City Council & Youth Commission Meeting Page 1 of 40 November 14, 2022 7 City of Lafayette
City Council
Youth Commission
Meeting Minutes
Teleconference Meeting – Watch on the City of Lafayette’s YouTube Channel at November 14, 2022 http://bit.ly/LoveLafayetteYouTube Submit public comments to [email protected] 5:30 p.m. before or during the meeting.
To protect public health, our residents, officials, and staff, and aligned with the Governor’s recent executive order N-29-20, certain teleconference requirements of the Brown Act have been suspended, including the requirement to provide a physical location for members of the public to participate in the meeting. Here is how to participate in the meeting and provide public comment:
1) Watch or Listen: Meetings are broadcast on the City of Lafayette’s YouTube Channel:
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City Council & Youth Commission Meeting Page 2 of 40 November 14, 2022
1. CALL TO ORDER
Mayor Gerringer called the Regular City Council meeting to order at 5:30 p.m. via teleconference.
2. ROLL CALL
Present: City Council: Mayor Gerringer; Vice Mayor Anduri; Councilmembers Candell, Dawson and Kwok
Absent: None
Present: Youth Commission: Co-Chair Emma Hunt and Miela Hsu Staff Present: Niroop Srivatsa, City Manager; Tracy Robinson, Administrative Services Director; Greg Wolff, Planning & Building Director; Renata Robles, Senior Planner; Nancy Tran, Senior Planner; Justin Bodily, Recreation Coordinator; Sarah Owsowitz, BBK Attorney; Mala Subramanian, City Attorney; Joanne Robbins, City Clerk
3. ADOPTION OF AGENDA
ACTION: It was M/S/C (Dawson/Anduri) 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).
MICHELLE said on behalf of Topper Lane and Birdhaven Court residents who met with Mayor Gerringer, Councilmember Candell, and Transportation Program Manager Patrick Golier informally on October 25th, they appreciate they listened and exhibited an understanding of their many concerns regarding the proposed Class I facility on Topper Lane.
They acknowledged the documents they requested and received from Mr. Golier and are awaiting an answer from Mr. Golier on any hard data collected for Topper Lane that would necessitate anything above and beyond traffic calming for this lane. In addition, they proposed going with the City to MTC to re-scope the grant request, as it is their desire to work in collaboration with the City. The City agreed to explore the Council taking up the re-scoping issue at a future meeting and stated they would get back to them in two weeks if they decided to place this issue on the agenda. To date, they have not heard back from the City and are interested in any information they have to relate to them in the proper forum.
Mayor Gerringer stated the Council has received their letter today and are in the process of preparing a response.
5. CLOSED SESSION
A. Conference with Legal Counsel – Anticipated Litigation Initiation of Litigation pursuant to Gov. Code 54956.9(d)(4) - (1 case)
REPORT OF CLOSED SESSION
City Attorney Mala Subramanian reported that the Council directed staff to initiate litigation and, once commenced, the details will be disclosed to any person upon inquiry pursuant to the Brown Act.
City Council & Youth Commission Meeting Page 3 of 40 November 14, 2022
6. PUBLIC COMMENTS (For items not on the agenda)
DAVID CLARK referred to the Downtown Creeks Plan and strongly encouraged the Council to act on the plan before the end of the year.
Vice Mayor Anduri stated the Master Downtown Creeks Plan has been adopted, and he confirmed Mr.
Clark was speaking about amendments to existing City ordinances to reflect what is in the plan.
Mr. Clark commented that some of the language was in the Downtown Creeks Plan as it was adopted in 2017 but it was never codified with the language that has changed since then, as well as any State laws affecting certain provisions. He noted there is a track-change version from the Planning Commission which needs to be integrated into the LMC.
7. PRESENTATIONS
A. Tracy Robinson, Administrative Services Director
Introduction of New Employee – Riki Juster
Recommendation: Receive and file.
Administrative Services Director Tracy Robinson introduced new employee Riki Juster, Program Coordinator for the Lamorinda Spirit Program. Ms. Juster worked closely with Mary Bruns prior to her retirement and over the last 20 months, Ms. Juster has become passionate about the Lamorinda Spirit’s mission. She gave an overview of her previous experience, and Mayor Gerringer and Councilmembers welcomed her to the City.
B. Youth Commission
Annual Update
Recommendation: Receive and file.
Recreation Coordinator Justin Bodily stated Youth Co-Chair Emma Hunt and Commissioner Miela Hsu will share a slide show presentation on the Commission’s 2021/22 annual recap.
Youth Commissioners Emma Hunt and Miela Hsu then provided a PowerPoint presentation of the Commission’s annual recap which depicted the many events held over the year. Mr. Bodily highlighted that the Commission will be planning on holding another Family Dance in March on St. Patrick’s Day.
Mayor Gerringer opened the public comment period, and there were no speakers.
Mayor Gerringer and Councilmembers thanked Ms. Hunt and Ms. Hsu for their presentation and thanked the Youth Commission for their leadership, engagement of people of all ages, and exciting events.
C. Thomas Adams, Avenu Insights and Analytics
Sales Tax Presentation
Recommendation: Discuss and direct.
City Manager Niroop Srivatsa introduced the item and said Tom Adams from Avenu Insights and Analytics came before the Council a year ago and has returned with a presentation.
City Council & Youth Commission Meeting Page 4 of 40 November 14, 2022 Tom Adams, Avenu Insights and Analytics, reported that the sales tax numbers the Council will see today reveal that things are getting back to normal. He gave a PowerPoint presentation and described sales tax drivers as primarily restaurants at just under 25% of the total sales tax, about 19% from retail, the County Pool which includes in use tax accounts for about 20% of the City’s sales tax from out-of-state and close to half of that is internet-related activity, food and liquor markets is about 14%, gas stations and auto repair at about 13%, and smaller sources like construction and miscellaneous.
In looking at recent cash performance, it is clear that the pandemic things changed a lot and over the last 1 ½ years there has been some bounce back recovery and double-digit growth over the last few quarters. They are looking at Q2 of the calendar year where sales tax began to slow a bit which is similar statewide. Cash numbers were up about 6.6% this year which is right around where the State average is.
He then presented benchmark years for the current quarter which corresponds to the fiscal year, stating 2019 Q2 is used as a baseline number to gauge other numbers. 2020 Q2 is when the pandemic began. 2021 still had some pandemic effects and 2022 Q2 year shows a strong recovery over the past 4 quarters. From a dollar perspective, the City has recovered from where it was and there may still be some lingering growth. Restaurants were one of the key areas that were affected most during the pandemic, as well as gas stations.
