
City Council and Creeks Committee Meeting Page 11 of 29 September 12, 2022 Councilmember Candell said in the staff report, it said given current conditions, the evacuation was going to be around one-half hour from Happy Valley Glen for fire coming in from Briones. Afterwards, if an 825- unit apartment project is built on BART parking lots, it would add an extra hour for that neighborhood to be evacuated. She asked if the Chiefs believe that an extra one-hour delay is real based on the assumptions that were put forward.
Police Chief Alldritt said he reviewed the report and he is not an expert, so he did not have a specific response. He believes there will be an increase, given more vehicles trying to get to the freeway via the evacuation routes.
Mr. Wolff stated Ellen Poling is present who can speak to the assumptions that were input into the model and they included not having contraflow which would increase the exit or evacuation, thus reduce the overall times. She is available to speak to these assumptions.
Deputy Chief McAllister said running those calculations is not his area of expertise as he is not a traffic engineer. His decision-making process in the field is more based on experience and gut in evaluating the pressures of the incident versus the task that needs to be done. If anything, his gut told him the number was a little high and that it could be accomplished faster.
Councilmember Candell said the question here tonight does not include if it is real or not, but whether the Council thinks there is anything that could be done to their roadways or their traffic flow or adding stop lights, increasing lanes, etc. She asked if they could imagine any mitigations that would really help in evacuating that area, including adding a separate ingress and egress.
Chief Alldritt said, absolutely. Broadly speaking, the more ways in or out it will go faster. This is the concern with St. Mary’s and Moraga Road. They are two lane roadways for another town besides Lafayette’s residents to get to Hwy 24. So, in a perfect world they could have a 4-lane roadway from Moraga, so there are many options when talking about Lamorinda as a whole.
He then spoke of the Zone Haven model which has been built in where it says, if someone is coming from this zone, law and fire should consider these following intersections as priority. So, he would leave this to staff as to whether it is a stop sign versus traffic light could be better, but for them it comes down to control points to better direct traffic.
Deputy Chief McAllister stated it is all incident-driven. One of the first things they do is eliminate access and stop the ingress so they can have use of the roadways for emergency responders and have use of them for egress, if needed.
Councilmember Candell asked if Mr. Churchill if he ever evacuated a school before like what is proposed in the EIR in a wildfire.
Mr. Churchill said no, not in a wildfire. Yes, he has evacuated a school. Before he came to County Connection he ran the Transportation Division for UCLA and his first evacuation experience was when the Rodney King riots hit and the rioters were making their way to the campus and the Chancellor told him his responsibility was to evacuate 75,000 people on that campus. This was a major evacuation that would probably exceed anything that would be experienced anywhere in Central Contra Costa County.
City Council and Creeks Committee Meeting Page 12 of 29 September 12, 2022 He said the closest agency that has is Lake County in recent history during massive fires. The local transit agency was credited for having saved hundreds of lives. They used their smaller buses, which County Connection has as well. The Lake County agency penetrated the neighborhoods and tiny back roads and evacuated residents from the back rural areas. So, they have some experience and he has spoken with them as to how they have done it and worked together to understand what processes were put in place to make that work.
Councilmember Candell said it sounds like even if the Council does not certify its EIR tonight, she asked if staff would get it all done by the time it is required at the end of January.
Ms. Owsowitz said that would be the hope based on nothing else being submitted, everything being very quick. But she wanted to take the opportunity and be clear that the word “mitigation” has two different meanings for tonight. When using “mitigation” to talk about closing incoming traffic to let first responders in, those steps the Chiefs were talking about to mitigate situations, that is not mitigation as one would use the term in CEQA because you would only mitigate in CEQA if you had a significant environmental impact.
Councilmember Candell said a significant impact can be mitigated. She asked that because it can be mitigated, she asked if this means it is substantial, and asked what is the criteria.
Ms. Owsowitzsaid until and unless something is actually a significant impact, legally there is no mitigation.
Legally and factually, they would be precluded from imposing mitigation if they have a less than significant impact. You could absolutely choose as a policy matter to change planning or how they function, but she was just talking about CEQA.
Councilmember Candell referred to the Tahoe case used and said there were mitigations put in for that project for their fire and evacuations, and she asked what those were.
Ms. Owsowitz said they did not look at those because they were not looking at their project. They had different access roads, different egress, and Councilmember Candell added that they were going to widen 267 and add Fire staff, and Ms. Owsowitz said she was unsure but did not doubt that at all.
Councilmember Candell said those mitigations seem like reasonable mitigations in order to decrease evacuation times.
Ms. Owsowitz said they took steps they felt were necessary to reach the level they wanted to be at. She also pointed out that both they, the court in the Save Lake Tahoe Mountain versus County of Placer, as well as the Sierra Watch case which was cited by a member of the public, said by itself, evacuation time is not the legal test for whether an impact is significant in terms of impairing an evacuation plan.
Councilmember Candell said but if there could have been mitigations that made it a lot faster in those cases, she asked if it could have been justified the other direction.
Ms. Owsowitz recited Sierra Watch which is unpublished. They said “Whether a given impact is significant depends on the context. A traffic delay of 2.5 seconds might be significant in some context and not in others.” So, to Councilmember Candell’s point exactly, it depends on the project, the environment, the conditions, etc.
City Council and Creeks Committee Meeting Page 13 of 29 September 12, 2022 Councilmember Candell said if they chose they decide one-hour extra delay is significant, there could be mitigations.
Ms. Owsowitz confirmed and said if the Council chooses to establish a new threshold of significance and not the one in the case law and not the one recommended, the Council can choose to do that. There would be many other decisions they would need to make but can choose it.
Councilmember Candell asked the traffic engineer, Ellen Polling, if she could imagine litigations that could be done that are realistic.
Ellen Polling, Fehr and Peers, said there are some recommendations at the end of their memo for things to consider on the next update of the emergency operations plans and emergency response plans such as things like putting signal timings in place that could be used for exiting the City and getting onto the freeway, manual traffic control, and some other things which is not an exhaustive list. But there are recommendations that come out of this analysis which is part of the requirement of AB 747 which is why the analysis was done—to simply test the range of emergency evacuation scenarios. They developed the three scenarios as discussed tonight with conservative assumptions, evacuating all the Zone Haven zones that need to be evacuated all at once. So, what they have in the memo that looked at the base and then compared the housing scenarios to the base analysis, they show an increase in some of the evacuation times and then they have recommendations for additional steps that could be taken to amend the City’s emergency response plans.
