City Council Meeting Page 1 of 37 October 24, 2022
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City Council Meeting Page 2 of 37 October 24, 2022
1. CALL TO ORDER
Mayor Gerringer called the Regular City Council meeting to order at 7:00 p.m. via teleconference.
2. ROLL CALL
Present: Mayor Gerringer; Vice Mayor Anduri; Councilmembers Candell, Dawson and Kwok
Absent: None
Staff Present: Tracy Robinson, Administrative Services Director; Greg Wolff, Planning and Building Director; Renata Robles, Senior Planner; Jean Eisberg, Contract Planner; Suzanne Iarla, Communications Analyst; Mala Subramanian, City Attorney; Joanne Robbins, City Clerk
3. 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).
4. PUBLIC COMMENTS – (for items not on the agenda).
DONN WALKLET, said he lives in the Deer Hill area and spoke of his wildfire early detection,rapid response, and satellite imagery, said firefighting efforts have been slow to adopt new technology and legislation has been slow to fund it. Lafayette is an extremely high-risk environment with insurance cancellations. He voiced concerns with increased density around BART and evacuations, asked for guaranteed firefighting resources, and thinks Lafayette is in a unique situation to negotiate with the State to guarantee priority access to new technology in exchange for any concession it makes for housing densities. He thinks now is the time to force the State to make Lafayette safe.
Councilmember Candell asked what the name of the technology is. Mr. Walklet agreed to email a short description of it to [email protected].
Councilmember Dawson asked if other agencies have this technology in California. Mr. Walklet said it started after the Oakland Hills fire and the technology was practical back then and much better today. He said he may also send a PowerPoint to explain this more.
5. PRESENTATIONS – None.
6. CONSENT CALENDAR
Mayor Gerringer asked if there were public comments or requests to remove an item from the Consent Calendar, and there were none.
A. Minutes – October 11, 2022
Recommendation: Approve.
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B. Ordinance 669 Establishing a New Chapter in the Lafayette Municipal Code titled “Water Efficient Landscape” to implement the State mandate requiring local jurisdictions to implement water efficient landscape design and irrigation practices set forth in California Code of Regulations Title 23, Chapter 2.7. (CEQA Determination: Exempt Pursuant to CEQA Guidelines Section 15061 [b][3] – General Rule Exemption)
Recommendation: Waive second reading and adopt Ordinance 669.
C. Ordinance 682 Amending Title 6 of the Lafayette Municipal Code to Revise the Electric Vehicle Charging Requirements for Multi-Family and Commercial Development Projects. (CEQA Determination: Exempt Pursuant to CEQA Guidelines Section 15061 [b][3] – General Rule Exemption)
Recommendation: Waive second reading and adopt Ordinance 682.
D. 2023 City Council Meeting Calendar
Recommendation: Adopt the 2023 City Council meeting calendar.
E. Program Update on the Lafayette American Rescue Plan Act (ARPA) Funding Recommendation: Allocate $50,000 of ARPA funds from the 2nd tranche of 2022 ARPA funding to the Shop Local eCard Program to support Lafayette businesses during the holiday shopping season.
F. Budget Adjustments for FY21-22 Necessary to Comply with Lafayette Financial Policies Recommendation: Adjust budget for FY21-22 as detailed in the staff report.
ACTION: It was M/S/C (Candell/Kwok) to adopt Consent Calendar Item A, B, C, D, E, and F. Vote: 5-0 (Ayes:
Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
7. OLD BUSINESS
A. Greg Wolff, Planning & Building Director; Renata Robles, Senior Planner; Diana Elrod, Housing Consultant
California Department of Housing and Community Development (HCD) Review Letter on Lafayette’s Draft Housing Element Update
Recommendation: Receive status update and direct staff.
Planning and Building Director Greg Wolff gave a brief background of the staff report and overview regarding HCD’s submitted of its review letter on the Draft Housing Element. Staff has reached out to HCD to receive clarification on several of the comments and Ms. Elrod will make a presentation.
Diana Elrod, Housing Consultant, said the 13-page is viewed as “average” based on other cities’ letters and is like other comments received. They have organized all comments and sub-comments on items which staff believes strongly the Council will have to weigh in on, which are: 1) The 4 items called out in the staff report. 2) Other items fall under Council review is possibly needed, and once staff completes additional analysis they can return to the Council for direction; and 3) Updates that are not necessarily needing review by the Council. They are additions to modifications to additional narrative that would not materially change the outcome of the Housing Element.
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Within each of these items, staff rates the level of difficulty to respond effectively or in complying with the request. Even in some areas there are some items that have a significant level of difficulty to put together. Of the 4 items listed in the staff report staff knows the Council will need to weigh in on they are primarily in 2 areas; One is the inventory and the second is in the programs.
With respect to the programs staff is seeing this comment in every comment letter coming from HCD which is a more solid commitment on each of these items such as when items will be studied, when the decision will be made to implement or not, and more definitive timelines. As a result, the more they get into this analysis some decisions will have to be made on staffing levels, resources, and items the Council may want but may have to take a back seat.
Staff has reached out to HCD to discuss and explain some items staff does not understand. Staff has been advised repeatedly that the City should not rely heavily on Southern California’s experiences which leaves them with many questions and examples that are and are not from Southern California that they would accept for various responses.
When HCD references publicly-owned sites they are specifically referencing the BART site. They have not accepted the City’s arguments about the BART site as is and have requested further information. They need to talk to HCD about what the item means in terms of expectations and then staff will return to the Council once they determine what will be required for the City to include the BART site and options in case they feel they cannot meet criteria.
Vice Mayor Anduri said when GPAC was working on the inventory and had the timeline the main thing they heard was the need to get it into HCD to take advantage of the two, 90-day review periods. They did get it in by June 30th and HCD took the entire 90 days for the first period. He asked if the City is now aiming for January 31st to turn it in because there will obviously not be time for another 90-day review period.
Ms. Elrod said this will be the subject of more discussion because there are many moving parts, including the need to certify the EIR before the Council can adopt the Housing Element. It is likely the City will get another 90-day review. Every other jurisdiction thus far that has received a letter in the Bay Area is “in the same boat” as Lafayette and some have not even submitted a draft to the public yet. There are things in the letter that had not been brought up before but many of these items are easy to fix. It is the larger questions pertaining to the BART sites and EIR and when that will happen.
Vice Mayor Anduri likened it to a moving target. They have the EIR, AB 2923 overlay district, as well as staff’s work on the Housing Element. He confirmed staff will be speaking with HCD and work out what the strategy will be in terms of when they receive something back.
Ms. Elrod said one take-away they are hearing from all cities in the Bay Area and from legal advice is that the more they are moving towards resolution of these items and keeping HCD informed the more it is to their benefit. How this ends up as to when they submit a formal second draft has not yet been plotted out.
Vice Mayor Anduri said the first item regarding direction is whether there were other publicly owned sites staff included in their inventory.
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Ms. Elrod said yes; there are 3 in total—1) the parking lot behind the United Methodist Church; 2) 949 Moraga Road; and 3) a consolidation of parcels with one or more City-owned at Golden Gate Way and First Street referred to as the Oakridge parking lot.
Vice Mayor Anduri said he expected the comments from HCD to be more easily understood in terms of what part of the inventory they were accepting and what parts they were not. He asked what is HCD saying about the BART lots.
Ms. Elrod prefaced this by saying this is conjecture because this has never been an issue for Lafayette and not other jurisdictions she is working with. She thinks they want to see some sort of real commitment to making it happen during the 8 years. She could be wrong and it is the reason staff wants to talk with HCD, but the laundry list of things in the first item suggest to her that they must have a clear path for development, however that happens. The City does not control the sites so they would not put out an RFP, so many parts in this indicate the City has close to a development in mind for this site whether it is because BART has decided to move them up or because the City can do it on their own, or something else.
But again, this is her conjecture based upon what she is reading.
Vice Mayor Anduri asked if anything else on the inventory list led staff to believe they were disinclined to accept opportunity sites.
Ms. Elrod said no. What HCD asked for was more detail on individual sites in the inventory and more validation on projections on realistic capacity, whether it is 90% or 95%, depending on whether it is Mt.
Diablo Boulevard or otherwise. Those are things staff simply must provide more narrative and more documentation for, and she did not feel there was any obvious exclusion of sites, but the letter is “opaque” so staff must guess.
Councilmember Candell thanked staff for their staff report and referred to the timeline and staffing. In order to get this done by the end of January she asked how much more staff time will be needed on this letter and the EIR work. She asked if there were planners to hire or available and asked for the strategy.
Ms. Elrod said the work needing to be done is only work that Lafayette staff can do so it may be a reprioritization of work.
Mr. Wolff added that there will be a bit of a shift but staff does not have the luxury of taking staff off current planning applications and assigning them to Housing Element tasks because they are obligated to process those in a timely fashion. Staff will be capitalizing on that where they can. More broadly, they have been looking for staff approaching one year now with some degree of success, but it is a scarce market with all planning work needing to take place because of State mandates. Setting aside the Housing Element, all 56 new housing laws coming out will need to also be addressed, as well. They do not have a strategy other than to bring on additional staff and current resources will be leaned on, including the City Attorney’s office.
Mayor Gerringer said her questions were around the timing and around where their potential conflicts are. She thanked the City Attorney for the letter regarding not having the City’s Housing Element approved by January 31, 2023. She asked if the Attorney General’s office was providing for extensions at this time, and Ms. Elrod replied “no.”
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Councilmember Dawson asked if the priority would be the EIR and what the Attorney General set forth that the City should be prioritizing.
Mr. Wolff said he thinks it needs to be all hands on both prongs—both the EIR and the Housing Element and he noted there is some overlap on personnel on these. ESA is working on the environmental analysis along with the City Attorney’s office, and City staff are working on the Housing Element. He thinks they need to go in parallel and acted on as quickly as possible. Staff will bring in additional resources if available, but they have not identified that yet.
Councilmember Dawson asked if the Council subcommittee that could assist, given they are aware of the issues.
Mr. Wolff said staff can take this into consideration and will discuss this with the City Manager and City Attorney.
Vice Mayor Anduri asked when staff expects to bring back to the Council the analysis of the Attorney General’s best practices guidelines. Mr. Wolff said he does not know if staff has a date yet, although for both, they are striving to bring back more information at the next meeting.
Councilmember Kwok said many of his questions have been answered, but in terms of resource planning, scheduling, and timing he knows the first plan is to try to get BART numbers approved and get RHNA numbers fulfilled through BART, but this is a big lift. If they had to go to a Plan B, he asked if staff will just work on Plan A and push it until HCD tells the City it is not accepted and then start Plan B. He asked where they would start and questioned if it would be GPAC and he asked if they would exhaust Plan A before starting Plan B or does Plan B start on a parallel track.
Mr. Wolff said GPAC would have made its recommendation to the PC and Council. He understood the timelines associated with the January 31st deadline and at that time GPAC reconciled not to be involved in the second or third round of review and comments. They identified sites in the City of where housing could go in the next 8 years which is the foundation and fundamental to any solution that could come to fruition on how those are zoned. So, inclusion or exclusion of one or more sites has been discussed and he thinks they will be discussed again with the PC and Council. But, the identification of the universe of sites has been done. It now becomes a function of getting them to the RHNA numbers plus an appropriate buffer. So, they would not be starting from ground zero on an alternate plan or Plan B if HCD rejects the BART sites. They could calculate out what densities would need to be allocated to those sites and areas of town in order to achieve the RHNA, and they have already started work on this.