In looking at a 5-year trend, numbers fall off during the sheltering quarter 2020 Q2 and then they can see some nice growth in food products, restaurants and markets, transportation, and not as much dramatic declines for miscellaneous. For this quarter, they have been seeing slowing with the County pool down about 9.5%. The jurisdiction share was not down quite as much, and he explained that it is calculated by comparing all county jurisdictions’ sales tax receipts. Lafayette was at pre-pandemic 1.9% and they came down to about 1.4% a year ago and came back up to 1.5% so the City is getting a relatively larger share of the County pool; however, it is still down slightly.
As far as the City’s sales tax future about two quarters back the numbers for 2021 were fairly flat and they had the City growing at about 18% for the immediate prior fiscal year. Going forward, they have the City growing for FY 2022/23 at about 5.3%. Next year, they thought things might slow down a bit coming off of the recovery and use a rate of about 3.5% and it is growing out from there. Since then, they moderated their growth numbers and the final number the City came out with was pretty close to what they thought.
Moving forward, when looking at 2022/23, they are slowing that growth down a bit because of the macro-economic numbers out there in terms of increasing likelihood of recession or some sort of downturn/slowdown as well as the inflation with consumers slowing their purchases related to highpriced goods. The City overall is a bit more insulated from the volatility of a recession because they do not have new car sales, appliances, or large construction community and those larger ticket items where people might tighten their belts on spending, and you would see more fluctuation. They think these numbers are conservative.
Inflation is projected to be similar to last year or an average of 7% over the year, hopefully less. For 2023/24, they think there will be an average of about 4% for inflation so they are still seeing a slowdown here, even though they are not seeing negative numbers.
City Council & Youth Commission Meeting Page 5 of 40 November 14, 2022 Mr. Adams then pointed to a chart and yellow bars which show historical numbers. The grey shows projected numbers and the blue line is where they had the City’s forecast prior to the pandemic happening. They might say they have a check mark recovery here. The City has since come back above where they had them prior to the pandemic. There have been other things like inflation boosting these numbers a little bit so if there is a little bit of recovery to go this still remains to be seen for the City, and they may be a bit conservative on their numbers.
He then presented some assumptions from six months ago and most of this is the same environment.
The virus is still out there, but they think it is being managed but it could change with more restrictions.
Inflation will continue at high levels this year and moderate to more normal levels by the end of 2023.
They are pushing that out a bit because inflation has been stickier over the last few months, so it will last a little longer than what they were hoping for. The Federal Reserve has been increasing rates faster and with higher basis points than they had anticipated so they think that will eventually help cool down the economy.
Supply chain issues seem to be easing a bit especially in the auto market, so they hope to be returning to more normal levels there. In terms of the future, this is something that has been out there in terms of the economy. They are seeing an unusual time for the economy with high inflation, rising interest rates, geo-politics, gas prices have been bouncing around a bit, OPEC has indicated they will restrict the flow of oil to international markets so that might keep prices high. Consumer behavior adjustments to inflation are starting to occur. Initially, inflation had been high, and consumers really had not changed behaviors with the thought being it would be more temporary, but inflation is lasting a little longer than people hoped for. So ultimately, they are waiting for when the new normal will develop and if there is going to be a recession and what a slowdown might look like. The sales tax economy is a little different than the national economy so if they have a fairly mild recession, it will not really impact the City too much. He concluded his presentation and asked for questions from Councilmembers.
Councilmember Candell asked if Mr. Adams had any feedback on cities and their policies on the parklets in terms of how successful the restaurants are versus those that have taken the parklets away.
Mr. Adams said it is hard to get true data on this because there is not a good baseline. They have been talking to the City of Palo Alto about it and it depends on where they are talking in the pandemic and what sort of business restrictions they had indoor versus outdoor and those sorts of things. For them, he thinks Palo Alto was extending their program further in the downtown area. Part of the issue Palo Alto had was they are heavily reliant on a daytime population workforce. This is why they had a hard time of trying to correlate some data to it. But, from what they have heard from their clients is that it was a way of allowing those businesses to scrape through during difficult times during the pandemic.
He thinks some communities feel there is some associated vibrancy coming out of the pandemic without those same business restrictions, but it depends upon the community and what the parklets look like, how close restaurants are to one another, and those sorts of things.
Councilmember Dawson added that the City has used their ARPA funds for incentives for consumers to come to stores and restaurants, so she thinks this has added to those numbers. Also, they have heard directly from their Economic Development Manager Thomas Myers that those have extended vibrancy and people coming to lunch, as well as from residents working from home.
City Council & Youth Commission Meeting Page 6 of 40 November 14, 2022 Mr. Adams said this is a great point because Lafayette is a bedroom community and what happened during the pandemic is less people in central business districts and more people out in areas like Lafayette that have a nice downtown area for people working from home.
Mayor Gerringer opened the public comment period, and there were no speakers. She and Councilmembers thanked Mr. Adams for his presentation.
8. CONSENT CALENDAR
Mayor Gerringer asked if there were public comments or requests to remove an item from the Consent Calendar. Vice Mayor Anduri requested removal of Item A.1.
A. Minutes
2. October 26, 2022
Recommendation: Approve.
B. Resolution 2022-62 Allowing for Video and Teleconference Meetings during the COVID-19 State of Emergency under AB361
Recommendation: Adopt Resolution 2022-62.
C. Resolution 2022-66 Approving and adopting an Amended Conflict of Interest Code Pursuant to the Political Reform Act of 1974
Recommendation: Adopt Resolution 2022-66.
D. Financial Report - 4
th Quarter FY2022
Recommendation: Receive and file.
ACTION: It was M/S/C (Candell/Kwok) to adopt Consent Calendar Item A.2, B, C, and D. Vote: 5-0 (Ayes:
Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
9. OLD BUSINESS
A. Tracy Robinson, Administrative Services Director; Niroop Srivatsa, City Manager Purchase and Sale Agreements for 990 Moraga Road (APN 243-222-023) and 3533 Plaza Way (APN 243-222-019) and condition the future use of the Properties on CEQA compliance pursuant to CEQA Guidelines 15004(b)(2)(A)
Recommendation: Approve the Purchase and Sale Agreements for the McNeil and Campana properties and direct staff to begin the due diligence process.
Administrative Services Director Tracy Robinson said for the last several months the Council has been negotiating the purchase of two properties: one at 990 Moraga Road (Campana property) and one at 3533 Plaza Way (McNeil property). The reason it would be very advantageous to acquire both properties at the same time is that it will allow the City to achieve the vision of the Plaza Way Overlay. This would provide additional public parking to those businesses and new businesses going in, particularly the new Park Theater and there will also be some opportunities to consider other civic uses.
City Council & Youth Commission Meeting Page 7 of 40 November 14, 2022 Staff has engaged with a real estate professional to make offers on those properties and negotiate the details of the sale. Before the Council are two purchase and sale agreements. The Campana property sales price is $3.5 million, and the McNeil property is $3.4 million for a total of $6.9 million. There is money in the City office fund and staff is recommending the General Fund borrow that cash from that fund and combine it with monies from the General Fund just to fund the purchase of those properties.