One of those recommendations does talk about things like reverse flow lanes and looking at ways to expand the capacity to evacuate neighborhoods on roads while keeping considerations about pedestrian and bicycle safety in normal times and complete streets policy the City hasso as not to damage the service to those other modes during non-emergency times which is most of the time.
Councilmember Candell asked what are the chances of the Council being able to get any of those mitigations as part of a proposed project if they do not declare it significant and unavoidable impact of the delays.
Ms. Polling said she thinks there is nothing stopping the City and the Emergency Preparedness Commission from taking up those suggestions right away as a matter of regular City administration and policy making.
Mr. Wolff said he would agree with this. The Emergency Preparedness Commission has been sensitive to these issues for many years and have pushed forward improvements which would mitigate the community’s risk to natural disasters. Things like the AM radio communications and the Community Warning System are critical and get out before an evacuation order even comes.
Councilmember Candell said in other projects, they have had the developer pay for these things. She asked what are the chances of the City being able to get the developer to pay for any of those things instead of having the City pay for them if they do not make it significant and unavoidable and ask them to make some mitigations.
Ms. Owsowitz said she sees Councilmember Candell’s point, but she also wants to make sure she understands that the odds are extremely low that there will ever be an individual project that adds enough development to any one location in the City to increase evacuation times by .92.
City Council and Creeks Committee Meeting Page 14 of 29 September 12, 2022 Councilmember Candell said the City has had to zone the BART parking lots and have included it in their Housing Element. Ms. Owsowitzsaid this is a zoning issue, but this assumes every single development that could possibly occur on that site would occur at once. Under CEQA, you must have a significant effect to be able to require mitigation.
Councilmember Candell said in the EIR, they are supposed to imagine all of those units being built. It does not matter when and that they are supposed to look at the overall impact of that and she questioned why they will never be able to implement it.
Ms. Owsowitz said she is saying that the EIR as written does not find this to be a significant impact.
Secondly, if the Council finds it to be a significant and unavoidable impact, everything changes. She questioned the mitigation being requested and what it must be imposed on. A project that increases evacuation times by how much?
Councilmember Candell said she understands, but if they do not do it, then they have no chance.
Mr. Wolff said he does not believe the City’s ability to get project-specific mitigations is compromised by not making a finding of significance at this point in time. Every individual project would be assessed under CEQA and if a given project were to be found to have a significant impact then the City has the ability and authority to impose mitigations on that.
Councilmember Candell said but if the whole thing as big as it is, is not significant and unavoidable, she asked how could the City ever think about it on something less because they will have thrown it out the window forever.
Mr. Wolff said it is because of the circumstances of a given project. What the City has now is programmatic. It is assuming no evacuation route which has been identified would be compromised by eliminating a lane or eliminating a connection or impeding the ability of what they current do and have identified as their evacuation plan. He asked to consider a project developing a valley where there are two means of ingress/egress and the project is designed to eliminate one of those, thus would have only one means. That, as a project CEQA analysis, could identify it as a significant impact and impose mitigations.
Councilmember Candell said if they do not change it to a significant and unavoidable impact tonight and based on the real email they received which screams lawsuit over the City’s Housing Element and EIR, she asked if the City faces a real risk of a lawsuit against their EIR.
Ms. Owsowitz stated outside of Closed Session, staff has provided the Council the response to every comment submitted by this individual.
Councilmember Candell said it is important for our residents to know that if they do this, regardless, they can still sue the City. If that happens, a CEQA lawsuit is not covered by a developer but by the City.
City Attorney Mala Subramanian said this is correct.
Councilmember Candell said if a typical lawsuit goes to the trial court and appeals court and the City pays it, she asked how much something like this cost them.
City Council and Creeks Committee Meeting Page 15 of 29 September 12, 2022 Ms. Subramanian said no, this would be a confidential discussion if they did receive a lawsuit at that time.
Councilmember Candell referred to the other case about the noise ordinance and how averaging should not be used, she asked how can it be that the decision does not reject averaging because it seems to dilute the noise by averaging over 24 hours just like they are averaging the delays over multiple routes. The appeals court overturned it based on cases where the single events were worse, like a single evacuation route was worse. She read the case to say the court totally agreed that averaging should not be used.
Ms. Owsowitzsaid she has been working on this case since 1998. The Port of Oakland was the lead agency there because the airport was their property and they looked at noise over an average 24 hours because that was their threshold and the court did not say that that per se was wrong. What they said was there was expert opinion on sleep impacts from single noise events. In other words, people living in Berkeley who would be awoken by a single nighttime flight and perhaps kept awake by that single noise event, and they had not evaluated for single noise events. It was not per se they were averaging over 24 hours was wrong. It was that they did not look at the impacts of single noise events at all and expert opinion was introduced that those single noise events had sleep impacts, which the Court of Appeal found to be a potential impact on the environment. Everyone in the flight path of Oakland Airport woken up by a single event during night flights. This is the BKJOB case.
Councilmember Candell said so a single person dying because they are in the driveway for an extra hour does not count the same way. She sees that a single person may lose their life by a single event versus the entire community not losing their lives over a single event.
Councilmember Kwok said he was comforted to know Deputy Chief McAllister said he has significant experience in large scale incident management because their discussion tonight relates to how they would safely evacuate residents in a large-scale incident. The scenarios 1, 2, and 3 generated really talk about possible scenarios but evacuating everyone north of Hwy 24 is a big case. The results of the three scenarios came back with a general evacuation of between 30 minutes and almost 4 hours on the longer side. He asked in his experience with other cities he asked if this range should be considered average, really long or really quick.
Deputy Chief McAllister said it is hard to provide a direct answer. The larger the zone the larger the number of persons and homes that must be evacuated, the longer it takes to accomplish. As he mentioned, there are so many variables. He thinks it is reasonable that they could accomplish an evacuation in the windows provided. Those are reasonable assumptions and conclusions based on his experience.
Councilmember Kwok said even though the City is going to increase population this will necessarily increase the time of escape and he is comfortable with these numbers, and Deputy Chief McAllister said that is fair to say. It all translates to reflex time. The larger the task, the more reflex time both emergency services and the community needs to respond to that request.