Vice Mayor Anduri asked if there has been any thought given to a Plan C. If they compare Danville’s RHNA to Lafayette’s RHNA based on population the City’s RHNA should be 1,300 based on its population.
Danville has 46,000 in population and their RHNA is 1,600 and Lafayette has 26,000 people and its RHNA is 2,100. The 800 delta is purely BART, so many Councilmembers have said it is extremely unfair to be given this amount for BART and not be allowed to use BART. So, he asked if there is a legislative alternative they should be pursuing, given their situation is different which is a BART station in a high fire severity zone. If they do not count the BART lots and must move downtown to 50 du/acre which is realistically 75 du/acre, it is not something he could contemplate. He also cannot imagine that any objective observer sitting down and looking at this would say, this is what anyone intended to happen—that they be given extra RHNA allocation for BART and not be able to count BART.
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Ms. Elrod said she understands this point of view and thinks there is always potentially a legal effort that could be made. She would, however, not bet on a positive result because the court so far has not been interested in taking on some of the legal challenges to RHNA allocations, in general. Also, she thinks it ends up delaying the City from creating a Housing Element that is certifiable. So, the longer they are delayed in getting a certified Housing Element the longer they are at risk of the builder’s remedy, legal action, etc. Her opinion is that it does not seem like it is worth the effort because of what they could be saddled with while they wait and go through the courts to try to lodge a reasonable outcome, which would take years. By that time, they could have many developments that the City really does not want to have.
Mr. Wolff referred to a legislative approach and said he does not know such an approach would be timely to help in their 6th cycle Housing Element review. There are conflicting priorities and goals the State is promoting and not to have additional development or limit it severely in very high fire hazard severity zones, but also to build higher density within one-half mile of BART, staff has an overlap and conflict between those two. It has not been recognized to date other than to be acknowledged and be given the opportunity to figure out how to deal with that. This was the nature of staff’s advocacy during the RHNA methodology meetings. It was one of the dozen criteria that could be considered in allocating units, and staff advocated that it was because it is a realistic concern and risk. In the end, it was not included as a factor.
Councilmember Dawson said while naive, she asked if there is any possibility of appealing to the Attorney General for intervention. She suggested a letter to point it out.
Ms. Elrod said this is going to be very difficult because the Attorney General is on a significant effort to stop cities from developing or planning to develop housing in high fire hazard severity zone. At the same time, he has a housing strike team for those jurisdictions that do not have compliant Housing Elements, so they are working in concert with the accountability unit in HCD to go after their perception of “bad actors.” She does not think this would get any traction whatsoever based on how the Attorney General is working with HCD at this point.
Mayor Gerringer opened the public comment period.
KEVIN BURKE, East Bay for Everyone, said they wrote a long comment letter before the first draft of the Housing Element and he would encourage the Council to read it and respond to feedback in it. The first draft comment letters that HCD sends are always vague. They want to give cities a chance to do the right thing, so it will take until the second or third draft to get feedback on specific sites. They found several issues with sites submitted by Lafayette and he did not think densities slated for the downtown will be accepted by HCD. The City can take its chances on keeping the zoning the same downtown and submitting the same sites again and see what HCD says.
But, he has read about 20 Housing Elements including Southern California and he guessed HCD will tell the City that sites are deficient and that they need to rezone. Therefore, he would encourage the City rezone now because if they wait for another draft they will skip over January and will end up developers setting the City’s zoning standards.
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He thinks the City will really need to show BART it is committed to development on that site, including putting up the money to pay for the solar panel lease to get removed, probably funding a full-time staff person to help BART get through their development pipeline, and showing BART the City is serious about zoning at 75 du/acre and CEQA litigation. There are about 50 pages of comments on the BART item, including from people who have sued the City over CEQA issues in the past and, therefore, 3 years should be added onto the City’s timeline because that is about how much time it will take to get through a CEQA suit and get housing built.
MAX HENINGER, Boardmember for Inclusive Lafayette, referred to Plan B and asking whether it would be a good idea to get started right away on that. Inclusive Lafayette endorses this idea and the timing is very tight. They strongly opposed and are concerned that it might be tempting to promote the Plan C idea where they try to go back in time and argue that RHNA allocations are unfair and therefore, the City should not comply with the law, which is a recipe for a builder’s remedy as de facto zoning in Lafayette for months and even years to come. Their message is now is the time for action and accountability to address the region’s housing crisis and a time for leadership. He did not think a fight would work well and while it will be difficult, he asked that Councilmembers be leaders and withstand to this difficult job.
He thinks this is doable, referenced a San Francisco Chronicle article where elected officials in communities like Lafayette are starting to do the right thing, and asked staff to devote a plan that is likely to be approved.
Vice Mayor Anduri said Mr. Heninger referred to getting the zoning done by January 31st. He said if the City turns in a compliant Housing Element, he asked if it has 3 years to do the rezoning, and City Attorney Subramanian confirmed.
COLIN ELLIOTT said he did not necessarily read the first comment about public sites quite as bleakly as staff did. Clearly, they talk about things like the Surplus Land Act which pertains to the City’s parcels and other things, but he would have expected them to talk about that. They are talking about things the City has not done on the BART station lots, but that the City will do, so those questions can be answered. To Plan C, he agrees with Vice Mayor Anduri that there is a legitimate Plan C. If the City is put into a “Catch 22” situation like that, it must be resolved by someone. It seems a court will say the City can get a stay on that while this is sorted out because it just does not make any sense. Also, upzoning everywhere is not really a panacea either because in looking at questions HCD asks about individual sites and how they are justified and why they are on the list, they still apply regardless of their density. There are existing uses and things that must be displaced, and the City has gone over these sites’ ad nauseum.
He wondered if Ms. Elrod looked yet at Alameda which was the only city that got approved out of the gate. That city had an easier time because they have got the former Alameda Naval Air Station and the Army Supply Depot areas where they have a housing plan. So, they were able to meet their numbers easily. All these other questions they asked Lafayette which was how Alameda handled those with their AFFH would be interesting to know. He also pointed out that Alameda allocated 800 units to the South Shore Shopping Center in areas where there are current tenants. There is a Home Depot, a large Big 5 Sporting Goods, and they talked with the owners the same way staff talked to Lafayette Plaza, and HCD accepted that. So, in going back and looking at sitesthe City should look at their shopping centers because HCD accepted them in Alameda.
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ELIOT HUDSON said in the run-up to submitting the Housing Element they talked at length about the BART lot and arguments that could be made for counting the BART lots without asking BART to move forward on their Work Plan. That argument has never been made to HCD and now is the time to make that case to them. There would likely be two comment periods and HCD has returned with its list of questions. Now is the time to explain the equity, fairness, and how it corresponds with why Lafayette was assigned numbers based on the BART lot, regardless of where it stood. If HCD does not accept this, there will be another round of comments and then it can be dealt with if it is rejected. Unfortunately, he does not think the consultant or staff’s hearts are in that argument and they are the ones that should be tasked with making it. It should be made by others in assistance with them, and he would like to see that done.
To the extent he can participate, he is more than willing.
JEREMY LEVINE said this is such an important topic and he echoed Mr. Heninger’s comments, thinks Plan B is important, and would like to address this “BART victim complex” because he thinks it is based on a misconception about why Lafayette has such a high number. The City has a high RHNA number because they have a BART station and not because of the BART parking lots. Walnut Creek built housing on its BART lots already, cannot use this cycle, and received higher RHNA number because of its BART parking lots. Other cities that do not have a BART parking lot to build on but have a station also got a higher number. This is the reason--It is the station. The parking lots are auxiliary. Expecting the City is owed the ability to claim housing on the parking lots even though they spent the last decade making that extremely hard to do for the next 8 years rubs him the wrong way. The City is deferring to ‘fairness’ when it is very fair that the City would have more housing expectation because the State has given them a multi-million investment with this transit station. They should not be trying to misrepresent the methodology ABAG used in order to convince HCD to let them fly. The City should be demonstrating they have a real plan for housing to be there, that it has written evidence from BART that housing can be there or come up with alternatives. Ideally, they would be doing both at the same time.
He knows there are tough decisions and the Council will hear a lot of legal input from people who got them to this place in the first place. Staff has been giving good advice and he hopes the Council will heed what they and Ms. Elrod have to say.
LIBBY HENRY said she has voiced her opinions many times about this but several issues have been raised and she cited a lot of misinformation here. ABAG is not the entity that miscalculated the RHNA numbers.
It was HCD, so it is right for people to challenge HCD numbers. Their BART station has a parking lot. If the City compares Walnut Creek with Lafayette with the BART station she asked the Council to look at what Walnut Creek did. They used part of their parking lot and built a parking garage to replace the parking taken away. There are no plans in Lafayette to do so. They will just eliminate parking for everyone from several out of town residents who take the Lafayette BART and park.
With AB 2927 in January, developers will not have to provide parking for residents. HCD did not even look at what the City had in its last cycle compared to now, which is ridiculous. She agrees with Mr. Hudson and Mr. Elliott, and it does not seem like changes to make the BART site possible were that great. She also said the comments from East Bay for Everyone and Inclusive Lafayette that they represent most people in Lafayette is a misnomer to say the least.
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ROBERT LAVOIE said Kevin Burke from East Bay for Everyone is speaking more for Oakland and not Lafayette. They are already at 52 du/acre downtown which is way more than what they should have for Lafayette. The fact Mr. Burke is promising to send opposition letters to HCD to complain about people concerned about upzoning downtown even further is offensive, and he should leave residents of Lafayette to live in peace. These arguments are based on false premises. There is no true affordable housing funding.
The paltry number of units a developer will toss in based on their bonus densities and allowances abuses City residents with increased height, density, lack of parking, and lack of setbacks, and does not benefit anyone in the City.
The State and regional population is declining. Prices in Texas versus California is significantly different and there is no housing crisis at the $1 to $2 million level which is what is being built.
Mayor Gerringer asked for other Councilmember input to give to staff.
Councilmember Candell said it seems reasonable to try Plan A, Plan B to be ready in case they must pivot, and there is a legal option for a Plan C where cities are joining in a lawsuit against HCD that would reduce the overall numbers by one third. This would be consistent with the previous cycle and every other cycle done before because the methods chosen this time are not justified. So, there is a legal remedy if they choose to do that and it is not that expensive. She suggested having a Closed Session on that if Councilmembers wanted to hear about it to see if this is something they would like to consider because other cities are starting to join.
She noted it was Senator Glazer who put forth that effort to get the audit and he explicitly said the auditor’s job is done and it is the City’s job to make the auditor’s report have teeth. He is expecting the cities to use that document to make HCD and the DOF do the things they are supposed to do, show cities how they did their work, and how they justified their numbers because there is none. Therefore, she hoped the Council could consider that and at least look at it and determine whether it is something for them. She thanked staff for the work done and asked to let the Council know what they can do to help.
Vice Mayor Anduri said staff wanted guidance on these four items and he asked if the Council should go over each one in order.
Mr. Wolff said staff identified those as initial items they will seek Council guidance for. They have not analyzed them to the depth they would like to and laid out the options and recommendations for the Council. Therefore, it would be premature to come to a singular conclusion and direction from the Council.
But, if there is any guidance around what the Council would like staff to look at or bring back in terms of metrics, options, etc., he can take that now. However, staff will need to do more work to get it to concrete direction.
With regards to programs and concrete timelines and concrete actions, staff wants to prepare a draft and bring that to the Council for discussion. Regarding what they heard about opportunity sites, it is: 1) To get clarity to the degree they can from HCD and what they are asking for looking to receive with respect to public sites; 2) To continue to pursue the Plan A which GPAC, PC and Council endorsed and make every effort to demonstrate that to HCD; and 3) To be working on Plan B.