In the following months, the Council will be having on-going conversations about these properties. The first will be about the uses of these properties which have not yet been defined. The Council wants to ensure it secures those properties and then they will discuss how those properties will be used. The second part is that depending upon uses decided upon there will be other on-going discussions as to how they finance this long-term. At this time, staff is asking the Council to approve both of the purchase and sale agreements so they can move to the next phase which is due diligence of the properties. Once that is completed, the sales and escrows can be completed. If the Council has questions, John Cumbelich of John Cumbelich Real Estate is present and he helped the City negotiate these purchase and sale agreements, and staff is also available to answer questions.
Mayor Gerringer opened the public comment period.
DAVID CLARK said he thinks this is terrific and strongly encouraged the Council to approve this given it is easier if the City owns properties outright. If the City can find money to purchase both properties on the channelized creek that would be even better. He knows it is premature but would encourage the Council to include the pathway or trail along the channelized portion of the creek. There is a piece behind the Madison Park property, the Rain Garden under construction now was designed to accommodate a portion there, and there is an easement behind the Park Theater.
LIBBY HENRY said it has always been her understanding and believes there is a marker on 990 Moraga Road as being a historical landmark. She assumes it means that building will be torn down and it appears the historical status is being ignored. She asked what the plans are to relocate businesses there and thinks that to lose more business with a City project seems counter-productive and cavalier. She also did not think the City had any money to buy any properties.
Vice Mayor Anduri asked where the historical marker is located and said the McNeil property is historic.
Ms. Henry said the marker is located just when entering the small parking lot in front of Campana Music.
GRACE DIXON said she is in full support of the purchases of the two properties, knows it is a small miracle as they are right in the middle of town, and voiced support of David Clark’s comments where she hopes the City can preserve civic uses to encourage walking, biking, and the community.
MAX HENINGER, Inclusive Lafayette, said by borrowing around $5 million from the City offices fund he asked if the Council is considering a shift in policy where they are no longer prioritizing the purchase of a City Hall or at least de-prioritizing it. It would seem like a challenge to not have a quick timeline to pay the money back. Secondly, it sounds like uses will be determined later. He thinks in order for the public to know how they should comment on this item they need an idea about what the Council is thinking for the uses because $5 million is a big decision.
City Council & Youth Commission Meeting Page 8 of 40 November 14, 2022 Inclusive Lafayette needs to think a little more about what their stance would be. If the intention is to eventually use this to develop 100% affordable housing with a non-profit partner it would be a great idea and use of City funds given it is less than one-quarter mile from BART. Alternatively, it could be with a market rate developer and unlock some value capture and be able to put a City Hall at the site if partnering with a commercial developer. If the intention is to use it for 100 surface parking spaces and to preserve existing retail uses the $5 million would be a historic mistake, so he hopes the Council can provide more information about uses.
STELLA WOTHERSPOON voiced support and echoed Mr. Clark and Ms. Dixon’s comments that this is a wonderful opportunity to add some public space the City can use to build community and provide enjoyment to its citizens and visitors. As the Council is considering this, she asked to look at the Plaza Way Overlay District and rules. She asked to think about uses defined there, see if they meet current desires, and also to think about maybe moving the parking in front of Sideboard and retail stores and next to Plaza Park away from that space to reclaim the parking area which is really a driveway for human use via an extension of the green space or park benches and not just for vehicles.
Mayor Gerringer thanked speakers and said this evening the Council will not be discussing all possible civic uses. In terms of historical markers and statuses they are not making any specific decisions on any particular use or outcome on the buildings tonight and asked for the City Manager to comment.
City Manager Srivatsa stated it is her understanding that the McNeil property, although not a landmark of local significance, does have a plaque calling out its historical importance. City records do not show the Campana building is a building of historical significance nor is it landmarked, but she can follow up with the Historical Society to confirm.
Ms. Robinson added that to respond to Ms. Henry, the Campana Building is vacant for 3+ years and the City would not be kicking out any business there. As noted in the agreements, there are some leases in the McNeil property of two businesses and she believes some apartments but, in general, the City will not be doing anything with those right now. Once they figure out the uses or continuing the leases the City has a duty and responsibility to relocate any business and/or residents.
Regarding using the City offices fund, Ms. Robinson said she was careful to use the word “loan”. The City offices fund has built up for more than 25 years. The City currently rents its offices and the Council policy has been that whenever City property is sold, proceeds of the sale go towards building City offices. If the Council decides they are not going to put City offices on the property they would make a decision as to how to pay that money back. Therefore, no major policy shifts have occurred, and discussion will occur over the next several months.
Vice Mayor Anduri reassured the public that there has never been a “cat in the bag” at the Council level regarding the use of these properties. Every discussion will be fully transparent and available to the public and the Council welcomes input.
City Attorney Subramanian added that any condition on the future use at a future public meeting will be subject to CEQA and the City will comply with CEQA at that time.
City Council & Youth Commission Meeting Page 9 of 40 November 14, 2022 ACTION: It was M/S/C (Anduri/Dawson) to approve the Purchase and Sale Agreements for the McNeil and Campana properties, direct staff to begin the due diligence process, and condition the future use of the properties on CEQA compliance pursuant to CEQA guidelines 15004.B.2.A. Vote: 5-0 (Ayes:
Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
10. STAFF REPORTS – None.
11. PUBLIC HEARING
A. Greg Wolff, Planning & Building Director; Renata Robles, Senior Planner; Diana Elrod, Housing Consultant
Housing Element Update & EIR – City of Lafayette 6th Cycle Housing Element and the Environmental Impact Report (EIR) analyzing impacts of growth stemming from the housing plan and housing opportunity sites identified to accommodate the mandated Regional Housing Needs Allocation of 2,114 assigned to Lafayette, plus a buffer, which total approximately 3,000 new housing units between 2023-2031. The draft Housing Element Update can be found at www.planlafayette.org; the draft and final EIR can be found at www.lovelafayette.org/CEQA.
Recommendation: Conduct the public hearing, discuss and direct staff on policy matters regarding the Housing Element Update and EIR, including but not limited to, response to HCD’s letter, opportunity sites (including the BART station parking lots), housing programs, potential information to add to the EIR, and schedule.
Planning and Building Director Greg Wolff said staff is back before the Council for more information and discussion on the City’s 6th Cycle Housing Element update. Staff plans to bring back updates around the Housing Element’s goals, policies and programs which will be informed by direction received this evening. Largely, tonight’s topic relates to opportunity sites and options, as well as some additional information on timing.