City Council and Creeks Committee Meeting Page 16 of 29 September 12, 2022 Councilmember Kwok said there are many members of the community who have written to the Council in the last few days and the last few months concerned that their neighborhoods might be constricted, with one way out, and this is applicable to many parts of the City. With increased population, there is a heightened concern it increases their risk to be safe. His understanding is that when getting to an incident command and looking at the weather and variable, he is calculating that when a neighborhood has constricted access, they will act sooner.
Deputy Chief McAllister concurred and said the goal is to provide as much notice as possible. They would like to go to warning first to get the community aware of the event before going to an order. There are circumstances, however, where they go straight to an evacuation order.
Councilmember Kwok said with Zone Haven they can open up and see the data of how many people who live in certain areas, and identify where neighborhoods are more constricted than others, which would provide information to know which zones to evacuate earlier. Deputy Chief McAllister confirmed and said those data points go into their decision-making process and is available to incident commanders at every site.
Vice Mayor Anduri referred to the tables prepared by Ms. Polling for the FEIR. Table 2-2 for Scenario 1 shows that for the lower Happy Valley Glen neighborhood for a direct Deer Hill access, Deer Hill/SR 24 east, with the distributed sites alternative, the evacuation time would be 1.44 hours. For Scenario 2, the existing situation for Mt. Diablo East / SR 24 east is 3.02 hours which is twice as long an evacuation time as for the Glen neighborhood. He asked if this states that for the last person out of the area covered by this report it will take them twice as long as for the last person in the Glen to get out.
Ms. Polling said yes; those two scenarios have a different number of evacuees and cars and different routes available to them because Scenario 2 is the Lafayette Reservoir scenario where they are evacuating all downtown and some of the residential neighborhoods as well. She would call this analysis a bottleneckbased analysis and there are several different ways you can do these evacuation time assessments and the way you choose to do them comes out of the tools you have available and Lafayette’s network of context. What they did for each of the scenarios is look at all reasonably available routes. They started the first round by trying to get everyone out to the east because fire and police said if there is a fire for Scenarios 1 and 2, they would rather not have them be going towards the Caldecott Tunnel and potentially where the fire could potentially spread. But they realized this limited their routes to the freeway. So, with the agreement of the group that originally set up the parameters for the analysis, they allowed them to also get onto Hwy 24 going westbound, and that opened up for Scenarios 1 and 2 some additional routes.
Then, they did several passes to see what would be the time for people using these various routes, assuming they take the most logical route perceived by them and also based on evacuation messaging.
So, this is the way they did the analysis and so this is what results in approximately 3-hour time to get to that Mt. Diablo / SR 24 east exit route. They balanced through several iterations to get probably not the optimal times, but reasonably balanced times. In other words, trying to send more folks to some other route was not going to reduce that 3-hour time by a lot.
Lastly, this is what she would call a static analysis. It is just looking at the bottlenecks, assigning traffic and looking at results and say no one is going to go for 5 hours somewhere if they realize they can get out faster another way. A dynamic analysis which is another option would iterate through an actual model they would develop and probably get better evacuation times.
City Council and Creeks Committee Meeting Page 17 of 29 September 12, 2022 Vice Mayor Anduri likened it to a worst case, and Ms. Polling said yes. Vice Mayor Anduri said every neighborhood that is impacted in Scenario 2 will take twice as long to evacuate as it will take the Glen to evacuate even under the ATU scenario, the increase with the Housing Element.
Ms. Polling said this is correct, and this is a function of more vehicles evacuating and fewer available routes. Mt. Diablo is one of the main ways people get to the various Hwy 24 access points. In Scenario 1, one could come down Upper Happy Valley versus Happy Valley. Some of the neighborhoods can access Pleasant Hill Road directly, so there were more ways out.
Vice Mayor Anduri said as a follow-up to Councilmember Candell’s question, hypothetically, if the Council adopts the FEIR in the form before them. It is a programmatic EIR. In the future, if one of the projects is developing a housing project on the BART lots. He asked if that project would require a full EIR, some level of CEQA analysis, and whichever the answer is, would a proponent of the project be able to say, sorry, you cannot say there is a significant impact from my project because the Council adopted the FEIR back in 2022 and said there was no significant impact.
Ms. Owsowitz said to the first question, yes, if there is a discretionary approval required there is some level of CEQA required. She could not predict it is an EIR, but she was not sure how much housing they are talking about.
Vice Mayor Anduri suggested using 622 units.
Ms. Owsowitz said it would most likely require an EIR. She pointed out that Ms. Polling’s evaluation was based on many scenarios. If the City certifies the EIR and at some point the State approves the Housing Element and all of this happens, and then someone comes back and proposed housing on the BART parking lot. The analysis of evacuation times will not be this any longer. It will be specific to the site, specific to what any fire scenarios are considered appropriate for that site, and traffic issues are considered. For instance, she does not know how that project will be designed in terms of ingress and access points. It may be totally different than what is predicted here. Because of the variety of different factors, she doubts the data in this table will be the only relevant data to such an analysis if that housing project was proposed on the BART parking lot.
Vice Mayor Anduri said therefore, there would not be precedential value to this decision because the facts will be different for a specific project as opposed to a program.
Ms. Owsowitzsaid it is highly unlikely. She cannot predict the future, but she would think it highly unlikely.
Mayor Gerringer opened the public hearing and public comment period.
Mrs. Sommer ceded her time to Scott Sommer.
SCOTT SOMMER said what is before the Council is the adequacy of a proposed EIR and certification that is basically an analysis of significant environmental impacts. A lot of the discussion tonight with the capable Chiefs have been about mitigation issues if there is a significant impact which does not address the main issue before the Council.
City Council and Creeks Committee Meeting Page 18 of 29 September 12, 2022 He said the Council heard Mr. Wolff pose or argue for a sole EIR standard; does the project substantially impair a response plan. What the Council is dealing with here is CEQA guideline 15126.2(a). The EIR should evaluate any potentially significant direct, indirect, or cumulative environmental impacts in areas susceptible to hazardous conditions, e.g., wildfire risk areas. The CEQA guideline appendix G, XVII(d):
Would the project result in inadequate emergency access? Subpart (a) also talks about would there would be a conflict with a program or a plan. This is one of the questions and is not the only question before the Council. For staff to present this as impairment of a response plan as an issue is simply a false standard of CEQA.