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Vice Mayor Anduri said he agrees with working on Plan B but they have done the work on the sites so there is one or two policy decisions that would need to be made if they were to pivot to Plan B. One of those policy decisions involves the DeSilva property and whether they want to keep that for ballfields and open space or whether they want that as an opportunity site.
The second decision is how much they would want to upzone the downtown. Do they want to upzone the northern rim of the downtown or, do they want to upzone of the lower level of the entire downtown? These are things that can be done relatively quickly so he is not worried about pivoting to that . He noted that the zoning does not need to be completed until January 31st.
He had some questions and could go more into them when staff returns, but under C1, his question is what HCD is really looking for in terms of timing. For example, 6.1b shows up in these three comments staff is looking for guidance for. Section 6.1b is “Funding sources to support affordable housing development.” We say we will create a plan by 2025 or 3 years from now so he asked how much more definite they would need to be. He just does not understand what HCD is looking for.
On the long list of programs that are called out under C1, one of the speakers referred to 8 years of making it not possible to build on BART, but all Councilmembers have been on the Council for 4 years or less. They are facing a situation of trying to get something done and he thinks most of the Council wants to have housing on BART. It is a matter of how they do it, and the real goal is to get this housing built.
He looks at all they are asking for the programs and asked if the Council should decide now where maybe they should not be doing some of these programs because they would be spending more time on developing these programs than building housing or making it more possible for housing to be built. Over the last year, the City has seen the reality on constraints on their planning staff. To see all these programs and then be introduced a month ago to an incredible new layer of MTC programs, at some point they must ask what is going to lead to more housing and what is not, and maybe eliminate some of these programs. He does not know how HCD would respond to that but the Council needs to determine where the time should be spent—working with BART to move up the schedule or spending time doing one or more studies. The whole list includes 20 studies so this is the sort of thing he asked staff to look at and keep it in mind when they return.
Councilmember Kwok referred to asking for feedback on the reports and said he thinks staff did a great job in its thinking to put the spreadsheet together, organize it into low, medium, and high priority. This is a good methodology as to how to attack this very broad and somewhat vague in terms of how they will really respond satisfactorily. His worry is whether the City has enough staffing to do this for such a massive response. Therefore, he hopes this is an “all-hands-on-deck” effort with volunteers, Commissions, and everyone. He would broaden their approach to think how others here can help with this assignment.
The tangible thing he would offer is that with Plan B, given the small number of meetings left to get to January, strategically his question is whether they going to try to get a compliant submission in by then, and if so, they should start on Plan B right now. If Plan A falls out in November/December, just the number of meetings between now and then becomes very limited. Also, this is a public process and the public would be very interested to know what Plan B is, so the more they can surface that the more they can bring the community along. However, unless Plan A goes until January 31st and then Plan B is next spring the City is exposing itself to some risk. It is just a different approach and he has not thought about the merits of that but those are their options. He said the Council is here to help and he can research the solar panel questions.
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Councilmember Candell referred to the end of the table, Program G on page 23 of 29 of the agenda, and said they both are level of effort-high and Council as “yes.” She wondered why those were not part of the first 4.
Mr. Wolff said he thinks staff viewed the content in those 2 was already covered in the 4 identified in the staff report.
Mayor Gerringer said she agrees with everyone on the importance of using as many of the resources. She thinks this is a lot of extra work for staff in terms of managing resources and she does not think the Council is giving direction to do that. They have a limited number of meetings, but in the staff report staff mentioned doubling up with the PC to be efficient in the use of meetings and meeting time which she thinks is important. They have all information about all the different sites thanks to GPAC, PC, Planning, Council, staff, and the community. Where staff can work on is bringing back Plan B at the same time. She thinks DeSilva is not an “either/or.” She thought it was housing and potentially a ballfield in looking realistically as to where some of those sites might be. She is happy to look at what the Plan C might be legally in terms of the lawsuit and legislation but is struggling in looking at a lawsuit while they are trying to cross this finish line. She suggested moving forward with the other things they must get done. She thanked staff and Ms. Elrod for having those conversations with HCD and their reviewer and prioritizing that.
Councilmember Dawson reiterated she would like more information and hear about what Councilmember Candell was discussing with the legal route. She also wanted to follow-up on Mr. Hudson’s comment about responding to HCD’s comments. When they submitted the letter, she asked if HCD expects staff to return with a new draft or would HCD consider a reply with feedback as well as the conflict they have with the numbers.
Ms. Elrod said the reviewer will clarify some of the comments in the letter and the issue about the conflict.
It would require a much higher-level discussion with the head of HCD to review the conflict. HCD’s job is to review Housing Elements and that is it.
Vice Mayor Anduri said he thinks it was Mr. Burke who was going to send resident objections to BART and HCD, and he is free to do this where he thinks is helpful for his cause, but he would say that building housing is everyone’s cause. He wished they could all work together on this because they do want to build housing.
In terms of a legislative approach, he thinks it would be useful to sit down with their Assemblymember and State Senator and brief them on the situation. He knows they have lots of things to do but that should be on the list.
Mayor Gerringer confirmed staff had direction.
8. PUBLIC HEARING
A. Jean Eisberg, Contract Planner
City Council Meeting Page 13 of 37 October 24, 2022
DR07-20CC 950 Hough Investors, LLC (Owner) RB Zoning: Request for a Change of Conditions to modify the massing, height, parking, and open space of the approved 20-unit residential building. The changes include an increase in floor area from 46,713 sq. ft. to 50,566 sq. ft., increase in building height by 1 foot, increase in parking supply from 25 to 45 through parking stackers, and increase in open space from 2,322 sq. ft.to 2,686 sq. ft. The subject property is located at 950 Hough Ave., APN 243-190-003.
Recommendation: Adopt Resolution 2022-58, approving the design changes and Conditions of Approval modifications.
Mr. Wolff provided a brief overview of the public hearing protocols.
Contract Planner Jean Eisberg gave the staff report and PowerPoint overview of the request for a Change of Conditions to modify the massing, height, parking, and open space of the approved 20-unit residential building. She noted the project was reviewed 2 years ago by the PC, DRC and Creeks Committee and recommended the City Council approve the project with conditions, and the Council approved the project in early 2021. The applicant requested a Change of Conditions in November 2021 which was approved, and the second Change of Conditions is being requested at this time. Staff recommended the DRC review the project which was done in September and the DRC recommended the Council approve the project.
Changes include an increase in floor area from 46,713 square feet to 50,566 square feet, increase in the building height by 1 foot, increase in parking from 25 to 45 through parking stackers, and increase in open space from 2,322 square feet to 2,686 square feet. The project is located at 950 Hough Avenue.
Ms. Eisberg said some of the items not being changed is the demolition of the existing commercial use.
The project is proposed under State density bonus law, and there are 20 for-sale units including 3 moderate income units. Also not changed is the approved creek trail easement at the rear of the property that has been executed and recorded. Should public access become available from the nearest public right-of-way, there could be a creek trail created at the back of the lot.
Regarding the DRC’s feedback at their meeting last month, the massing and floor plan relates to the project sponsors working on building permit drawings and finding ways to construct the project more efficiently. There is an increase in floor area through 1) greater efficiency in terms of stacking units; and 2) changes to the top floor to increase the size of the amenity space, the community room, as well as some additional outdoor open space on the roof. Because of this increase in amenities, there is now an elevator serving the top floor and not just the three floors.
The second key change is a change in building height which increases the overall building height from 47 feet to 48 feet which is consistent with the original approval, an increase in the front elevation at the curve which she pointed to, and the increase in the elevator penthouse which technically is not included in the definition of building height. There is still a waiver request under State density bonus law since the zoning district otherwise only allows 35 feet and the application is for up to 48 feet.
Regarding the DRC’s feedback, generally there were discussions about the massing. Some members preferred the original massing, some members preferred this one. No concerns about the building height or the addition of the amenity space was received.
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Two other key changes are parking. Originally, there was just the garage with parking stalls and now the proposal is to have parking lifts. This allows an increase in the number of parking spaces from 25 to 45 and each unit could have 2 parking spaces in each stacker. Second, is the relocation of long-term bike parking to storage or bike lockers on the south side of the property. One recommendation from the DRC was to increase the number of EV charging spaces. Right now, the project sponsor is proposing 18 potential EV charging stations, and the DRC requested more. This is something the project sponsor will address in their comments.
Next is open space. Although they still have the creek trail easement and still have the rear yard open space, the project sponsor has proposed removing the rear deck in the rear yard. The HOA at a future date could still install it. At the time the Council approved the project about 1 ½ years ago there was an approval of a rear deck to allow for that open space. Otherwise, the expansion of the outdoor roof deck has the advantage of increasing the open space slightly. There is still a waiver request under State density bonus law because the project does not meet the open space requirement of 4,000 square feet.
One other comment from the DRC was whether there could be a bench in the rear yard and the applicant indicated that was not likely feasible because of ADA access requirements out the back of the building.
The last key change are colors and materials. This was supported by the DRC. They liked the changes, and as compared to the previous project, presented a much more muted palette. There is some change in materials with the addition of metal and concrete, and a change from stucco to Corten steel along the main façade and projecting bays, the change to the window mullion in the façade to have more glass expanse at the corner, and at the ground level is cast in place concrete instead of a wood-like tile and stucco.
Ms. Eisberg then provided a summary of State density bonus law waivers and concessions, stating there are no major changes here. There is a slight increase in building height, no change in the landscaped yard waiver reduction, a minor increase in open space, minor increase in bulk, and the parking standards although the number of acquired spaces is now met. Some of the spaces are narrower than what would be required based on the existence of columns in the garage.
Lastly, there is no material change in the inclusionary housing requirement or the concession request for the unit type and size mix. The project has a slightly reduced bedroom count compared to the proportion of bedroom count in the project overall.
She then presented changes to proposed conditions: 1) To extend the project expiration by an additional year; 2) In terms of a design detail in COA#12, previously there was a wall along the north side of the building. After working with the Fire Department, the project sponsor determined they could remove that wall, so there is no reason to stucco finish a north wall. Staff recommends striking this condition; 3) The requirement to increase the number of EV charging spaces with conduit to serve the parking stackers; 4) To eliminate the requirement to work with staff on the top floor design as that has now been completed through this request; and 5) to defer the recording of the affordable housing agreement and recording of the condominium map. The only change staff recommended was that the affordable housing agreement be timed at the release of hold on framing and not hold on final to allow staff time to work on that agreement.
Staff recommends the Council conduct the public hearing, review the project, adopt the resolution approving design changes and the conditions of approval.
City Council Meeting Page 15 of 37 October 24, 2022
Mayor Gerringer called on the applicant to present.
Brian Griggs, applicant, thanked the Council for the time this evening and thanked Ms. Eisberg for her work. He partnered with Jeff Stone and Diamond Development and Construction who is a fantastic builder in the Lamorinda community and a huge boost to what they want to deliver. Mr. Stone brought many concepts before the Council tonight to make this a better project. They had a collaborative and positive session with the DRC in late September and based on their feedback it was a collaborative process very well received. He will not spend time explaining the changes, given Ms. Eisberg’s presentation. The Council has seen the project and changes.
He introduced architects from Form4 Architecture, Cullen Hollyn Taub and Paul Ferro, as well as Jeff Stone, and they think the project will be fantastic. He and Mr. Stone have been in Lafayette for 40 years and this project is going to be something proud to deliver and they are setting a high bar for what the City will see in the future, which he described.