Mr. Wolff then provided a quick background on the 6th cycle Housing Element and the process for the City to follow. The City had 499 units in the 5th cycle which will soon end and has exceeded that number in gross but not in each income level or category. Of the sites identified in the inventory and studied in the EIR, a change of choosing one site or another would not necessarily require re-circulation or additional analysis in the EIR.
As previously discussed, the BART parking lots are one of the largest areas that could be developed with housing in the future and BART has published a Work Plan for TOD in 2020 based upon prescribed criteria. They have stated interest in redeveloping their surface parking lots to increase ridership and provide affordable housing. BART also prioritized their work and efforts, staff, and money on stations that are meeting those criteria to the highest degrees. AB 2923 is now State law and that established BART’s internal TOD guidelines as development standards. As of July 1, 2022, those now apply to Lafayette’s BART station parking lots which total about 11 acres.
Pursuant to Council’s direction earlier this year, staff has prepared a TOD Overlay District and zoning and development standards that has been considered by the PC and brought initially to the City Council which is pending and will return if directed.
City Council & Youth Commission Meeting Page 10 of 40 November 14, 2022 Right now, in BART’s TOD Work Plan, BART’s station parking lots are slated for post-2030 redevelopment and BART has indicated to the City that they intend to periodically revisit the prioritization in the Work Plan and that their first and next update will start after January 2023. When the City submitted its Draft Housing Element to HCD in June, the opportunity sites inventory included BART as an opportunity site to meet the City’s RHNA obligations. In speaking with BART regarding the potential for moving up the Work Plan, there are challenges including local opposition to development on the lots, infrastructure barriers, 3 criteria that factor into the ranking and prioritization which includes market readiness, infrastructure, and local support. Infrastructure would include parking and station access, so knowing it would be prohibitive to replacing the parking spaces occupying the site in-kind, utilizing other means for parking would be part of a Station Access Plan that would be part of any redevelopment of the site.
BART noted a concern that the City’s draft overlay zoning has an expiration clause which would revert if AB 2923 sunset or was otherwise no longer in effect. The clause does not show a long-term commitment to housing and to date, there has not been developer interest. The TOD re-evaluation will start after the first of the year which poses a short timeline to make what would need to be very significant moves in order to move the needle for BART. Those would include resources around staffing and the ability to take on a Station Access Plan and provide funding towards the project and infrastructure.
Option 1 was submitted to HCD and HCD requested additional analysis and a body of evidence that supports the City identifying it as an opportunity site. Short of a written letter of interest from BART that they could likely do a project in the next 8 years, it is not entirely clear what HCD would accept as a body of evidence. So, Option 1 would not change downtown densities. It would upzone the BART station parking lots to 75 units per acre, 5 stories, and a FAR of 3. This scenario would not include the DeSilva South site. HCD did not clearly reject BART as an opportunity site but they were also accepting of it, and they asked for additional analysis and evidence.
Option 2 is the Downtown-Only option which was studied as one of the options in the EIR. The EIR analyzed a density of up to 115 units per acre in the downtown which is much greater than shown in the staff report. With the identification of the scenarios studied in the EIR preceded GPAC’s and the community’s work to identify opportunity sites and that work was fruitful. Thus, the density that would need to be achieved has been re-calculated. If the density were to be 58 units per acre, the Council can see what it would do to be able to produce units to meet the City’s RHNA obligation, and there would be a surplus. In addition to the 2,114 units, the State requires or highly encourages a surplus so as not violate the no net loss provisions of State law if one or more of the sites were to be developed other than residential or if that development did not produce the income mix initially projected.
He then displayed the growth geometries, but essentially the downtown in areas 1-6 in this scenario would be zoned at 58 units per acre and Area 13 south of the boulevard in the center of town would remain at 35 units per acre.
Option 3 would remove BART as an opportunity site and would instead add the DeSilva South property and upzone that to 30 to 35 units per acre in that vicinity to accommodate some affordable and BMR units. Below that, the City would need to project 100% above moderate, and it would not help with what are the more challenging income levels of very low, low and to some degree moderate. This would also increase areas 1-6 to 58 units per acre and would keep Area 13 at 35 units per acre.
City Council & Youth Commission Meeting Page 11 of 40 November 14, 2022 The PC considered the Housing Element and opportunity sites before making its recommendation to the Council, which included parsing or splitting the area between Mt. Diablo Boulevard and the freeway into a north and south section. They previously discussed the topographic realities of the freeway sitting higher and stepping down as it comes down towards Mt. Diablo Boulevard and then abuts single-family to the south. A recent project just south of the library illustrated the adjacencies and challenges which was the Madison Park project of 3 and 4 stories with neighborhoods to the south largely 1 and 2 stories.
So, some impacts would stem from taller development adjacent to the north.
Recognizing the topographic changes, even the General Plan allows for increased heights between Mt.
Diablo Boulevard and the freeway. Recognizing that, the PC recommended allowing greater density in those heights to the north and splitting the block whereby the northern portion could accommodate greater density, along the Boulevard would stay at 35 units per acre, and the same to the south. The summary table on screen speaks to the entirety of Areas 1, 3 and 5 but this proposal would split that into 1 north and south, 3 north and south and 5 north and south.
Mr. Wolff concluded and invited Senior Planner Renata Robles and Housing Consultant Diana Elrod to add to his presentation, speak to the density in Option 4 for 1, 3 and 5 north, and staff asks that the Council discuss, request any additional information on the options, as well as any additional analyses or information the Council would like staff to undertake with the consultant with respect to the EIR.
Senior Planner Renata Robles added that with Option 4 in order to have a buffer sufficient for meeting their RHNA allocation, the areas approximate to the highway in the split area model requires 125 units per acre just because there are so few parcels in the orange area that the yield is substantial in nature.
Mayor Gerringer thanked staff for the presentation and summary. She asked for clarifying questions of staff. Tonight, the Council is looking at the opportunity sites and at their next November 28th meeting, they would have the response and discussion around the other elements related to the programs and policies in the HCD letter and in the Draft Housing Element and changes they would make there.
Vice Mayor Anduri said his first question relates to Option 2 which takes out BART from the opportunity sites and leaves out DeSilva South, so they are taking out any sites in a high fire severity zone. He asked what does that do to the City’s further actions on the EIR, recognizing that at a prior meeting the Council had a 4-1 vote to move forward and before the next meeting they had the Attorney General’s (AG’s) input. If they were to take those out, he asked what it means for the EIR process.
Mr. Wolff said as background, the DEIR was published in the spring, FEIR this fall, the PC and Council considered the certification. The Council continued the matter to October 11th following the holiday, and on Monday, October 10th, the AG Bonta issued guidance on wildfire and evacuation, so staff wanted to review and assess that, and recommended continuance on October 11th. The AG’s guidance was unanticipated, but it was heartening to him because of the priorities that were laid out in AG Bonta’s letter have been implemented in advance of that guidance coming out.