In the letter which the Council received, on page 3 under his paragraph that starts with “Second”, the Draft EIR and comments in Mass Response 1, “completely failed to address the key question on wildfire and evacuation. Does this 1-hr. increase in evacuation time for the Happy Valley Glen neighborhood result in risk of death? It is the same thing which he read from CEQA Guideline; Appendix G. Would it result in inadequate emergency access? There is no explanation of that in the Draft EIR or in the comments. In fact, the staff response on page 3 is missing a caption where he thinks they meant Comment 5 which was left out. “Mr. Sommer asked the EIR about the .92 hours delay.” This is a very telling part and very much the heart of several Council’s comments tonight. The CEQA analysis on “potentially significant impacts on the environment”, not “impacts on a plan”. He asked to look at the response to Number 5: “Staff recommends the threshold presents a single question, whether the ATU would substantially interfere with or impair implementation of a plan.” That could be one question. It is not the only standard before the Council tonight. So, if the Council is wondering whether it is susceptible to a lawsuit, the answer is “yes”.
Then, in going on and looking at the conclusion, “Staff argues that the estimated evacuation times…..but believes it would not substantially impair emergency response or evacuation.” End of comment. He asked what this is based on? There is no explanation, facts, scientific or objective data. It is just a pure opinion, and most of this is “trust us with a future plan but they are not going to look at the environmental impacts now.” Most of what has been addressed tonight would be a mitigation. Several Councilmembers were quite accurate. If they go ahead and say this project has no significant impacts, although that will not preclude absolutely a project EIR that might need mitigation. EIRs for General Plans, Specific Plans, and regional things are cited all the time in project EIRs. If the Council comes back now and says there are no significant impacts from this on Happy Valley Glen on the two-lane exit road, etc. it is highly likely it will be way more difficult to impose those mitigation requests later. This plan would be cited against the City.
Someone mentioned the cost of a lawsuit. The City tried to defend its Brown Act practices and spent over $1.1 million in attorney’s fees on two boutique law firms in San Francisco to get a ruling that said the Brown Act does not allow a City to forte its duty of public disclosure in this manner, and then had to confront $118,000 award of attorney’s fees. This case cost over $1.2 million. So, he can only say there are many reasons not to take a risk. He does not have the time to address a lot of things in the memo.
There is a lot of naysaying, partial truths, but the simple fact is that the standard being urged tonight is incorrect. There is a risk and for policy, for common sense, and CEQA standards, he asked not to certify the EIR in its present for. He asked to send it back and have the analysis done properly on Happy Valley Glen.
City Council and Creeks Committee Meeting Page 19 of 29 September 12, 2022 ROBERT LAVOIE said it does seem like the increase of over an hour on the Happy Valley Glen area cannot be anything less than significant. When dealing with narrow roads, once you hit the capacity it shuts down, so he is reminded of the turning crossroad in the Berkeley Hills fire where several people were killed which had a sharp turn, was narrow and difficult to see in the smoke. He sent in a comment and it bounced back because the City Clerk was out, and he did not see it in the published comments. The changes in State law regarding density bonuses are not requiring adequate parking. So, if there are 1300 residents in the BART area, the thing they learned at the City Council Subcommittee with the Planning Commission last week was that they noted the seniors had a list of people waiting for parking spaces because they did not have adequate parking, and they were looking at adding more units. Senior housing is probably where you expect to have the least amount of vehicle requirements, but if there is not sufficient BART parking he could see cars going up the narrow streets as people try and find places to park, which would compound this whole analysis.
He did not understand why the analysis on Table 2.2 with the two scenarios shown in the separate columns, I had .92 hours increased for the Glen and the other was only .2 hours for the downtown only option. To him, it seems if all the houses are being packed in the downtown that would have a greater impact on the Glen and the ability to evacuate than having that over at the BART station. So, it seems counter-intuitive, and he thinks .92 hours is still significant.
LIBBY HENRY said she sent a letter and hopes everyone was able to read it, appreciates Mr. Sommer’s letter and his input and comments earlier, and people like Patty Battersby who lives in Happy Valley Glen.
She might have missed something, but it seems like the EIR is talking about that half-mile radius of the BART station for development which she thought the other days when talking about the MTC agreement, everything north of Deer Hill Road was taken off the table. The high fire severity zone designation was made by the State of California in hopes that people are not going to develop those areas because it is not safe. She has experienced fire with four fires by her house growing up, and it is scary. The whole idea is that it is okay if you only lose 2 people as opposed to 80, the emergency can be mitigated, and it is insignificant. She is tired of hearing this entire idea of “insignificant impact” and people’s lives are not insignificant. Children are not insignificant, schools, property are not insignificant, and she urged the Council to reject this DEIR as is because it does not consider human life as it should.
PATTY BATTERSBY said she sent in a letter and she finds the comments from the EIR consultant troubling which was, “If it is less than a significant impact it cannot be mitigated.” The biggest concern that Happy Valley and the Glen has is that they are in a very, very high fire severity zone. They have one narrow road out and if there is a fire engine that must come up to fight the fire in the Box Canyons that they back up to, they will not be able to get out. She thinks it is very important that it be changed to say that fire danger is significant in the Happy Valley Glen area shown as an alternate site. Otherwise, she has a grave fear there will be a problem with getting anything mitigated. She also finds troubling was the sign that has ironically been placed at Deer Hill and Happy Valley Road that shows it is a very high fire zone at this point.
She asked the Council to consider what is happening in California. They are having firestorms and not just having small brush fires. Making it significant is something that must be done now to protect residents in the future.
CHERYL MACDONALD said it seems there were many concerns brought up in public comments that give her concern that this should not be done in haste and they should not act on it tonight and take time to figure this out and get it right for the City and its residents. There have been concerns brought up by the Council and she thinks there is too much concern and asked it to be brought back to the drawing board.
City Council and Creeks Committee Meeting Page 20 of 29 September 12, 2022 Mayor Gerringer referred to questions relating to Table 2 and the disconnect between the two scenarios.
Ellen Polling said she believes the question was for Scenario 1, the longer evacuation time for the distributed sites as compared to the downtown only. The reason is the distributed sites includes the BART parking lot sites whereas downtown only does not, so there are more evacuating vehicles for that scenario.
Mayor Gerringer said the remaining public comments were concerns and comments. She asked Mr. Wolff to explain what the staff recommendation is to do tonight.