A question came up about the EV charging stations and he knows the Council discussed the new policy that has been formally adopted. He clarified they are providing all 22 parking lifts, plus the ADA spot as EV capability. They are proposing doing 2 stalls initially; the ADA and one of the lifts that will have the ability to charge immediately. All other stalls will have conduit to it, but they will not pull the cable because they do not know which residents will have electric vehicles. Their electrical panel sizes and capacities of the project have been sized to accommodate electric charging for each of the lifts, so they anticipate their building will not have to go through upgrades in the future.
Lastly, they hope to start construction in April pending a positive reception tonight. They have advanced working drawings, received positive feedback from County Fire, spoke with various other agencies such as Central Sanitary, EBMUD, PG&E, and they want to start the project quickly. Their 210 Lafayette Circle has turned out very well, demand high, and it has validated that this is something the City needs where people can walk to BART, retail, and stores. Even though they decided to add additional parking stalls, they hope their residents do not drive and take advantage of the location, and he said their team is available for any questions.
Councilmember Kwok said he has reviewed the package, has no objections, supports changes, and he thanked Mr. Griggs for explaining their approach. He was curious as to why they decided from the last time to this time to put the parking lifts in and double the parking spaces.
Mr. Griggs said it was more of a safety net not trying to force people to only have one car. He works 100 yards from the location and they feel that this part of Lafayette Circle could and is impacted by on-street parking. He thinks providing the option of a parking lifts makes sense, and he thinks there will be increased use. It is substantially less expensive than buying additional land for parking. The technology has also advanced over the last 5-7 years and they are a proven commodity.
Councilmember Kwok said State law has or will change so that buildings within one-half mile of BART will not have a parking minimum. This project is .4 miles from BART and if they let market forces decide how much parking should go there, they are not only providing 1 but 2, so it is interesting this is where they think the market is right now even though laws are relaxing.
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Mr. Griggs said in their initial proposal and over iterations they were going to have the option of adding them over time, but they felt economies of scale of doing them upfront is important. Half of their residents will have one car and will not use the lift. But, if they happen to have a parent or in-law, they could use the capability of parking on-site. They are not big advocates of driving so it is that fine edge of encouraging people to drive and having two cars versus walking.
Jeff Stone, Diamond Development and Construction, added that he thinks the Council will see a difference from rental to condominium. For a condominium one will likely want more flexibility. For rental, they will see them pulling back and not trying to provide quite as many spaces. So, as the Council sees further projects being developed in Lafayette and other BART station cities, the rental will have a lower ratio as compared to the for-sale units. Again, this is a commercial flexibility issue. It does cost quite a bit for the overall project. Does it force people to utilize it? No, but it gives the flexibility so they are not impacting the rest of the on-street parking going forward.
Vice Mayor Anduri referred to bicycles which states “relocate long-term bike parking from racks in the garage to storage lockers in the garage.” He asked if this means they will have an enclosure around them in the garage.
Mr. Griggs replied this was driven literally by E-bikes that they felt the value and cost of a nice E-bike warranted security. Within each residence storage area, they are going to provide an outlet to re-charge E-bikes as opposed to pulling them up into the building. They do not want them on the corridors or decks outside of the balconies. They have a 12 ½ foot ceiling downstairs so they will put hooks in to accommodate them. The more user-friendly they are the more people will use bikes.
Vice Mayor Anduri asked and confirmed this amenity will be an EV-ready charging station. Mr. Griggs added that the consumption of an E-bike versus the consumption of an electric vehicle is substantially different. He owns 2 electric vehicles, and he can charge off-hours, but it is impacted whereas an E-bike is insignificant.
Vice Mayor Anduri referred to removal of the deck and asked to speak to the rationale for that.
Mr. Stone replied that it was an accessibility issue and they brought in the amenity space up to the top of the building, so they thought it was a better and less impacted standpoint from other properties across the creek. They still think the creek is a beautiful spot, but there is a spring in easement that should hopefully spring. When building larger infrastructure around these things it is harder to untangle them later on with HOAs, etc. So, they wanted to notate and be respectful to that and build their community room and space where they thought it belonged and would have less impact on residents and those residents outside the rest of the community.
Vice Mayor Anduri referred to eliminating the requirement to work with staff further on refining the top floor design. He asked if this is because they feel this is final now. He wondered why this could just be left in now in case something else comes up.
Mr. Griggs said they feel it is final and that they have been before the DRC several times, have collaborated with the Planning Department to obtain feedback, and they want to start building. They hope that with approval tonight, they will be submitting to the County in the next couple of weeks to go through their 90-day process. The market needs it and they want to move forward with it.
City Council Meeting Page 17 of 37 October 24, 2022
Vice Mayor Anduri said he may have read it wrong, but one of the slides shown of the revised plans, he thinks it still shows a raised planter but maybe it was just minimally raised. He asked why raised planters were removed in the front.
Mr. Stone said those were detention basins before when it was first designed. He does not like this at the front of his buildings because they are limited in what can be planted. They do not get as much height, they must irrigate them heavily, and frankly, for how they are going to quiet down the siting and massing with some of the landscape they can put in, it would be to the advantage to anyone on the street and/or on the sidewalk. So, they took the C3 basins and moved them to different areas which gave them flexibility for both future public art in the area and some taller trees to soften the pedestrian’s experience when walking down the sidewalk.
Vice Mayor Anduri said it was to the south, but not right in front of the building. He thought those were raised planters.
Mr. Stone said they were retention basins as well. They began calculating square footages and getting into the operations and maintenance schedule and were able to move those to the furthest sides. When he entered the project, they were detention basins.
Vice Mayor Anduri said the last plan they saw had trees in those raised planters. Mr. Stone said one was stepped back, and they moved the detention basins on the full side of the property.
Vice Mayor Anduri asked if the tree numbers have been increased in the front because this is what they saw at the last meeting. Mr. Stone said they have increased the tree on the right side when coming to the entry, and frankly, they are working with a public artist right now looking at the left side for public art and potentially some other plantings. They like the idea of the left side having a good public art element to it so they want the flexibility there. Again, no matter what, they would not want the retention basins there. They want to landscape this as well and they are aligned to plant it as best as possible too.
Vice Mayor Anduri asked if there was a landscape plan in the packet. Ms. Eisberg said it is Sheet L-0 at the end of the plan set.
Councilmember Dawson referred to guest parking and asked if this will be assigned.
Mr. Griggs said each lift will be assigned to a resident. If they have one car and they have a guest they can coordinate with them to utilize the lift. Aside from that, guest parking will be on the street. There will not be any on-site guest parking.
Councilmember Dawson said therefore, what was once 5 guest parking stalls is now just part of an assigned set. Mr. Griggs said this was the offset of trying to provide more on-site parking; that they lost on-site guest parking. If different residents had a “frequent” guest and they only had one stall, that guest stall could be utilized 3-4 nights a week by one person. So, they wanted to be sure it was more of a controlled environment within the gate. This is the reason they moved the gate towards the street.
Councilmember Dawson asked if any of the three moderate income units have a private patio. Mr. Griggs said he does not think those have changed in the last design. There are a couple of narrow patios but they did not get removed and he thinks they were the same.
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Cullen Hollyn Taub, Architect, stated they have a balcony on one of them and the other one is a Juliet balcony so they could open the slider and have space to go out.
Councilmember Dawson said therefore, there is a difference between what is provided for moderate income and market rate. Mr. Griggs clarified it is not common open space but exclusive open space.
Mayor Gerringer opened the public comment period.
KEVIN BURKE said his family has one car. He also has a big E-bike with one of the buckets on the front which he uses to take his son to daycare. His wife will also get in the bucket and they will go on trips. This is getting more popular and it is an easy way to get somewhere and not have to worry about parking.
National E-bike statistics are exploding and he thinks this is a trend the City of Lafayette should start planning for now. He echoed comments from Councilmember Kwok and does not understand why parking is increasing to 2 ½ spaces per home. He is sure there are plenty of complaints about traffic, and if you allow every resident to bring 2 ½ cars it will just make traffic a lot worse. He is also concerned about comments from staff that indicate the required spaces are now met. If this is something the developer is doing voluntarily, it is odd they agreed to add the exact number of spaces required under the parking code. He is skeptical that the developer is doing this because they need to. If the City does not want the parking, they should figure this out tonight and offer a concession to do that or look at new multi-family and whether they are using all parking the City has been requiring, and work that out with the developer because he cannot take it back once built.
His comments on the Housing Element also discussed high parking minimums. They make housing infeasible, particularly on sloped lots when you must fit it under the height limit on irregularly shaped lots.
That makes all sites in the inventory more challenging. Parking minimums mean they cannot have ground floor commercial like this building, which means the ground level spaces are less appealing and the City gets less sales tax and property tax revenue. He would encourage the Council to convert their parking minimums into parking maximums and prohibit developers from adding more than a specific amount of parking. This would help attract families who are not interested in adding 2 ½ cars and more interested in walking, bicycling, and taking the bus places. He also asked to look at further changes to the downtown beyond this specific project.
ROBERT LAVOIE said he could not help commenting on Mr. Burke’s comments and Councilmember’s comments and pushing the developer to increase parking spaces. The area has a lot of retail and restaurants right down the street and this street gets overrun with cars when people are trying to go out to eat. To force a developer to provide insufficient parking so people are parking all over the streets takes away from the neighborhood. He thinks if the developer is willing to put in the parking, the City should congratulate him and not give him a hard time. If Mr. Burke wants to have one bike and carry his wife around in the bucket, that is great but personally, his wife and 3 kids would not fit in the bucket and they need 2 cars to make their family work. He thinks this takes away freedom from people’s rights as homeowners and he asked to let a developer or the City choose these things.
Rebuttal – Applicant
City Council Meeting Page 19 of 37 October 24, 2022
Mr. Griggs said he appreciates Mr. Burke’s comments and certainly do not want to mislead him or the Council to say they encourage single vehicle occupant driving. He is a bid advocate of alternate means of transportation. Part of the reason they selected this site is about the proximity and ability to not have to drive, and to the extent someone lives 1-2 miles away he thinks they are forced in many cases to have 2 vehicles, especially for two wage-earners and with family.
They decided that rather than force people to live with one or two vehicles and populate the street around Huff and Lafayette Circle that they provide this alternative. These are modern, innovative transit-oriented residences and they think the occupants who will live here will be sensitive and appreciate all those values.
To the extent they do not have to buy a second car, they will not buy it. So, they stand behind their decision. He is not a big advocate of maximum parking. He thinks at a point in time when congestion becomes so great that the City might have to put limits on parking, that creates an entirely different issue with gridlock with people driving one-half hour on end to find a parking space. He respects the comments, appreciate the support from the second speaker and hoped the Council approves their project, as proposed.
Vice Mayor Anduri referred to bicycles. They are providing space for 18 bicycles or he asked if there was room for more. Again, there is room for less than one bicycle per unit and their hope is that people who run errands from this location will walk or use bicycles.
Mr. Griggs said there are 20 storage units and at least 2 are near the back stairwell. There is a cluster next to the lobby and 4 that are in the northeast corner, so every resident will have a storage unit on the ground floor. The storage units vary by size and if they put a bike on 2 wheels as opposed to lifting it onto a hook, it might be one or two bikes beside each other. It also depends whether a resident will have a lot of storage items in there as well. He confirmed these are resident storage units that would be available for bikes or other personal items.
Vice Mayor Anduri asked if in the original design was there a separate bike area. Mr. Griggs said yes, there was a common bike area. One of the aspects he and Mr. Stone talked about extensively was whether someone will park a $2,000 or $3,000 bike in an area that would be shared with other residents versus a secure area.