Many of the mitigations identified in the guidance the City has already embraced and they are not taking that approach. One example is to not promote or plan for significant new single-family low density residential out in wildfire prone areas that have limited ingress/egress that would be challenging to get to and fight a fire. The guidance suggests not having low density growth in high fire hazard severity zones but rather to concentrate it and cluster it and promote higher density development which is what the City’s plan does.
City Council & Youth Commission Meeting Page 12 of 40 November 14, 2022 The guidance suggests putting new development near adequate emergency egress and facilities or closer to fire stations, near evacuation routes, and this is what the Housing Element and opportunity sites do. Part of the analysis recommendations with the modeling the City has done with respect to evacuation was an example—not to presume an evacuation can happen where the zones are rolled, and one zone called after the next. They should presume everyone must evacuate at the same time. This is an assumption they already embraced and built into their modeling. So, Lafayette was already ahead of the game on that. There is direction and at least the suggestion not to put new housing in very high fire severity zones so the BART sites are perplexing because it is immediately adjacent to transit, the freeway, is a parking lot in a mapped high fire severity zone. If the City were to remove that and the DeSilva site which are next to a 4-lane roadway that has bi-directional access, close to a freeway, on and off ramp, then he thinks it would simplify the additional language staff would add to the EIR around how the City met that guidance. If they were to include either BART or DeSilva, he thinks it would potentially require additional work in that regard.
Vice Mayor Anduri said additional time would put them in the builders’ remedy. Mr. Wolff agreed.
Vice Mayor Anduri said if they take out BART as proposed in Options 2 and 4 he asked if staff was saying they can go forward with the EIR.
Mr. Wolff said in his view, yes, because the City’s analysis is adequate but there is always a chance of a lawsuit being filed and the guidance is new, so he does not know if it has been probed and tested.
Vice Mayor Anduri said if they were to remove the BART opportunity sites and therefore change the project and not make CEQA findings with respect to significance, with respect to Happy Valley and the Glen as an example, and then were to approve the EIR and adopt the Housing Element update without the BART properties, if they wanted to proceed with BART at some point with the housing overlay he asked if it is correct the City would need to have an update to the EIR in order to adopt the BART TOD Overlay.
Mr. Wolff said if the Council directs the project description in the EIR and Housing Element does not include any sites in high fire severity zones, which includes BART, any future action to adopt zoning for the BART parking lots is subject to CEQA and would need to be adequately analyzed, so an addendum or other EIR document would need to be done for that.
Councilmember Candell asked for further clarification on this, stating if they go through and do not put the BART lots into the City’s Housing Element and approves the EIR as it stands the EIR still has those sites developed at 75 units per acre. The City is still exposed whether or not they put in the BART sites or not because it is there. She does not see the legal challenged as changed because it has already been upzoned.
Mr. Wolff said he thinks there is always the opportunity for any party to file suit if they choose to do so.
If the Council directs staff to revise the project description to exclude BART and other sites in the very high fire severity zones it would not allocate 75 units per acre to BART and their Housing Element and RHNA would have zero on there.
City Council & Youth Commission Meeting Page 13 of 40 November 14, 2022 Councilmember Candell said she understands that but asked if the City is still exposed because they are saying it is not significant and unavoidable, and it is already upzoned. The State upzoned this on the City so CEQA must be done and the City did it. Even though they did not include it in the Housing Element it seems like the City is still very exposed because they are saying there is no hazard. Nothing changes whether they put BART in the Housing Element or not.
Mr. Wolff said he thinks the thing that changes is what the City is contemplating as a project and CEQA is about analyzing a project impact on the environment. If the project does not include BART or other sites in the high fire hazard severity zone, that is a pretty clear statement. The Council directed that the EIR analyze both a distributed scenario which does include high fire sites and a Downtown-Only scenario which does not. So, the Council would be going forward with the Downtown-Only if they decide.
Councilmember Candell asked if they should pull the other part out.
Sarah Owsowitz, BBK Attorney, said in terms of exposure to litigation the City can only be challenged for what it approves. So, if the Council does not approve including BART or the DeSilva South property in the Housing Element as an opportunity site, they have not included it. State law might have upzoned it, but the Council will not have taken any action regarding those properties and the City cannot be challenged for something it did not do.
Councilmember Candell said, however, they created an overlay district and asked if that matters.
City Attorney Subramanian said the City has not adopted that and she thinks that is what is being referred to. What is being proposed is to remove them from the Housing Element opportunity sites, but should there be a future adoption of the overlay district the City would revisit the Housing Element EIR in order to add additional information at that time.
Councilmember Candell asked if they will then pull the possible overlay from consideration. Ms.
Owsowitz said this is her understanding of Mr. Wolff’s summary of the options; Options 2 and 4 to remove the high fire hazard severity zone sites entirely from the project that is described as a distributed site project in the EIR. The analysis all remains but the actual project would not include that.
Mr. Wolff said thus, if the Council decides to move forward with the TOD zoning, it could not rely on the certified EIR because it was taken out.
Councilmember Candell said in flipping the argument if they keep them in she asked could the Council modify the EIR, include AG Bonta’s advice, and the Council as the lead agency could approve it by the deadline. She said it is a choice open to the Council.
Mr. Wolff said it is absolutely a choice for the Council to direct further work to be done on the EIR and at the outcome of that work the Council could adopt a Statement of Overriding Considerations that has to balance the potential environmental impacts around the project and the benefit of undertaking the project. So, this is feasible. The timing of that would not meet HCD’s deadline.
Councilmember Candell said she had asked the City Attorney who said the Council could and it is not impossible, and she asked for clarify on that.
City Council & Youth Commission Meeting Page 14 of 40 November 14, 2022 City Attorney Subramanian emphasized that staff would need to do additional work and then that would delay the timing such that they would not meet the January 31 deadline.
Councilmember Candell said she knows there is some way to do CEQA but the City as a lead agency can choose not to do that. They could choose to put those changes in and approve it in time and not redistribute.
City Attorney Subramanian said it is the Council’s decision if they would like to do that. Whether staff could get it done by January 31st and comply with all of the rules and regulations that need to be complied with is something that would be challenging.
Councilmember Dawson asked if Councilmember Candell is asking if the Council can adjust the EIR by adding in AG Bonta’s recommendations and then come up with the research behind that to include in the EIR within that timeframe. Councilmember Candell said it is not research. It is just what a community thinks it should be which would be one hearing and the Council could adopt it.
Councilmember Dawson said in her opinion, it seems like the analysis is professionally based.
Councilmember Candell noted that AG Bonta’s advice did not say that. They said it was based on community things.