Mr. Wolff said the Council is being asked to continue it with direction to staff to prepare the resolution which would certify the EIR for the next Council meeting.
Mayor Gerringer said Councilmember Candell and Vice Mayor Anduri spent time asking clear questions about the impact if the Council does not change the level of significance this evening for the Glen and the impact on future projects. Mr. Sommer seemed to say the responses to Vice Mayor Anduri and Councilmember Candell’s questions were, in his opinion, were not accurate. Each project would have some level of significance, and that each project will be determined on its merits. The argument that the General Plan and Housing Element EIRs are often used to challenge that, and she asked for input on that.
Ms. Owsowitz said it is not unknown for future discretionary projects subject to CEQA to tier from rely in some way an existing program EIR. This does happen. That said, for them to tier from an existing programmatic EIR, they must show why their individual project doesn’t result in any new or more significant impacts as to their project in their area. You can only take your impacts from the area where your project is and those impacts where the development is analyzed. Even though she cannot predict hypothetically what level of environmental review would come and to what degree it would potentially tier from the programmatic EIR, it is not a foregone conclusion in the programmatic EIR is per se the same as the conclusion in a subsequent level CEQA document.
Mayor Gerringer said when looking at evacuation routes and plans and having heard from public safety first responders that they believe they could conduct the evacuation and implement the plan. Mr. Sommer said this is not the question. The question is how do they determine the level of deaths in this. In his original letter, he says it is 2 to 81, and she asked if this is something within CEQA that is required, or she asked how this is done.
Ms. Owsowitz said she was somewhat confused and pulled up her CEQA book and read what Appendix G thresholds are visa vi wildfire. It is true, there are multiples and she can share them because they are important. The analysis they prepared for the staff report and responses to comments was directed by the questions they received from the Council at the last meeting.
So, in some ways it was focused because it was focused primarily on Councilmember Candell’s comment on impact of 4.17-1. This impact reads, “If located in or near responsibility areas or lands classified as very high fire hazard severity zones would the project substantially impair an adopted emergency response plan or emergency evacuation plan.” That is reflected in the EIR as impact 4.17-1.
City Council and Creeks Committee Meeting Page 21 of 29 September 12, 2022 There are three other thresholds under wildfire—whether the project, due to slope, prevailing winds and other factors would exacerbate wildfire risks, would the project require the insulation of infrastructure that may exacerbate fire risk, would the project expose people or structure to significant risks as a result of runoff, post-fire instability or drainage changes. These were not thresholds they focused the responses to comments brought for tonight’s hearing. They did focus on the threshold as to whether the project could substantially impair an adopted emergency response plan or emergency evacuation plan. She thinks CEQA itself reflects what it is about and what it is looking at. It says impairing emergency response plans, so that is what CEQA is looking at.
Vice Mayor Anduri said Mr. Sommer in his comments pointed out or said in his letter that “Risk assessments are specifically required. CEQA Guideline, Appendix G, Section 17 requires evaluation of whether the project would ‘result in inadequate emergency access’.” Therefore, he asked if this is something that needs to be specifically addressed, and if so, has it been addressed, or he asked if they have indirectly addressed it.
Ms. Owsowitz said it is addressed in a different section of the EIR, which she can pull up. It may be something that Mr. Luke Evans from ESA or Mr. Wolff can address, but that is a different threshold and it results in inadequate emergency access is typically building something that blocks the trucks. This threshold was one they did not receive a comment on and the EIR does address it and finds it less than significant.
Luke Evans, ESA, said this question is almost always related to a project-specific analysis when looking at a project that is presented to the Council, such as an apartment building. This is when the City plan checkers and designers would look at it and determine if there is adequate emergency vehicle access that would meet defined standards the City has. So, that is something they did look at in the EIR, but they looked at it on a program level. Since they do not have specific projects before them now, it is not something they could get into detail on. The presumption would be that whatever projects could be proposed would meet City guidelines with respect to emergency access. This is how they came to that finding of ‘less than significant.’
Vice Mayor Anduri said it is clear in the discussion and in the comments they received from the public that a distinction needs to be made between the legal meaning of the word “significant” as used in CEQA and the word used outside of CEQA, and the legal meaning of the word “mitigation” in the way mitigation is used outside of CEQA. He asked Ms. Owsowitz to address this because from his standpoint, the Glen is in a very high fire severity zone. The risk of fire danger is significant. There is no doubt about that and the way the word “significant” is used in the English language, the risk is significant. In terms of CEQA and whether there is a significant impact from the program that the EIR is analyzing, he asked if that is a different standard.
Ms. Owsowitz confirmed this is correct. The basic way she thinks about CEQA, and she thinks Vice Mayor Anduri is right—these words have plain meaning in the English language and then they have legal meaning in CEQA. One of the great ironies in CEQA is there are drafts and Final EIRs and they are two totally different documents. Most people assume a draft is an early version of a final, but CEQA does not work that way. Sometimes CEQA’s terminology just does not match plain English language. She suggested blaming Ronald Regan who adopted it in 1973.
City Council and Creeks Committee Meeting Page 22 of 29 September 12, 2022 Councilmember Candell said the legal meaning for significant and unavoidable impact in a programmatic EIR because there is no project and because they do not have any CEQA legal mitigations available to them, it seems like it is the only answer for this issue in saying the people are in their driveways for an extra hour because there are not any mitigations possible because they do not have a project. She asked if this is one way to look at that is because they have not been offered any mitigations.
Ms. Owsowitz said, no. She thinks they heard tonight from Ms. Polling and from the Chiefs there are a variety of steps such as signal timing and others that could be taken now that Ms. Polling’s memo recommends. So, in terms of plain language mitigation, there is nothing that precludes that at all. In terms of mitigation that would be adopted into the programmatic EIR, it is correct that CEQA does not require mitigation for less than significant impacts. This is true.
Mayor Gerringer said it seems the primary question is whether the Council has any changes they want to provide to staff. The staff recommendation is they believe the EIR as presented does meet the requirements and that staff recommends returning at the next meeting with a resolution.