Vice Mayor Anduri said therefore, they expanded the area and he asked if they expanded equivalent to what was previously the bike storage space. Mr. Griggs said he was not sure whether the sum of the prior storage plus the bike area is equal to the current storage area. He suspects it is close, but again, this is market drive. They want to be sure that a potential buyer of these units can come in and utilize what is there. So, they do not feel they have missed the mark on this.
Paul Ferro, Architect, said where they used to have the unsecured bike parking, they enveloped that whole area so it could be all secured, and they are calling them storage. Whether a tenant wants to put one bike up to three bikes is up to their discretion versus items they would like to store there. On the northwest part of the site, they also have short-term bike parking where guests can come and park their bikes.
Vice Mayor Anduri asked if there would be enough room for a family of 4 to store their bikes. Mr. Ferro said he would think they could, but that is up to them. Mr. Stone said they can also bring their bikes into their units through the elevator and have additional space inside or on their balcony. So, they are not restricting through an HOA or otherwise that they cannot bring their bikes into their own units. If they have multiple bikes they want to charge for that evening, they could do that as well.
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Mr. Griggs said they have not talked about the CC&R’s and he was not sure if they want bikes hanging out on the balconies, but they will resolve this.
Vice Mayor Anduri said he pulled his file from the last time they were here and it clearly shows in the front raised Corten planter wall and bio-retention along the side, bio-retention in the back of the building. He wants to be sure he understands. He said if they were counting those raised planters in the front as bioretention, he asked where the bio-retention went. Secondly, to him it was a nice design element having the raised planter. The design shows 3 Western Redbud planted there. This appears to be the same in the current plan.
Mr. Taub said this is correct, but they will be larger because it is not a bio-retention planter anymore and they will be in the ground. In flipping through the previous renderingsfrom a year ago and the ones today, the tree size has grown and it softens the façade against the street.
Vice Mayor Anduri asked where the bio-retention capability goes, and Mr. Ferro stated they put it on the south side yards and it goes all the way to the back of the building.
Councilmember Dawson said the City has its new EV-ready standards adopted today. That said they are EV capable and asked and confirmed there were 2 EV-ready units; one ADA and one of the lifts. They are using that partially to show potential buyers what they can have. They think buyers may not all have electric cars. In fact, they suspect they initially will not, but over the next 5-10 years, that will flip and most will have EV cars at that point, and they will need to pull the wire to the conduit and install the charger.
The biggest issue is that they have upsized the electrical capacity of the building in anticipation of having all vehicle spaces able to charge electric cars, which is a substantial capital investment upfront.
Councilmember Dawson agreed, but she thought for 20 units they were requiring 25% EV-ready. She asked if there is a timing issue with the ordinance on this as it would apply to this development plan.
City Attorney Subramanian said the ordinance is not yet in effect. It would take effect 30 days after its adoption, and it would not be applicable to this project.
Mr. Ferro reassured the Council that with new provisions with EV-ready, it only provides a 120-volt outlet with 15 amps. What they are providing is EV-capable, but it is 240-volt, 40 amp. When that person purchases an electric vehicle, the electrical capacity will be there which is better than forthcoming regulations.
Councilmember Kwok said before they vote on the COA#12 which states: “Design parking garage for electric vehicle EV-ready charging for at least 18 spaces.” He heard something to the effect today of EVcapable which is a different definition, and he also heard EV-capable with level 2, 240-volt, 40-amp capability. So, he asked staff or the applicant to provide the language for COA#12.
Mr. Ferro said until the 2022 Building Code comes out, EV-ready is a new term to be introduced. Currently, it is EV-capable and EVSE (Electric Vehicle Supply Equipment), and they will be providing EVSE for 2 stalls on day one and the other 21 stalls will be EV-capable.
Mr. Griggs said they would be happy to change the condition to state “21 spaces will be EV-capable for Level 2 charging”, he is happy to agree to that for COA#12 if this meets the Council’s liking.
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Councilmember Kwok recommended using the same sentence structure to state: “Design parking garage for EV-capable Level 2 charging for at least 21 spaces.” Vice Mayor Anduri said in the staff report COA#37 states, “The applicant is amenable to the timing that staff recommends.” He asked if staff has language for this or he asked how this is handled.
Ms. Eisberg said regarding the other condition, staff has already made the staff request as part of the conditions of approval so there is no required change there.
Mayor Gerringer asked if any Councilmembers had any concerns about findings or items in the resolution, these can be discussed and then can go to the Conditions of Approval, and then work through that process to a final vote. She suggested a 5-minute break, and Councilmembers wanted to continue.
Mayor Gerringer and Councilmembers had no changes relating to the findings and could support them.
Regarding COA’s, COA#12 has been clarified to state “Design parking garage for EV-capable Level 2 charging for at least 21 spaces.”
Vice Mayor Anduri said the applicant had said they would have 2 charging stations and he asked if this should be included in COA#12, as well. Mr. Wolff confirmed the applicant has agreed to provide 2 charging stations.
Vice Mayor Anduri commented that he very much appreciates what the applicant said about their enthusiasm for public art and how that was one of the reasons for changing the design. Second, he noted that this is an interesting situation in terms of adding parking. He appreciated the applicant at the time they began this process agreeing that every parking space was going to be EV-ready at the time because the Council was having difficulty in having other applicants run conduit, so this applicant is ahead of the process. He would want the applicant to also think more about the bicycles, given it is such a great location, and he made a motion, with Councilmember Candell seconding the motion.
ACTION: It was M/S/C (Anduri/Candell) to adopt Resolution 2022-58 approving the design changes and Condition of Approval modifications, as amended to revise COA#12 to state “Design parking garage for EV-capable Level 2 charging for at least 21 spaces.” Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
BREAK
Mayor Gerringer called for a brief recess at 9:35 p.m. and thereafter, reconvened the meeting at 9:41 p.m.
B. Jean Eisberg, Contract Planner; Greg Wolff, Planning & Building Director GP01-22 / RT06-22: GENERAL PLAN AMENDMENT & REZONING OF AB 2923-ELIGIBLE SITES:
Consideration of: (1) a General Plan text-and-map amendment to create the TOD Overlay District and re-designate the land use designation of the BART parcels from Public Utilities to TOD Overlay District, and, (2) Ordinance 683 to add Chapter 6-13 to Article 5 “Special Districts” of the Lafayette Municipal Code to create a transit-oriented development overlay district and rezone the BART properties accordingly to allow for 75 units/acre, and, (3) development standards related to Implementation of AB 2923. The parcels are generally bounded by Happy Valley Road on the west, First Street Highway 24 ramps to the east and BART tracks to the south, APNs 244-180-XXX and 244-203-001, BART (Owner).
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Recommendation: Hold a public hearing to consider the matter, direct staff, and continue the matter to a future date certain for action, following certification of the environmental impact report.
Contract Planner Jean Eisberg said this item is a public hearing without action being taken tonight regarding zoning on BART-owned parcels as part of the zoning ordinance and General Plan amendments.
She recapped AB 2923, Council actions and the proposed General Plan text and map amendments to create the TOD Overlay District and re-designate the land use designation of the BART parcels from Public Utilities to TOD Overlay District, zoning amendments to add Chapter 6-13 to Article 5 “Special Districts” of the LMC to create a transit-oriented development overlay district and rezone the BART properties accordingly to allow for 75 units/acre, and development standards related to implementation of AB 2923, described public comments received to date, BART’s feedback, and provided staff and the PC recommendation prior to the Council’s discussion.
Vice Mayor Anduri referred to page 2 of the staff report, second paragraph that begins: “However, BART….” The third sentence states, ‘Currently, Lafayette is listed as a future post-2030 opportunity for TOD development due to current staff levels…” In that instance, he asked and confirmed this refers to current BART staffing levels.
Vice Mayor Anduri said the last sentence states, “Evidence of local….and support for infrastructure improvements including parking…” He asked what is the expectation of BART with respect to parking at this point.
Ms. Eisberg said in this case, staff is referring to commuter parking. Right now, BART’s position is they are no longer replacing commuter parking on a one-to-one basis the way they might have seen in TOD projects in the past. They are looking for cities to provide alternative ways to replace commuter parking, working on access plans for access on foot, on bikes, drop-offs, etc. but in terms of commuter parking, they are looking to cities for ways and opportunities for shared parking with off-site locations, not BART’s property.
Vice Mayor Anduri referred to page 3 of the report which states, “Staff recommends that the City Council direct staff to prepare and submit and request to BART to amend its Work Plan timing for Lafayette.” He did not see that repeated at the end of the staff report and when would staff recommend this occur.
Mr. Wolff said it would take some time to prepare. He thinks this goes to the prior item tonight in HCD’s letter to the City. If this action that the Council may take with respect to rezoning because AB 2923 is the law and zoning standards are what they are pursuant to AB 2923. The action that the Council previously directed staff to prepare is what is being considered tonight. In conjunction with this action, a separate but supportive action would be to formally submit to BART to move up in their Work Plan and, in so doing, be able to make the case to HCD that the City is taking affirmative, meaningful action to have housing on the BART site. If this is the direction from the Council, staff will slot that into the other efforts discussed which are currently pending, and staff would tackle it before the end of this calendar year.
Vice Mayor Anduri said he realizes the moving parts here are inter-dependent, the AG’s guidance and what that means for the EIR and what that means for adopting this and they cannot adopt this until they adopt the EIR, and then they discussed the Housing Element earlier so they all fit together. But, if it the Council is serious about opportunity sites on the BART parking lots, he asked why would they not send a letter now to BART asking them to amend their Work Plan. Even given all the other working parts, he asked why the City would want to wait.
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Mr. Wolff said he thinks those actions would be consistent and said he cannot provide the Council with a reason to wait.
Vice Mayor Anduri said then the question is whether the City benefits from acting as soon as they can to express that letter. He knows that Ms. Eisberg reported on the community input and he thinks there is some input that would not want the Council to do that, but he thinks they need to consider if they do want housing on BART whether they need to send that letter now in order to show this is something they want to happen. So, he will leave this for discussion later.
City Attorney Subramanian said if that is something the Council wants to do, she suggested bringing that back as a future agenda item, given this agenda item is really to discuss the rezoning and General Plan Amendment of the property.
Vice Mayor Anduri said in looking through the materials, the Council talked about having BART-specific Objective Standards and asked where these stand. The recommendation is to adopt the Downtown Objective Standards, but right now these do not have the City’s Phase 2 Objective Standards. One of the slides had a picture of Town Center 3 and if something like that were built there it would be a lot better than “stumpies”.
Councilmember Candell said her question is about parking. She knows AB 2923 used to say they were going to provide one parking spot per resident. It sounds like the new law that just passed does not require any parking. So now there is no parking for BART parkers or for residents at the BART lot.
Ms. Eisberg said AB 2923 has a minimum of zero spaces per unit so someone could come in and propose no spaces per unit and a maximum of one space per unit, so they could not exceed one space. She would say the two laws are consistent because now;similarly, AB 2097 allowszero parking spaces per unit within ½ mile of transit.
Councilmember Kwok said he has a question about private open space where there is 50 square feet of private open space. He asked and confirmed this means having a private balcony for each of the 830 units. He asked how this number was arrived at and asked if this was something done elsewhere in the City.
Ms. Eisberg explained that open space regulations in the City are often based on a percentage of the site area which is not typical for a more urban condition. If they look around other cities there is a very broad range. Here, they are talking about 50 sq. ft. for private areas, plus 100 sq. ft. for common open space.