Mayor Gerringer said her clarifying question was covered by Ms. Subramanian, but her understanding is that if they do make changes and move forward and direct staff to do additional work with consultants and add staff time, it is more than one hearing. It would be an exception if they did not re-circulate public comments and bring that period back. So, she asked if what Councilmember Candell was saying is she believes they could do that and bypass the re-circulation and public comment periods of 45 to 90 days. Councilmember Candell confirmed.
Mayor Gerringer said this is somewhat news to her and asked what exposure the City might have if they make that decision. She thinks there are a number of things relative to the BART site that are not a specific question and concerns. She asked if the Council could direct staff to make changes to the EIR and asked what sort of exposure that creates for the City.
Ms. Owsowitz said the Council can absolutely modify the EIR. Depending on the modifications the Council chooses staff to make, CEQA has different procedures that come with those changes. Some changes require very few moments of delay. Some proposed revisions would require considerable procedural delay under CEQA.
Councilmember Kwok said the Council met three weeks ago and she asked staff what meetings has staff had or correspondence with HCD or BART that have been substantive in those three weeks that have influenced decisions or played a part in influencing what is being presented today.
City Council & Youth Commission Meeting Page 15 of 40 November 14, 2022 Mr. Wolff said staff met with BART a few times with the TOD Program Coordinator and HCD separately.
No new information was provided; however, what staff had shared recently was reinforced by BART regarding their TOD Work Plan, timing regarding revisiting that and reprioritizing that, the criteria they use and have established for evaluating the TOD Work Plan and stations for prioritization, and the lift that the City would need to do regarding infrastructure and community support. It is very important to BART for the community that they will spend a tremendous amount of effort working on a TOD project with to have local support and to have a commitment to housing and a commitment in the form of resources. Anecdotally, BART has been working with the City of Berkeley for a couple of years now on the North Berkeley and Ashby BART stations. Berkeley committed in the realm of $50 million for those projects, has done the Station Access plans, but Lafayette is not there yet, and he does not think they can in the timeframe they are talking about.
He said they had an opportunity to ask their HCD reviewer some follow-up questions on 4 or 5 comments in the HCD letter and obtain clarification as to what they were trying to get at and how might the City respond. He deferred to Ms. Elrod to speak to that as well, but he did not think anything illuminating came out of that, but they did receive some clarity. Based upon those meetings as to what would need to happen in order to move up in BART’s Work Plan, it further convinced HCD that this is an acceptable opportunity site in their view. It is a surface parking lot. The owner has expressed interest in developing housing, and it comes down to resources. If the State wants to see TOD zoning and housing built they have already acted in the form of AB 2923. What is lacking is the funding and resources to make it happen sooner than later.
Councilmember Kwok asked if staff has a sense that HCD is saying they need to get BART to agree to move the City up in the TOD plan or otherwise they cannot include them. He asked if that was mandatory in order for BART to be included in the Housing Element update.
Mr. Wolff said they have not said that explicitly. That is his read, but he could be wrong. HCD may be willing to accept other forms of analysis and evidence but he thinks it remains to be seen. The City will continue to make an argument and best case to demonstrate what he thinks is obvious to staff about it clearly being an opportunity site of a surface parking lot next to transit and a supportive owner. He thinks it comes down to resources and the timing of being able to do a project there. He thinks the State sees private development in a different fashion; that there can be a faster timeline associated with doing projects under private control and perhaps longer lead times associated with public entities and funding. BART or the City would need to go out with an RFP, and funding for affordable housing projects takes time.
BREAK
Mayor Gerringer called for a break and thereafter reconvened the meeting at 8:45 p.m.
Mayor Gerringer opened the public hearing and asked for public speakers.
City Council & Youth Commission Meeting Page 16 of 40 November 14, 2022 MATT PEASE, Lafayette Chamber of Commerce Boardmember, said it is important for the City to be clear as possible and make every effort to make owners and developers build housing while at the same time support the commercial and retail businesses which support City government through sales tax and other levies. They strongly support BART developing housing on the existing parking lots, as it is the best location for high density housing. However, they wanted to offer a set of alternatives in case HCD will not allow the City to use the BART lots but still keep the unique characteristics of the downtown. They do not believe planning for almost all of the housing required to be located downtown is the best longterm interest of the City and its residents. Planning Option 2 of 58 units per acre downtown that staff is recommending with the density bonuses allowed by the State will result in buildings downtown being 5- 7 stories tall.
The Chamber would like to support the following alternative if BART is not accepted by HCD, and all of these need to be done together to get to the right number. First, they ask to investigate housing development at DeSilva South at 35 units per acre on 11 acres. This site was originally recommended by GPAC. It is contiguous to existing housing, is near freeway access, the property owner is interested in development, and potentially the City could negotiate with the owner to develop recreational facilities.
In addition, they propose increasing density of sites around Diamond K, Desco Plaza and other adjacent buildings to 40 units per acre. Without developing the BART parking lots, the City must increase density in other areas. This area is currently made up of office buildings and low-rise commercial businesses, is across the street from the Brandt, so the area is already transforming to a more housing-centric area.
The Chamber also suggests increasing density in selected sites on the north side and east end of Mt.
Diablo and in the downtown core also on the north side to 40 units per acre. This is not ideal, but it is better to develop the north side of Mt. Diablo Boulevard near the freeway than the south side. They would encourage the Council to force mixed use development in this area so they can continue to have some retail and commercial environment. They understand considering these alternatives will delay certifying the Housing Element and may be subject to builder’s remedy for a short period of time; however, given the current economic and interest rate environment they believe there is a dampening of demand for housing for a short period of time and they can use that window to see if these alternatives make sense. They hope these alternatives receive due consideration if the BART parking lots are not accepted by the State.
ALON YU, said he has lived in the Glen for over 30 years and is concerned and frankly a bit dismayed that the Council does not consider the Happy Valley Glen which has been designated a severe wildfire hazard severity zone to be significant, especially since Briones borders their neighborhood on the north. With tall Pine, Oak, and Redwood trees throughout the area, any wind-driven wildfire would result in a catastrophe, devastating not only the Glen but potentially other parts of Lafayette, as well. He is sure the Council is aware of the recent series of devastating wildfires in Northern California which destroyed thousands of homes, tons of communities and many lives. The fire spread so quickly that residents had to evacuate through clogged roads with fire surrounding them, many in the middle of the night.
City Council & Youth Commission Meeting Page 17 of 40 November 14, 2022 His neighbor, Donn Walket’s home caught fire several years ago, and Con Fire responded with 5 pieces of equipment and a Cal Fire helicopter. He was told the fire got into the numerous trees throughout the neighborhood and would quickly spread to nearby homes if there was any wind. Just two weeks ago, his neighbor’s home caught fire at 1:00 a.m. Seven fire units responded swapping the entire street.