Vice Mayor Anduri said he is ready to ask staff to bring back the resolution for consideration at the next meeting. In terms of discussion, he wanted to address one point Mr. Sommer made. On page 3 of the City’s response that BBK prepared late this afternoon, it says “Staff recommends that the threshold be read as presenting a single question whether the ATU would substantially interfere with or impair implementation of a plan. In this case, as documented in the Final EIR, the City has concluded that the estimated increase in evacuation times under various conservative assumptions may warrant changes to the plan which is already updated on an as needed basis, but would not substantially impair emergency response or evacuation.” What he jotted in the margin here is just what Mr. Sommer raised—one what basis? So, he therefore asked Chief Alldritt and Deputy Chief McAllister earlier the specific question; do they consider the increased times would not substantially impair emergency response or evacuation, and the answer received was they did not think it would. So, he takes that as the basis for reaching the conclusion and moving forward.
Councilmember Candell said in addition to that, besides the recommendations from the traffic consultant, she would like to have the input from the Chiefs from real hardware, like timed lights, and other items that could help speed up the evacuation. She would like a better list and not just the traffic consultant’s list but have the Chiefs weigh in on this and say what they would do in their efforts in evacuating the Glen faster and what that would look like, including hardware and infrastructure changes.
She also would like the CEQA attorney to bring back a list of the cases of examples from cities who have been sued for programmatic EIRs or Housing Element EIRs like this to help assess the risk the City may face if there are similar cases that exist.
Vice Mayor Anduri asked if this would result in a Closed Session in advance of the meeting.
Ms. Subramanian stated they would not be publicly providing any of this information to be clear. She also would like to confirm the entire Council would like this information to be presented back confidentially as opposed to in a public staff report.
City Council and Creeks Committee Meeting Page 23 of 29 September 12, 2022 Councilmember Kwok said he would be neutral on that request. Vice Mayor Anduri said he is assuming that by virtue of the assistance BBK has provided in helping with this FEIR, and he is well-aware there are many challenges to EIRs, and they can be expensive. He is not sure what benefit it would be in learning of other challenges. He has no doubt that any EIR can be challenged, but he will be voting to approve it with the understanding that the City’s legal counsel believes it is an adequate EIR.
Mayor Gerringer said she also agrees the EIR is adequate. She was not sure about spending extra resources currently makes sense. She referred to the Chiefs coming back with a list and not Mr. Churchill and Ms.
Polling. She asked if the idea would be that they return with a list and it would become an appendix in the EIR. If that is the case, she wants to understand timing and bandwidth, or she asked if it was also requested in deciding on whether or not to support the EIR as it is now.
Councilmember Candell said it possibly could be both and it depends on what the list looks like. She would like to see the traffic consultant to weigh in.
Vice Mayor Anduri said he agrees with Councilmember Candell that he would like to see input from the Chiefs on things that can be done to improve the evacuation times, but he thinks this is separate from what the Council is doing on the FEIR. It comes down to common sense mitigation and legal definition mitigation pursuant to CEQA. They do not need to do this, and he was not sure if they need to do this as part of CEQA. They should do this as part of their public policy to make evacuation safer.
Ms. Owsowitz said she thinks that is correct. The agenda item is whether to direct staff to come back with a resolution certifying the EIR or to give staff other direction.
Ms. Subramanian said to go to Vice Mayor Anduri’s question is given that we do not think it is necessary as part of this EIR discussion, it can be brought back as a separate discussion to request those items and to see what can be implemented and costs associated with those items.
Councilmember Candell said since the Council has not voted yet on whether it is significant and unavoidable, she asked whether that is relevant to that discussion if they come up with items that are really great that can be made part of the process.
Mayor Gerringer asked the City Attorney on whether they should vote on the direction to staff. Ms.
Subramanian said the Council can make a motion on the direction to staff to prepare a resolution to certify the EIR as presented.
Mayor Gerringer asked and confirmed Vice Mayor Anduri is ready to direct staff to bring back the resolution based on the staff recommendation and not making the change to the significant and unavoidable based upon the discussion tonight, input from first responders and the questions the Council has asked.
Councilmember Dawson said she agrees with this direction and she also would think the mitigation would be brought up as a sense of policy for the Safety Element notwithstanding wildfire is a priority for the Council.
City Council and Creeks Committee Meeting Page 24 of 29 September 12, 2022 Councilmember Candell said what Mr. Sommer was saying was any project that goes in at the BART station is that if the Council does not make it significant and unavoidable now the chances of them getting a developer to make any mitigations at all for a project is zero. So, the City will bear all costs for the development for an impact the developer will cause. This is how she looks at this, and she is not willing to give that up.
She did not think she was going to have to make this plea tonight, but this is very personal. Her husband was in the Oakland Hills Fire and lived at the Parkwoods, the first apartment building when you come out of the Caldecott Tunnel. He was in one of the back units when he got evacuated the day before and then he got evacuated the day of the big fire because they did not put it out enough. When he left his apartment, he took his golf clubs, car keys, left his wallet because he thought he was coming back. By the time he got to the overpass he took a picture of the Parkwoods and it was a mushroom cloud. She explained all of this to him and he knows the Glen, and she asked him would he have made it if he had to wait another hour to evacuate that day, and he said nobody would have made it. Her aunt and uncle lived on Hiller Highland and had they gone out and taken a right rather than a left, they would have died on Sharon Cross.
These things happen very fast. Fire was passing her husband by the time he drove out the in door and got to the overpass. This was the biggest fire storm in California up until the ones recently and it was only 6 miles from Lafayette. Therefore, this is nonsense in terms of not declaring an extra hour in driveways being insignificant. She thinks it is real and it will tear the City apart as residents do not think the Council cares about them and their safety. We all do, but to say it is not significant is going to bring a lawsuit to the City. She questioned what the downside would be. All they do is declare it, and then when it comes up they will mitigate it. It will hold the City accountable as well and she takes that very seriously in protecting residents, and it seems they are not protecting their residents here. All the letters are very emotional about their safety, and the Council thinks they will be safe without any sort of responsibility attached to that and she thinks they are opening up themselves to a lawsuit as well as anger. Therefore, she does not agree with this decision at all if this is the direction the rest of the Council takes.
Mayor Gerringer said they have talked about this and the questions about going in the direction of approving the EIR and they can still hold developers accountable for mitigations. She knows this has been more difficult, but she wants to make sure they fully understand that. This does not preclude the Council requiring developers or working with developers to mitigate as they have with other projects and work with improvements to improve the evacuation plan and timing to get residents out, recognizing there can be extreme situations. She asked if this precludes the Council from working with developers or requiring developers to have mitigations in their projects at BART.