This is high for a more urban setting and is why BART is saying if you can meet the density, it is okay. Other cities might have 80 square feet per unit or something else. She works a lot in the East Bay, is a consultant, and was looking at other examples and she would say it is on the higher side compared to other cities in this urban condition.
Councilmember Kwok said the higher side meaning the combination of the 50 plus 100 is on the higher side. He asked if other cities require every unit to have its own private balcony.
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Ms. Eisberg said again, it is a real mix. Sometimes it is a combination that is allowed. It could be something the developer chooses if it is private or common. Sometimes it is the split requirement like being suggested here. There could just be a common open space requirement with no balconies, and it is just provided in a courtyard, on a rooftop, and they have seen a project earlier tonight where some units had balconies and some just had common open space.
Councilmember Kwok referred to the Development Standards table which shows the maximum building height to be 58 feet. The explanation for the 58 feet was that the first floor would be 16 feet and each additional floor of 2, 3, 4 and 5 would be 10’6”. Is this correct where when adding it up it equals 58 feet.
Ms. Eisberg said that is the idea. Sometimes they will see floor heights at 9’6”, 10’6” is more generous, 16 foot ground floor, and 14, 16, 18 feet is something typical that they see in ground floor retail to allow that level of retail or parking, although they are not anticipating much parking here. That can also accommodate something like parking lifts or other needs on the ground floor.
Councilmember Kwok said when he read the BART technical guidelines published in June 2021 BART had recommended 11 feet per floor and the City was proposing 10’6”. He wondered why not propose 11 feet and be somewhat compliant rather than just give BART another reason to tell the City it is trying to make things more difficult for builders.
Ms. Eisberg said she recalled that it was more of a default if the City had not articulated what that floor height was. Part of the reason she wanted to relate stories to height was to have a metric used elsewhere in the code in terms of height. She may need to look this up to verify but their thinking was that they were defining what the height was to BART to say this is our equivalency of stories to feet which she believes the City is allowed to do rather than taking that 11 foot height as a standard to meet.
Councilmember Kwok asked if 11 feet was that big of a deal which would be 60 feet instead of 58 feet because again, the City wants to show BART they want to be compliant, and he questioned if this was worth it or not.
Ms. Eisberg said one reason for the City to avoid a round number is that if they go to 60 feet, technically someone can squeeze in potentially 6 stories and they are required to allow 5 stories and not allow 6 stories. This was part of the thinking of not going to 60, per se.
Councilmember Kwok referred to shared parking and knows the third question was whether to delete the second footnote or keep it. He read it several times and could not understand at all what it means, so he has no way to provide feedback on the third bullet point. He asked whether it is worth going into more detail and whether other Councilmembers might also feel the same.
Ms. Eisberg explained the idea is now we live in a world of objective standards so they are trying to make this standard objective. The statute says they need to allow shared parking. It does not say more than that. What they have said is that if there are multiple uses that are providing parking on the site and the applicant wants to share across those two uses, they need to use objective criteria.
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Staff has identified the Urban Land Institute as that potential criteria or some other methodology they would need to indicate to estimate the shared parking characteristics of the proposed land uses. This is what the residential demand is, the commercial demand, and then they have capped it at no more than 50% being shared. They have related it to the maximum parking that is allowed under the statute, so they cannot require more than one space per unit and the calculation would happen off the maximum parking ratio. For example, if they have a maximum of one space per unit and the commercial parking is 2 ½ spaces per 1,000 square feet, they could use those maximums and take 50% of that to share across the two uses.
Mayor Gerringer opened the public comment period.
DAVID CLARK referred to page 5 of 7 of the staff report in the public comment section. He thanked Ms.
Eisberg and Mr. Wolff for including the conversation in the second paragraph with respect to the discussion at the PC about the no net loss provision that was provided in SB 330. He particularly appreciates the fact staff referred to it as a creative idea because it was and still is. He relayed that many years ago it was almost a rite of passage to rebuild a car engine which he did. While he has not used these tools often, they have come in handy when needed and he thinks this no net loss provision falls into that category. They may be able to use this again. He appreciates the comment about the timing not working for this effort, but now it is out there, it may be a useful tool in the toolkit for another day.
PATTY BATTERSBY ceded her time to Colin Elliott.
COLIN ELLIOTT said he would like to suggest adding two specific things to the zoning standards. They are pulling from AB 2923 certain basic minimums. The first is on fire safety. The EIR is on hold while the City considers the Attorney General’s recent guidelines. Part of the guidelines are developing thresholds of significance as he put it, and this was also something Scott Sommer had mentioned in letters. Prior to that, the City should develop some actual development standards regarding fire evacuation and fire safety. He suggested putting a placeholder in zoning to say that this project shall conform with the City’s fire evacuation specific performance standards. He thinks if these are developed the City needs to specifically mention it is part of this overlay district. Possibly the City could do a separate overlay for the very high fire hazard severity zones and this covers it, but either way, he thinks it needs to called out.
The second request is the parking, specifically commute parking which surprised him. He would like to suggest within zoning to reference something else in AB 2923 within Section 3, G and H. Section 3-G states. “The District shall establish and amend as necessary a parking replacement policy consistent with the District’s practice of auto-dependent stations.” Lafayette is defined as an auto-dependent station and there are only four in the whole system and this has not changed. It goes onto say “with specific provisions to ensure after construction of a TOD project auto-dependent stations are still accessible by private automobile.” Even more importantly is 3-H which states “For any station where district commuter parking is reduced as a result of a TOD project where TOD zoning standards apply, the District (BART) shall develop and fund an access plan that maintains station access for at least the number of customers affected by the reduced number of commuter parking spaces which shall include specific consideration of customers who live further than one-half mile from the station.”
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He understands BART does not want to do one-for-one replacement. Their own standards also say they will do a robust station access plan and he thinks that plan will show they will have to replace some of the parking or they will need to come up with something, and they will need to fund it and not the City. So, he thinks the City should reference these two sections of the act and the City does not need to do anything more and make it known that they will be looking at this commuter situation because just for VMT, if all the parking is removed, those cars end up on the freeway. So, there is a significant EIR air quality issue because people know it is a minor number of people from Lafayette. Many people parking come from other parts of the East Bay and surrounding cities. So, this is a very important one the City should reference in the zoning, as well. It will be a battle with BART because they do not want to pay for it but AB 2923 makes it specifically clear and it should be reflected.
Councilmember Candell asked if the new law regarding no parking within one-half mile of transit supersedes what is in AB 2923.
City Attorney Subramanian said she would need to delve into that a little more to confirm.
Vice Mayor Anduri asked if this has come up in discussions the City staff has had with BART because up until now, he has heard the City must find and fund parking. He can understand the legislature requiring that parking be replaced because people will be on the freeway if it is not.
Mr. Wolff said staff will scrutinize the language a bit more to confirm their understanding, but he does not believe the statute says that BART shall fund the replacement parking. Rather, it calls for BART to fund the Station Access Plan which is part of the overall development project for a TOD project on any of BART’s stations. Part of the goal of a TOD project is to increase BART ridership. So, part of any TOD project is a station access plan to look at all modes of access to the station via vehicles or transit or walking/biking, etc. In looking at the Access Plan in a broader sense and not just automobiles, BART has said that would be part of a TOD project and that the days of one-to-one replacement parking is not something BART is able to design and fund. So, cities will be looked upon and the surrounding land uses, and it might be something akin to a shuttle from satellite to City parking lots or opportunities like this that come out of the Station Access Plan.
PATTY BATTERSBY thinks the most important duty of the City of Lafayette is the protection of public safety which means protecting lives. They do not see any reference to a very high fire danger in the staff report.
There is a total lack of wildfire evacuation standards to be implemented under the land use policies in Lafayette. She agrees with Mr. Elliott’s comments regarding that. On October 17th, she submitted a request signed by 75 Happy Valley and Glen individuals to the City Council in accordance with AG’s Bonto’s memo to form a task force to develop community-wide goals and standards. GPAC is in session and would be an appropriate body to be on that task force and she thinks there are many Glen residents that would be willing to volunteer as well. Their neighborhood is in a very high fire severity zone. It is the highest designation in the State of California. The current EIR inaccurately states that the fire safety is less than significant. The Con Fire District assessed on February 10, 2021 the Glen neighborhood: “The assessment determined that the wildfire behavior has potential to be significant due to adjacent fuel and topography.
The Glen Road neighborhood is located in a box canyon just south of the Briones Regional Park.” City Council Meeting Page 27 of 37 October 24, 2022
The Glen has one narrow evacuation route out and the current EIR states that it is not significantly impacted even with a .92 hour increase in evacuation time with the development of BART. This is incorrect and unacceptable. They have obtained legal counsel and are serious about pursuing any legal means to protect the lives of their residents. The safety of the Happy Valley Glen residents is at stake and they urge the Council to create wildfire evacuation standards.
MICHAEL GRIFFITHS said he is confused by Vice Mayor Anduri’s statement that the City needs to get the Council to go ahead and let BART know about the City’s interest in accelerating things. He also would encourage the Council to use resources like Colin Elliott and the gentleman who sent in the CEQA letters to the Council. He is not sure they received the attention they deserved, and he would encourage this pro bono resource available to the City which is unique in California. These are 30-year experts who are recognized throughout the State.
The EIR’s averaging methodology is unacceptable to CEQA. Because of that, he would propose using the Terrace’s evacuation risk methodology instead which was accepted and certified by the City Council in August 2020. This methodology uses site data as required by CEQA. If the City applies this approach to BART it indicates approximately the same potential number of deaths as at the Terraces, namely 500 or 5 times the number of deaths that happened at Paradise. This is hardly what one would consider a less than significant impact. Therefore, he encouraged that review than sticking to less than significant. He did not want Lafayette to make the headlines for the greatest number of deaths in California history.
The other possibility Mr. Elliott raised is an interesting idea which is if commuter parking is a required component then maybe they could reduce the number of parking spaces, have commuter parking, and find the other RHNA units elsewhere. The Fire Chief said he could handle a wildfire in an hour based on his gut. CEQA does not accept his gut. The new County Connection General Manager did not absolutely commit to availability of buses in a timely fashion for residents and school children, and he would encourage the establishment of standards for the RHNA opportunity sites but also to any other AG issue.
SCOTT SOMMER said his comments focus on the Draft General Plan zoning amendments and in particular, the absence of wildfire evacuation performance standards. There are others who have picked up on this issue and concurs with some of those comments. He referred to page 3 of the staff report at the bottom and the last sentence, there is a simplistic reference to the site being a very high fire hazard severity zone.
There is reference to building and site design standards which mostly means fire hardening, etc. There is nothing there about wildfire evacuation to their surprise. Obviously, the discussion has included things like the size of balconies and floor heights, but there is very little if anything about wildfire.
He referred to page 4 and said there are a series of bullet points under staff recommending several additional standards. There should be a 5th which is there should be performance standards under very high fire hazard severity zone criteria the City should develop. There are probably four policies at least in the General Plan references that could reference that or the Council could adopt a very specific one. Cities and counties sometimes will cite their policies of the General Plan to deny projects. It is critical that the City do so here, and the absence of that should be the subject of direction to staff tonight. He would also point out that watching the last Council meeting several Councilmembers commented on page 11, 12 and the AG’s reference to standards of performance or thresholds of significance. They have been pointed this out for weeks.
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His letters, including the September 30th one and the one before that quoted CEQA Guideline 15126.4.