Fortunately, there was no wind. Furthermore, he does not believe it has been mentioned before, but if multi-story, multi-family housing is built on the Cross property by BART, the driveway and entrance to that building’s garage would be in the back off of North Thompson Road and not on Deer Hill Road, thereby increasing in the hundreds more people trying to evacuate the neighborhood on a narrow, twolane road, significantly exacerbating an already limited exit route.
When he raised this issue with a Councilmember before, he was told that no designs have been submitted yet for any development and that his concerns were premature. He called attention to three recent large home developments on Mt. Diablo Boulevard: The one at Brown, the one at Second Street, and the large complex under construction at Diamond K. None have garages fronting on the main thoroughfare but up on the side streets. They have been assured by the Fire Chief that he could quickly evacuate a neighborhood when necessary, but he questioned if he would have sufficient advanced notice, enough time, equipment, and personnel to do so. Therefore, he respectfully but strongly urged the Council not to approve the EIR until the many significant questions can be reviewed. This is not a NIMBY or political issue but a life safety one.
ANDI BROWN said she has always had a pro-growth mindset when it comes to thinking about the City.
For context, she is a life-long Lamorinda resident as well as the daughter of a real estate developer, yet even for her, reading the staff recommendation to blanket upzone all six downtown sections felt like a punch to the gut. It felt like the past two years of the City’s responsible civic engagement administered and backed by staff, and supported, debated, and advised by Council and the PC was a waste. But, never has she been more impressed with the City of Lafayette over the past two years observing the educated, democratic and compromise-oriented process that was put in place to handle this massive uplift of units required by RHNA.
The City was handed something many in the community felt was severe and unjust, given the City’s size, topography and tangible track record from fostering the housing environment. Yet, the City’s process remained organized, highly transparent and produced a plan that made sense to many. It has been especially hard to watch HCD continuously and opaquely move its goalpost, rendering the BART lots potentially too risky of a move, given the threat of builders’ remedy. So, if it is deemed that deadlines do not allow a push to keep BART and the City transitions to downtown-only upzoning, she implored the Council to please not treat all six areas the same. Sections 1, 3 and 5 and in many ways, 4 are different.
They are better equipped to handle upzoning as they do not abut lower elevation, single-family home neighborhoods. Section 6 does and includes Golden Gate Way and all of it backs up to an entire neighborhood. Golden Gate Way is clearly a transition zone where there needs to be differentiation to bring down the scale from other downtown zones. To be clear, it is not redevelopment an opportunity site location she is raising concern over. She thinks Golden Gate Way is a wonderful location for redevelopment opportunities. It is the upzoning from 35 to 58 units per acre, knowing that the density bonus, building height, and setback waivers that this section of town will be significantly impacted above all other parts of town.
City Council & Youth Commission Meeting Page 18 of 40 November 14, 2022 A sheer wall of a building that is 58 to 80 units per acre building feels a lot different when it abuts your home and your yard than if it abuts higher elevations, hillsides, and commercial and other multi-family buildings. She remembered at the beginning of this process City staff explained how good quality planning, zones, and tiers and transition zones need attention to which parts of the City can better absorb density while maintaining neighborhood context. With all competing interests, rendering Plan A potentially infeasible, the recommendation pays no heed to sound City planning practices of tiered, wedding cake style zoning that they discussed and valued so many times throughout the dialogue in GPAC, the PC and City Council processes. She does not believe the neighborhood of Section 6 needs to be sacrificed to comply with HCD.
WILL LOVITT, said he has worked on CEQA and on EIRs for 15 years while he was on the PC. He has been in recovery ever since and this is a relapse. He wanted to talk a bit about the EIR briefly. It appears that the Council might be reviewing the EIR and he wanted to talk about the not so significant designation north of the BART station. It was at least partially if not fully supported by testimony that the designation would not change the evacuation plan and that any proposed projects would have project EIRs.
The problem in his view is that there is no evacuation plan. It is one way in and one way out and that cannot be changed. It is not a plan but a choke point. This plan cannot ever be changed no matter what happens here, and because they do not know where fires may start, many residents consider the current estimate of the 30-minute evacuation period is already problematic. The same goes for project EIRs. New projects cannot change an evacuation plan that simply cannot be changed. If this area remains in the draft, he asked that the Council address this in their review.
LIBBY HENRY said she sent a letter earlier and hoped the Council read it. She will try and summarize a couple of things reflective of things the previous speaker of Happy Valley Glen and Andi Brown just said.
A couple of things that do not seem to be part of the conversation are that the buffer HCD requires is 10% and the buffer presented is over 40%. So, she said decreasing the buffer would eliminate a lot of the angst about opportunity sites. The other part of that is there seems to be an all-or-nothing thing with the BART parking lots. She asked why it cannot be a compromise of using the farthest parking lot at a lower density than 75 units per acre. It seems that since the AG’s report came out after the City’s EIR was done and sent back by HCD, that would give the City good grounds to go back to the AG and to HCD and request more time to get the job done in this arbitrary January 31st deadline. This report did not come out until after all of that so to expect people to just adhere to a deadline that is not reasonable in the first place and arbitrary in the second place. It would be appropriate and reasonable for the City to approach the AG and tell him that the report came out and ask for more time.
She also recommended asking for assistance from the AG’s office and from HCD about the City particulars, given 46% of the City is in a high fire severity zone. That alone should be a reason to reduce RHNA numbers in the first place.
STELLA WOTHERSPOON said she perceives a double standard is being applied where BART staffing and ability to develop parcels is a concern and she asked why not the same for private landowners. They have no way of understanding their ability or willingness to develop the parcels that are in the opportunity sites inventory. So, it does not make sense why HCD would say “no” on BART and “yes” on everything else.
City Council & Youth Commission Meeting Page 19 of 40 November 14, 2022 She thinks there is merit in one of the suggestions she saw from Eliot Hudson with respect to making it known on the administrative record that there is basically merit to including BART. There is an argument that MTC/ABAG used the site as a public land in considering the allocation when MTC/ABAG allocated RHNA numbers based on the public land strategy. It did that without any concern for the readiness of the developer that owned the land and for development.
Lastly regarding consideration of high fire hazard severity zones, she cares a lot about that, and she has been speaking to the Council numerous times about where are the new maps. She fully appreciates wanting to make a plan here within respect to what is currently known as a very high fire hazard severity zone, but the designations are from 2007 and a lot has changed, and Cal Fire has acknowledged this.
They have taken years now to produce a new set of maps using new fire science. They were supposed to be available in late 2000, then 2021, and the last she heard is they are coming with the State responsibility areas in 2022 and local responsibility areas which is the City’s interest in 2023. So, they are exactly in the position she feared where they are trying to identify places to potentially increase density where people live in potentially hazardous zones and they do not know what they area. She lastly echoed comments from the Chamber of Commerce Boardmember.