Mr. Wolff said the programmatic EIR would not preclude the ability to or the obligation to do CEQA and then the potential to require mitigations for identified significant impacts. If or when a project is proposed, it is subject to CEQA, and if impacts are identified the City can impose mitigation measures.
Councilmember Kwok said he was supportive of Vice Mayor Anduri’s suggestion to move forward. It is an excellent conversation and he salutes all Council colleagues, staff, and appreciate the Chiefs for being here and Mr. Churchill. He has learned a lot tonight. This is difficult for him because of the legal, technical, and emotional issues that are tied up in this topic. He is very worried about the climate crisis and the impact of wildfire, and they need to build resilience in the community. It is their job as City leaders to do everything they can to protect residents from wildfires and they will need everyone’s help.
City Council and Creeks Committee Meeting Page 25 of 29 September 12, 2022 He is not favoring to change the finding of significance just to put developers on the hook to pay for all the changes the society needs to do. He thinks developers can contribute towards their impacts, but even if nothing is built there, there will be wildfire risk they must work on, and his interest in the Emergency Preparedness Commission is about getting all levels of society to recognize the urgent risks ahead of them and expend the effort and the dollars to do that. Therefore, given what he has heard tonight he feels much more comfortable about going forward with Vice Mayor Anduri’s suggestion based on what the Chiefs have said, as these are numbers they have dealt with before. They have better technologies and so he thinks a finding of less than significant is not that they feel people, or their properties are less than significant, it is a CEQA legal term and he would support staff’s current recommendation.
Councilmember Dawson concurred and echoed comments of Councilmember Kwok.
Vice Mayor Anduri referred to the questions he asked Ms. Polling about the chart and evacuation times for the Glen with the distributed plan was 1.4 hours and for almost all other areas under Scenario 2 were 3 hours. He is relying on first responders and their experience in what they are telling the Council. Going forward as policy makers, at some point he would like to get some indication, given variables, that if a fire is spotted in the middle of Briones and there are 80 mph winds blowing south, how much evacuation time is necessary. He asked if 3 hours is unreasonable as this is twice as much time as the Glen. It is hard to decide about what they should do without knowing all variables, and so he would like more information on that going forward.
ACTION: It was M/S/C (Anduri/Dawson) to direct staff to prepare and return a Resolution approving certification of the 6th Cycle Housing Element EIR to the September 26, 2022 meeting on the Consent Calendar for adoption. Vote: 4-1 (Ayes: Anduri, Dawson, Kwok and Gerringer; Noes: Candell).
BREAK
Mayor Gerringer called for a break at 10:59 p.m. Councilmember Candell announced she would not be returning to the meeting.
Mayor Gerringer then reconvened the regular meeting at 11:05 p.m.
Noted as Absent:
Councilmember Candell was noted as absent.
13. ITEMS REMOVED FROM CONSENT CALENDAR
A. Minutes
1. August 8, 2022
Recommendation: Approve.
Councilmember Kwok announced that he submitted comments to the City Clerk that enhance the clarity of the minutes. Mayor Gerringer asked and confirmed with the City Attorney that the minutes can be continued at which time the corrections will have been made.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Kwok/Anduri) to continue the August 8, 2022 minutes to the September 26, 2022 meeting. Vote: 4-0-1 (Ayes: Gerringer, Anduri, Dawson, and Kwok; Noes: None; Absent: Candell).
City Council and Creeks Committee Meeting Page 26 of 29 September 12, 2022 B. Response from Council to the MTC-ABAG Transit Oriented Communities Policy Recommendation: Receive and file.
Vice Mayor Anduri said he requested this be removed in case anyone wanted to do more than just receive and file the response.
Mayor Gerringer said they could submit the letter to the full MTC Board, but her understanding is it will be in the packet. She does not disagree that they did the work and they could narrow it to one priority and not have all 5 or submit the letter as is.
Vice Mayor Anduri said his impression is it will not make any difference, which is disturbing. In picking policies, in their Housing Element there are several policies that they are committed to pursuing. None of the other options are in the Housing Element, so he asked to imagine the amount of work that will be required. If this goes forward, he questioned what they would do. He asked if they would consider amending the Housing Element, as it is an unfunded mandate with additional expenses being put on the City, which is almost unimaginable to do this.
Councilmember Dawson questioned if this should be the response about the unfunded nature of this and potential costs to the City.
Vice Mayor Anduri asked if one option would be to say as an additional element in each of the categories or another program approved by MTC staff. He suggested an approach to ask MTC if there are enough programs the City is committed to undertaking in its Housing Element and to let them do this as part of the list.
Mr. Wolff said staff can add programs to their Housing Element, but there are implications of doing so which are unfunded and have on-going costs associated with them. A higher likelihood approach would be for staff to look at the programs in the Housing Element and revise them to reflect things that are on MTC’s list if they can do that. He thinks it would be more difficult to have one or more programs from their Housing Element approved by MTC. This is not to say it could not happen, but MTC has yet to publish the implementation rules and if they saw parity between a program and what it would accomplish in the Housing Element and what they listed as an example, they would have the capacity to see it as an approved equal as it is implemented.
He did not think there is a high likelihood of having the MTC Board make that change as it is currently drafted just based on attending and hearing the testimony and action from the subcommittee. The work of balancing all competing interests and prioritizing the goals of Plan Bay Area has been done by the Planning Committee and Administrative Committee and that the Board will rely heavily on their recommendation.
Vice Mayor Anduri asked if the other small cities happy with all of this, and Mr. Wolff stated not to his knowledge.
Mayor Gerringer said in the four amendments the City requested the excluded areas in the very high fire severity zones, she asked if there was discussion about this at the MTC Planning Committee other than staff reading it into the record. Mr. Wolff stated no.
City Council and Creeks Committee Meeting Page 27 of 29 September 12, 2022 Mayor Gerringer said they were hoping to push MTC to be ahead of the game. The legislature has tried over the last couple of years to put legislation forward to exclude development in those areas, so if they were going to prepare another letter, she suggested focusing on that, as well as to comply with Tier 4 requirements on commercial and parking as well as residential, but she was not sure how much staff time they wanted to spend. The Council has a meeting on September 26 and the MTC Board meeting is on the 28th, so they could bring something back.
Vice Mayor Anduri said he doubts anything that comes in a day before will have any impact.
Councilmember Kwok said staffing time is so tight as is, and he would like to save staff time. Mayor Gerringer said they could send letters individually, but she agrees with the limited staff time in terms of weighing the cost benefit.