Richard Drury did the same thing. This has been before the Council and the DEIR and staff so far have failed to address that requirement and did not even respond to their comments on it. The specific requirements are that the City commit itself to the mitigation that it adopts specific performance standards mitigation will achieve and identify the type of potential act ions that can achieve the performance standard. The AG memo gave a nice list of mitigation measures. He would recommend the City get on with that and get this done. If they have a January deadline, he recommended getting the performance standards adopted and he also suggested in his letter a non-degradation policy.
ROBERT LAVOIE said he agrees with previous comments, hears a lot of talk about building affordable housing and reducing parking spaces, but no discussion of safety of residents which are real lives in an evacuation situation. Increasing the density downtown or BART to 75 units/acre or even the current fully built out 52 units/acre will have a significant impact on the very high fire zone evacuation and potential gridlock in the downtown area. The EIR needs to address this properly. As they heard from Donn Walklet earlier today who is a 30-year fire expert in wildfires, he stated that he thinks the area is more dangerous than Paradise or the Oakland Hills so this warrants a very careful analysis in the EIR.
Mayor Gerringer closed the public comment period, and asked for comments from Councilmembers.
Councilmember Candell asked about the question raised from Mr. Griffith. Vice Mayor Anduri said he responded to it and said he raised it so it could be discussed tonight and he understands what his response was.
Councilmember Candell said in listening to comments it did strike her that the Council should include some evacuation and fire safety wording in this document and suggested basing it on AG Bonta’s suggestions. She asked staff to investigate the parking and understand exactly what AB 2923 says and also interplay that with the other law that just passed.
Vice Mayor Anduri said on the first fire evacuation point, he fully understands the situation but before he would give any guidance on that he would like to hear the City Attorney’s report on the AG’s guidance.
He thinks it would be premature for the Council to call for anything before getting that guidance. He agrees completely with the parking.
Mayor Gerringer said because this is coming back after the EIR she does not disagree that there will be an analysis coming back on that. She was not sure that could be woven in before or what the timing would be for the City Attorney to return with the analysis.
Vice Mayor Anduri suggested giving staff input on the specific points they have asked for input and then if there are other items the Council would like to see, they can then add those in. He referred to the public open space and he thinks that is hard to decide on that now because it depends on what the design. He would like to see public open space there but he questioned how that would impact development of a building there. He also suggested keeping in mind that the Lafayette BART station basically opens to their downtown. So, in terms of having a public plaza, that is leading to the downtown so it is not as necessary.
But, regarding having public open space in an 11-acre acre that will have 5 stories of units, yes, he comes out wanting to see that.
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Councilmember Kwok offered an opposing view, stating the recommendation is that there be 100 square feet of common or public space per unit. If there are 800 units there this is 80,000 square feet. If one acre is 44,000 square feet, this is roughly 2 acres of space. There is a difference between common space and public space. Common space would be for those 800 tenants to use privately, but when referred to as public space, it means others enjoying it also. So, on an 11-acre site, the City is recommending 2 acres to be common or open space which he supports but is also sensitive to the fact that the bigger you make it the harder the project becomes. They would have to push the project higher to have more open space. If it is made to be public open space, it might suggest that it becomes on the ground floor as opposed to the top floor where it might be more private. So, the requirement to make it public puts even more pressure on the developer to go up.
He then asks the question that if it was public, who in the public will come to use that space? He lives one block away so he would only have to walk downhill 7 minutes to get to it. He would ask if he would enjoy that space and he would not think he would very often. If that space were on Mt. Diablo downtown, that public space is a lot more meaningful to the public than when it is north of the freeway where no one from downtown is going to walk up to use it. From his neighborhood, not many people are likely to use it.
So, it is common space. They force the developer to make it a public space but he is not sure the public is going to use it because it is bounded by a freeway and Deer Hill Road.
Therefore, he ends up advocating that the 100 square feet be used as common space for the 800 residents. This allows to put it at higher floors and gated, more secure, and the PC hashed out this topic as to the security aspects of where the space would be. He thinks there was some inclination to call this common space for the residents as opposed to the public. So, he thinks the Council should just require it to be common but not public.
The second comment he has is on his earlier comment about the 50 square feet of private space which would be balcony. He also thought this is another one acre to be used on balconies, which is a lot of real estate, so how many people especially facing the freeway want a balcony facing Hwy 24 if the City required that. So, he would rather not have the private requirement and instead have those 800 tenants use the common space and see other people instead of everyone getting 50 feet. He did not think the City should mandate having that private space, given the math and the pressure on the developer to try and figure that out. So, he suggested zeroing out the 50 feet to zero and not require private space.
Vice Mayor Anduri said he agrees to the extent that in buildings this big, they want the developer to build in amenities that can be used by residents. So, instead of a 50-foot balcony on each unit, there is a fitness center or community center in the building that can be used, he would favor that. On the public space, he asked if Councilmember Kwok is saying he wanted the public space requirement to be converted into private and be used for a fitness center or something else.
Councilmember Kwok said he was saying that the public side is nice to have but the City should not require it.
Vice Mayor Anduri said in building 11 acres, rather than having 11 blocks, it would be good to have some outdoor space on the ground floor or podium level, like Town Center 3 apartments where there is a private outdoor area and residents can use that. It breaks up the buildings and is much less oppressive in breaking up the buildings. Again, it all depends and this is why subjective guidelines are so good because it depends on what is in front of you.
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Councilmember Candell said the way she was reading public open space is that the developer could choose. They are not forcing them to do public or common space. We are letting them choose what they want to do.
Ms. Eisberg said the way it is written now is intended to state that a developer would be required to provide both private and common open space. Currently, they do not have a public open space provision in the draft ordinance, but their question was should they have one. It might not be for each building, but site-wide, for example.
Councilmember Candell asked if AB 2923 or the BART TOD policy talk about public spaces. Ms. Eisberg said not as a separate standard. It is not a required standard. Staff included open space requirements because it exists in other zones that allow housing and it made them think whether they should add a public open space requirement. BART neither requires they provide one nor prevents them if they can meet the density required.
Councilmember Candell said she likes the comments that the City’s open space requirements are large and so she would support reducing that on this site somewhat, but she also likes the idea of letting them choose which adds flexibility so they could do either/or.
Councilmember Dawson said in looking at the technical standards of BART if these things do not preclude development it would be nice to have some open space requirement. She supported providing at least a minimum standard and assessing it on a per project basis.
Vice Mayor Anduri added that for 11 acres and 800 units he questioned the number of children living there. They need a park or ground level area for those kids. If there is one developer for the 11 acres, he thinks the City’s standards should require a certain size playground/park area for them. He was not sure how this can be written in if there are 3 separate developments, but the developer should be responsible for developing some sort of playground. This can be private open space and just for those in the development, but with that many people in the area and there is no other park nearby, he thinks a playground should be provided on site.
Councilmember Kwok asked when Vice Mayor Anduri said a ground level playground, he asked if it could be on a platform level above a parking lot. Vice Mayor Anduri said yes, it could be.
Councilmember Kwok said when he said 2 acres of the 11 acres would be open space, he is highly in favor of that because BART does not require any out of 11 acres, and everyone would feel the 800 families would need that open space. Allocating 100 square feet for that or 2 acres should be included, and if they wanted to make the common space for residents public, that would be fine, but he would not recommend the City require them to do that because it would put pressure on the project and he was not sure the public would use that.
Mayor Gerringer stated she was in favor of this. She asked for any other comments for Number 1 relative to public open space, and there were none. She asked for comments regarding Number 2, upper story step back. The City has it in, and BART said it is not their interpretation. The PC has recommended keeping this standard in as drafted.
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Councilmember Kwok said BART is saying the City must allow 5 stories across the entire 11 acres and the City is saying they allow 5 stories for some of it, but when bordering the roads, there should be a setback starting the 3rd and 4th story. He thinks the City can indicate they hear what BART is saying but they still will write their standard differently and agree to disagree. He asked if any penalties would be significant.
Mr. Wolff said Lafayette staff and BART staff interpret the AB 2923 provision about allowing 5 stories differently. BART is taking a 100% to allow 5 stories everywhere, but where that the case, they must allow for an FAR of 3, so if it is 5 stories everywhere they are effectively getting to an FAR of 5 which well exceeds the FAR of 3. They all recognize that there will need to be space dedicated to circulation and open space and other components of the project; however, he does not see it as insurmountable. The City would lay out to BART what their desired design standards are and provided it does not preclude a project that gets to be 5 stories, a FAR of 3, that achieves other standards, it ultimately is achievable in a project design.
If the Council supports the PC’s recommendation there is the risk that BART, when it reports annually to the State on local jurisdiction compliance, they might say Lafayette allows 5 stories but not everywhere.
So, this will be found out of compliance. BART will be part of the project design and the City is essentially calling out what they want to see in a project. So, he is not aware of any significant risk or downside with that one asterisk in the report to the State, and staff is happy to take direction on it.
Councilmember Candell said she supports keeping the step back requirement in.
Regarding Number 3, shared parking, Mayor Gerringer asked for comments. She said she is supportive of leaving it in, and Vice Mayor Anduri said he also supports the PC recommendation.
Councilmember Kwok said he does not understand it. It makes it complicated by having formulas and so forth. He thinks if you have 800 units and 400 parking spaces and BART is developing it, they have the incentive to make it work for BART riders and for tenants, and he would just have them work it out. It is their problem. He asked why would the City get in the middle of it, and he would delete it. But, he does not fully understand it either.
Vice Mayor Anduri said he thought the shared parking related to if the City had a mixed-use building, it would be sharing between the residential and non-residential uses and not the commuter uses.
Ms. Eisberg clarified and said the City does not regulate commuter parking in the zoning ordinance. So, if the zoning ordinance regulates the residential, and AB 2923 requires that the City allows shared parking but does not say anything beyond that. It is not impossible that they could share commuter and residential parking if they are active at different times of day, but this is not something that they specifically regulated here.
Councilmember Kwok said he thinks there is limited parking there, so if residents drive off to Walnut Creek or San Ramon to work and have left a parking space open and a commuter could use it, they should use it. He thinks there will be many things they will not know as to how it will work and he would rather have less rules than more rules at this point, particularly since the developer and BART will be motivated to figure this out. Therefore, he would delete the #2 footnote.
Councilmember Candell said she thinks the Council should get clarity from what Colin Elliott talked about to find out what they really say before finalizing this and removing it. She thinks there are still some questions she would need to understand before she would take it out.
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Councilmember Dawson said regardless she sees these as guidelines for a developer. She would recommend leaving it in because it is similar to the City’s shared parking approach and it makes sense. As a developer comes in with a project, at least the City will have a formula to fall back on to say this is what the City would like it to be but what is it that the developer needs. So, she supported leaving it in.
She asked if AB 2923 preclude any other density bonuses. She asked if there were any other waivers that could possibly come along via AB 2923 on BART property.
City Attorney Subramanian asked if she meant in addition to density bonus law, and Councilmember Dawson said yes. Ms. Subramanian said she does not think there are any additional provisions for that.
They have the upzoning that is occurring that is required by law, but she does not see any other extra bonuses.
Ms. Eisberg said to be clear, a developer could use State density bonus law with a project on the BART parking lot.
Vice Mayor Anduri said it could go to 112/acre, and Ms. Eisberg confirmed, given concessions and waivers on height.
Mayor Gerringer said she believes those were the 3 questions, and she asked if there were any others.
Vice Mayor Anduri said he would like to talk about objective standards for the 11 acres. This is one of the things he thought they were going to try to do as part of this process; to get ahead of what they would like to see in this discreet area. He does not know if the PC has had any discussions on that, and it could be as simple as on the other side of BART are shingled buildings of Town Center 1 and Town Center 3 requiring the buildings here to be shingled buildings. This would be one thing so they do not get concrete and stucco in this location. He is suggesting it as an example. Before adopting anything here he asked if they want to have more detailed standards than the City does now for the downtown for this particular area, given its extreme visibility.
Councilmember Candell asked if these must be developed now or is this something they could work on after they get through this. She asked if they could refer to creating something like that and create it next year.
Mr. Wolff said the statute allows the City to develop any objective standards consistent with other state law now or in the future. So, just like the downtown objective standards, there is a phase 1 to get minimum in place and then a more elaborate and refined set to follow. That approach can be taken with BART as well if the desire is to move ahead more quickly.
Ms. Eisberg said when they spoke in February, staff presented a layer of things they could look at which included some of the utilities, civil, new internal streets on the property, grading, master plan visualization, and they are not required to have any objective design standards. They did want to apply at least a minimum threshold, but if there were master planning and they started to lay out potential street locations, there could be a whole number of additional design standards that could go with that.
Mayor Gerringer asked if Vice Mayor Anduri was suggesting doing that now. She recalled it would be adding another layer to what they put forward.
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Vice Mayor Anduri said basically they are pulling in the downtown objective design standards. If they were to stop there for now, noting they cannot adopt this until they adopt the EIR, so they are aways away yet.
If they do that and adopt it just with the phase 1, he asked if staff is saying they can come back and amend the TOD overlay with more precise standards. Ms. Eisberg confirmed.
Vice Mayor Anduri said along with the other 40 or so things that need to be done and programs, unfortunately this needs to be one of them.
Mayor Gerringer asked or any other comments on this. She asked if Mr. Wolff or Ms. Eisberg were looking for any other items the Council has not yet covered.
Mr. Wolff said he thinks the Council has touched on all items staff has laid out.
Councilmember Kwok pointed out two things that were not discussed but important were the retail use is permitted but not required. He thought the decisions the PC made and embedded in this are good.
Another important aspect not discussed today is that this overlay would sunset when and if AB 2923 sunset or earlier terminated, so there is a tie in to that, which is an important aspect of what is being recommended. Finally, to Vice Mayor Anduri as to whether they should do the next steps here. He thinks the reason they are here to do this is because they passed the July date and AB 2923 came to pass, and this is their first effort to be able to show BART and HCD that the City Council is interested and proactively doing something. If they put work into this and not get to full details yet, he thinks to manage their workload it is better to do this good faith effort as a start and then start to fill it in later if they accept it.
Vice Mayor Anduri said he wanted to confirm that the Council agreed earlier is that staff would come back with respect to page 3 of 7; the staff recommendation that the Council direct staff to prepare and submit a request to BART to amend its Work Plan timing for Lafayette. They are not deciding that tonight but staff will think about the most strategic time for them to do that and then return. He asked if that is correct, or he asked if the Council should do it tonight.
Mr. Wolff said staff will return and bring this back. He said the Council has a few options as far as a motion.
The Council could continue it to a date uncertain which would mean staff would need to place new notification and advertisements in the newspaper or staff can identify a date to return which could be continued if additional time is needed. A date certain would be preferred, and he suggested the Council meeting of December 12, 2022 which would be a safer date than in November.
ACTION: It was M/S/C (Kwok/Anduri) to continue the matter to December 12, 2022 for action, following certification of the EIR. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
EXTEND MEETING
ACTION: It was M/S/C (Anduri/Dawson) to extend the meeting to 12 midnight. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
9. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
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Vice Mayor Anduri said when the Council set up the GPAC, they provided for certain positions chosen by lot. It now turns out that of those positions that are chosen by drawing 6 of them do not have an alternate.
The question is what the Council needs to do about that. All 5 residential representatives do not have an alternate at this point. He suggested through the Mayor to agendize a discussion of how to choose alternates for GPAC.
Vice Mayor Anduri then reported on a great collaboration between the Lafayette School District and the Lafayette Community Garden and Outdoor Learning Center. Right now, there is a field trip experience at the Community Garden for all 14 of the 3rd grade classes. They are going 2 classes a day over a period of 7 days, spending 3 hours at the Garden which is described as an “immersive experience where they learn about Miwok culture and the native plants Miwoks used in their daily lives.” He described activities and the tour of the garden, which is a great resource, and he congratulated the school and the Community Garden for providing this to the community.
Third, in terms of Plan B, counting the number of scheduled Council meetings between now and January 31st is only 5 meetings. He suggested putting on the next Council meeting a discussion of Plan B or at least discussing whether they want to start the discussion and then it would be at the November 28th meeting.
Mayor Gerringer agreed and they can look at calendars to determine if additional meetings are necessary to get things done. Councilmember Dawson asked if they would consider holding a joint meeting with the PC, and Mayor Gerringer confirmed.
Councilmember Candell referred to Plan C and she will work with Ms. Subramanian on this and get this on the schedule as well. Mayor Gerringer said she wants to make sure they are prioritizing resources on the things most important right now. Vice Mayor Anduri said when he raised Plan C, he meant a legislative option and not a litigation option. Mayor Gerringer agreed and said this can return or have the Legislative Committee do this afterwards. In looking at this, she wants to be sensitive with resources and priorities.
Councilmember Kwok reminded everyone this weekend is Halloween and for the Youth Commission is the annual Haunted House this Friday from 5 to 9 p.m. and Sunday from 5 to 9 p.m.
Mayor Gerringer thanked Ms. Subramanian, Ms. Robbins and Ms. Iarla and said on Thursday evening, along with Mayors from many other communities she and her husband will attend an event at the French Ambassador’s residence. At the time, Mayor Carol Federighi was invited and went to France. She is going to Washington, D.C. and will represent Lafayette .
B. City Manager’s Update
Recommendation: Receive and file.
Director of Administrative Services Tracy Robinson reported that there was an item that did not get agendized that has some urgency to it. The Council needs to approve the 9th amendment to the current lease and have signed a letter of intent, but the agreement needs to be executed. It is urgent because the landlord states his bank is requiring the executed lease for him to be able to finance the rather extensive renovations on the suites. Therefore, this should take less than 15 minutes and she would like it done this week, if possible. In the past, the leases are things that have gone on the Consent Calendar.
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She confirmed a special meeting requires 24 hours’ notice, and she will schedule this any time after noon on Wednesday for a very short meeting requiring a quorum of the Council. Vice Mayor Anduri and Councilmembers Candell, Kwok and Dawson confirmed they were available at 3:00 p.m. on Wednesday, October 26th.
Councilmember Anduri asked if there is an update the Council will need to consider relating to the Brown Act and meeting in person or remote meetings. Ms. Subramanian said staff has been talking internally and it will likely end in the February timeframe, depending on the status of COVID. At that time, beginning in March they most likely will be meeting in person.
C. Councilmembers Candell and Kwok – DEIB Subcommittee
Requesting a proclamation recognizing November 13-19, 2022 as “United Against Hate Week” in Lafayette.
Recommendation: Approve the proclamation recognizing November 13-19, 2022 as “United Against Hate Week” in Lafayette.
Councilmember Candell said she would want to make this proclamation especially pertinent this year around the upcoming election. She implored everyone to keep emotions out of the decisions in who people will vote for this year. She had a very odd personal encounter where a difference of opinion led to a lashing out where she felt hate and anger about an opinion. She thinks people can disagree but they must not bring hate or anger into conversations in elections this year.
Councilmember Kwok also shared a personal view on why this proclamation is important to residents.
Hate crimes are still occurring in California and the Bay Area. An Asian American friend of his in the City of San Francisco was attacked this summer one block from his home near the Mosconi Center when a guy on a bike jumped off, beat him in the face, kicked him on the ground, broke his collarbone, and he is a senior citizen. He did not rob him, but just beat him up and got on his bike and left. The police caught this person and put him in jail a few days later.
He said many Asian American seniors are being attacked but not robbed, and some residents feel there is not a problem in Lafayette, but he hears of micro-aggressions that are happening here so people should aspire to stand up and say this is not acceptable in the community and the Bay Area, that they encourage victims to speak up, not stand alone, and Lafayette is united against hate with other communities around the Bay Area, and he asked to show unity with others on this theme.
Mayor Gerringer opened the public comment period.
LIBBY HENRY thanked the Council for bringing this topic up. She is a member of the Lafayette DEIB Subcommittee. They had a table at the restaurant where she heard from Alison Hill about an incident reported to her at the table about something that happened at the RoundUp which she was not aware of. There was a black doorman at the RoundUp who quit his job because he was harassed and called names. This sort of thing is something she thinks they should talk about along with residents of Lafayette about their experiences and incidents.
ACTION: It was M/S/C (Candell/Kwok) to approve the proclamation recognizing November 13-19, 2022 as “United Against Hate Week” in Lafayette. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
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D. Councilmembers Kwok and Dawson
Resolution 2022-57 Appointing 3 members to the Youth Commission Recommendation: Adopt Resolution 2022-57.
Councilmember Kwok said the Youth Commission is a 15-member body with 3 vacancies, and he and Councilmember Dawson agreed that 4 applicants were extremely impressive in the interview process. He made a recommendation for James Hanzel, Audrey Parkin, and Zarah Thomas to be appointed to serve 2- year terms, and that Juliette Lee be named an Associate member and attend and participate in Youth Commission activities and meetings.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Dawson/Kwok) to adopt Resolution 2022-57 appointing James Hanzel, Audrey Parkin and Zarah Thomas to the Youth Commission. Applicant Juliette Lee will be an associate member and encouraged to attend and participate in Youth Commission activities. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok and Gerringer; Noes: None).
10. WRITTEN COMMUNICATIONS
A. Letter from Lori McDonald, Contra Costa CAER Group, Inc., requesting a proclamation recognizing, November 2, 2022 as “Shelter In Place Education Day”.
Recommendation: Approve the proclamation recognizing November 2, 2022 as “Shelter In Place Education Day” in Lafayette.
Mayor Gerringer recognized receipt of a letter from Lori McDonald, Contra Costa CAER Group, Inc., requesting a proclamation be approved recognizing November 2, 2022 as “Shelter in Place Education Day.”
Vice Mayor Anduri said the proclamation approved under Item 9.C contained language he thinks they should use here because these are proclamations approved by the full Council. He recommended that in the “Now, Therefore Be it Resolved” paragraph that they replace the words “I, Theresa Gerringer, Mayor, on behalf of the Lafayette City Council, Lafayette, California, do does hereby proclaim…” Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Candell/Kwok) to approve the proclamation recognizing November 2, 2022 as “Shelter In Place Education Day” in Lafayette, as amended. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
B. E-mail from Elaine Farrell, requesting a proclamation recognizing November as Family Court Awareness Month in Lafayette.
Recommendation: Approve the proclamation recognizing November as Family Court Awareness Month in Lafayette.
Mayor Gerringer recognized receipt of a letter from Elaine Farrell, requesting a proclamation recognizing November as Family Court Awareness Month in Lafayette. This proclamation’s “Now, Therefore Be it Resolved” clause also is recommended to be amended to replace the word “do” with “does.” Mayor Gerringer opened the public comment period, and there were no speakers.
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ACTION: It was M/S/C (Candell/Dawson) to approve the proclamation recognizing November as Family Court Awareness Month in Lafayette, as amended. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
11. ADJOURNMENT – 11:48 p.m.
APPROVED:
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Teresa Gerringer, Mayor
ATTEST:
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Joanne Robbins, City Clerk