Vice Mayor Anduri said it appears there were no speakers there. He asked if other small cities were asking in writing for changes. If Lafayette is just out there by themselves, he thinks they should just wait and try to influence the regulations as they come out.
Mr. Wolff said he would recommend the latter approach. He thinks the accommodation for small cities under 30,000 to comply by meeting Tier 4 residential densities was a direct reaction to prior small communities voicing concern. Staff had asked that the recognition apply equally to the parking management and commercial densities, but the Committee did not entertain that. He thinks there was some movement of the needle based on prior public comment from July which made that accommodation, but that is as far as the committee was willing to go. There were staunch voices against that provision and many public speakers said that carve out or special treatment for small cities should not be there.
Councilmember Dawson said staff mentioned multiple speakers called out Lafayette, Orinda, Atherton, and a few others, and she asked in what context was this. Mr. Wolff said it was that the small city provision would apply to and that all of them are high resource areas, and there is an allegation of those communities not wanting to do their part even though he thinks the City’s record shows they have been doing their part and exceeding their last RHNA numbers.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Kwok/Anduri) to receive and file. Vote: 4-0-1 (Ayes: Gerringer, Anduri, Dawson, and Kwok; Noes: None; Absent: Candell).
14. 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 everyone to sign up for Night at the Library to be held October 15th. He also said at a past Council meeting he requested a report about dead trees and dead grass/ vegetation. He asked what are they allowed to do via City, County, or State regulations to reduce fuels and improve the situation. He found an email from the City Manager to the Council about one year ago regarding dead trees on EBMUD right-of-way and the City was going to cut them down and approach EBMUD about payment. He asked if this was done or not.
City Council and Creeks Committee Meeting Page 28 of 29 September 12, 2022 City Manager Srivatsa stated the City has filed a claim and the City Attorney’s Office assisted staff, but they have not been paid.
Councilmember Dawson said this has come up in the Emergency Preparedness Commission and the Deputy Fire Chief indicated they are conducting enforcement, and she agreed this should be brought forward to educate the community.
Councilmember Kwok reported he attended the League of California Cities’ Annual Conference in Long Beach last week, September 7-9
th which was an excellent opportunity to learn how other cities are addressing similar issues. There was an announcement that in July there is a new JPA that launched a new investment pool endorsed by Cal Cities and for cities to invest in.
Councilmember Dawson reported on the ARPA Subcommittee, stating the E-card program has been successful. There are 20 vendors who continue to be in place, and $280,000 is out in the community which is wonderful. They are also honing in on someone for their Biz Marketing to put up the website to help support small businesses. Also, outdoor dining continues, and they will be providing an update in the future on this.
Mayor Gerringer reported the School District and City held an unveiling of the Memorial plaques recognizing and remembering Ashley Diaz. She encouraged everyone to stop by Stanley Middle School and/or the Elum Brown Plaza downtown near the Statue of Lafayette and to slow down. They held the meeting and made a unanimous decision to appoint the two, four-year seats and the one two-year set to the Council for another term in lieu of an election. She and Councilmember Candell will serve another 4 years and Councilmember Kwok will serve the remainder of the 2-year term for which he was appointed.
She also attended the League of California Cities’ Annual Conference and the speakers were great, with many networking opportunities. One session she particularly was interested in was a housing session. It focused less on RHNA but instead on what communities are doing to provide affordable housing opportunities such as local lease programs, incentives, home sharing, and this raised many questions for her to research.
She then described a series of emails that came out regarding a resolution that was going to come to Cal Cities but was sent the Friday before. None of the voting delegates saw it until Thursday when it went to the General Resolutions Committee. The General Resolutions Committee on Thursday heard the petition and they are sending the resolution to the General Assembly of Delegates and will have it go back to the Committee for further review and bring it back. On Friday, when they voted on the General Assembly the motion put forward was to support the recommendation to send it back to the Committee which she voted “yes” on, which passed.
Lastly, she encouraged people to look at the many events and opportunities to support local non-profits.
Councilmember Dawson reported that the Diaz family had asked that the Council set aside a day in September to honor Ashley Diaz and the safety he brought forward, so she asked that this be brought back for discussion.
B. City Manager’s Update
Recommendation: Receive and file.
City Council and Creeks Committee Meeting Page 29 of 29 September 12, 2022 City Manager Srivatsa announced that at the League Conference, the 19 cities and towns in Contra Costa County received the Helen Putnam Award for Excellence in Inter-Governmental Collaboration. This was for the development of the A3--Anytime, Anywhere, Anyone Community Crisis Response which seeks to transform the region’s behavioral health care and emergency responses system. The effort took the City two years to get to where they are today, and it could not have happened without the CCC Health Services personnel. For the first time, all 19 cities and towns came together with the County to change the way they deliver behavioral health services to a more compassionate and wider reaching effort to ensure everyone has access to services. The Walnut Creek Mayor accepted the award on behalf of the Contra Costa cities.
C. Mayor Gerringer
Council Art & Wine Festival Booth Schedule for September 17 & 18 Recommendation: Receive and file.
Mayor Gerringer asked everyone to come out to the Art & Wine Festival on September 17 & 18 which is out of its hiatus. She asked and Administrative Services Director Tracy Robinson agreed to resend the link and Councilmembers should email her to sign up hours/days for manning the booth.
D. Mayor Gerringer and Councilmember Candell
Resolution 2022-55 Appointing members to the Local Road Safety Plan Task Force (LSRP) Recommendation: Adopt Resolution 2022-55.
Mayor Gerringer confirmed the Resolution was clarified to indicate that the Task Force is now called the Local Road Safety Plan Task Force. She spoke of the application process, candidates who were interviewed, and the Councilmembers’ recommendation for appointment.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Gerringer/Kwok) to adopt Resolution 2022-55 appointing Jenifer Paul and Mark Dreger to the Local Road Safety Plan Task Force (LSRP). Vote: 4-0-1 (Ayes: Gerringer, Anduri, Dawson, and Kwok; Noes: None; Absent: Candell).
15. WRITTEN COMMUNICATIONS – None.
16. ADJOURNMENT – 11:53 p.m. in memory of Al Saracevic and Dick Holt.
APPROVED:
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Teresa Gerringer, Mayor
ATTEST:
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Joanne Robbins, City Clerk