KEVIN BURKE thanked staff for their report and said he grew up in Alamo and many of his friends and family cannot afford to live in this area any longer and have moved. His dad came to help him with childcare and this is an option not available to many of his friends because they live in Nebraska, Minneapolis or Texas and their friends are not here which is ashamed. He thinks Option 1 is a bad idea.
He knows staff said the lots are vacant, but they have solar panels on them. The contract with Solar City will cost about $2 million to break. Plus, BART will have higher energy costs the City will be on the hook for. So, the City is already “in the hole” $2 to $3 million before it even gets started trying to develop that property.
BART also said they want to see local support. The Council had 10 letters in the packet from extremely active political residents, including one who is currently suing the City opposing new development at BART, and he would expect those people to continue to be involved and BART will read those letters too and will say the same thing—that there is not local support for development at BART. Some people were complaining about double standards, but he would say the City has itself to blame. BART prioritized stations in its Work Plan based on local interest which did not exist at the time of putting the plan together, and he would argue it still does not exist. BART chose to put solar panels on Lafayette’s parking lot and not any of the other lots in its system because it did not think there was local support for redeveloping those lots at higher densities. So, to turn around now and complain about BART is a bit rich, as the City had the opportunity.
He also said the Council is kind of sleeping on the fact that they are leaving the downtown densities at 35 units per acre and 35 feet of height which is not enough to support turnover of the parcels in the sites inventory, especially with at least 1.2 parking spaces per apartment. At those heights and density, developers will need to dig underground to fit parking which will increase the cost of development by a lot and it will make smaller sites a challenge. He submitted a letter expressing concern about many of the sites. If they are going to leave the densities the same, all of their comments in the letter will still apply. He thinks the City needs to look at higher densities there. Option 4 is also very bad. It is putting all low-income housing right next to the freeway which is very bad from a fair housing perspective, and the City will be dinged for that too. The good news is staff put together an option close to what the Council is looking for which is Option 2 in March of next year. He thinks with some small tweaks that will get the City there and he would encourage pursuit of that instead of something that will be rejected.
City Council & Youth Commission Meeting Page 20 of 40 November 14, 2022 PATTY BATTERSBY said whether or not BART is included in the Housing Element, the EIR must be amended to accurately reflect the high fire severity zones. Neighbors are very concerned about that in the Happy Valley and Glen. The Council can absolutely modify the EIR and again, she emphasized its importance. Her second point not made in her letter is she had the opportunity to speak to a third CEQA attorney and he wrote the book on CEQA. He commented that he has reviewed Scott Sommer’s letter submitted and he said it was absolutely right on. She thoroughly supports Eliot Hudson’s letter that was presented to the Council, particularly when it comes to RHNA allocation if BART is removed, and thinks they have some wonderful resources with Mr. Hudson, Mr. Elliott, Mr. Sommer, Mr. Lavoie and she urged staff and the Council to utilize those resources. Lastly, they provided a petition for 75 signatures and at some point she hopes to receive a response in terms of whether it is an acceptable request or not.
MAX HENINGER said hats off to staff for delivering an informative report on the remaining options for the City at this point. Staff did a great job outlining the challenges to Option 1; the BART sites. They heard from a representative from East Bay for Everyone earlier that there are some additional constraints around solar panels where HCD will want to see how the City will financially support BART to be made whole to remove the panels. They know HCD is aware of these constraints as well. At this point, he thinks they no longer have the luxury of time. Submitting Option A to HCD at this point and relying on the BART sites seems very unlikely it will be approved. He would not vote for Option 1 for BART which is a vote for the builder’s remedy whether they want it to be or not. But, the good news is staff has presented two solid alternative options; Options 2 and 3 where they could upzone downtown and/or include DeSilva South, as well. Inclusive Lafayette is looking at those two options closely and they will deliver some thoughts about those in the next couple of weeks. He thinks what would be helpful is that if Council could give direction to staff that they would like them to proceed in the direction of Option 2 or 3 because the longer they try to hang their hat on BART the tougher it will be to have a plan submitted prior to the January 31st deadline.
Vice Mayor Anduri asked Mr. Henninger to explain why he does not include Option 4 as a possibility.
Mr. Henninger said they need to look at it a bit more. He thinks Mr. Burke’s comment about the AFFH implications of Option 4 holds some water with them. He also thinks there is more of an opportunity right along the Mt. Diablo Boulevard, on mobility there, some protected bike parking lanes that could be included, so he thinks that would be a better direction for the City.
MICHAEL GRIFFITHS said they had resident input on this and related topics at GPAC for the last 18 months. Contrary to what a non-resident said where he thought there was very little local interest or input, there is a large base of expertise available that has volunteered in the past and who continue to make themselves available. For example, Eliot Hudson has some good ideas, given the ill-defined situation visa vi BART where it was arbitrarily included by HCD even though BART itself had no interest in developing it.
With regard to the various sites, one thing to consider is when going to 125 units per acre if the City were to adopt the idea of putting high rise buildings next to Hwy 24 to the north of Mt. Diablo, the fire service would have challenges from the fact it only has 35 foot ability in terms of its reach. So, anything over 3 stories is out of reach.
City Council & Youth Commission Meeting Page 21 of 40 November 14, 2022 Similarly, even though there were MERF filters referenced, in the Terraces, there was a comment that people should not go outside for more than 2 hours and should not open their windows and that is because of the significant pollution that comes from the freeway. It applies to virtually all the sites.
Therefore, an EIR is not simply delineated because it is BART versus the other sites. The City still must do a more complete job on the EIR, so this should be considered as well. Lastly, many resources are available. Residents want this to be successful for the City as much as anybody. So, in that regard, he encouraged the Council that if it is challenged for resources to adopt some of those pro bono resources staff can still oversee to make sure they are “poisoning the pot.” SHERYL MCDONALD said Andi Brown talked about the south side of the Boulevard in Area 6 being affected. She added that Area 5 which is Carol Lane needs to be protected. That whole area on the south side is one story below the boulevard so any elevation added with a density bonus would increase it by one story. She thinks what the Chamber Boardmember talked about is very relevant. They are in charge of businesses, and the downtown area should be listened to. She is concerned about housing by right take away the commercial district throughout the town. She thinks the new law adds rights in the core area should be looked at which is new, and she was not sure that has been applied in the past.
If there is any way to put housing at BART, while there are many reasons not to do that, she thinks there is a way to get it done in a timely manner to make it work, especially if the pro bono help offered is used. And, if it is not being decided tonight, she would like the Council to request Plan B be added to the list and brought back to the Council as an official plan just because they are talking to businesses.
DeSilva South should also be included as well if BART is not going to be what the City works with. For her, BART is first and then some compromise. She still likes the idea of the Chamber plan which seems to be a compromise from GPAC and the PC which makes it at least feel that all of the work done in the past is relevant. She asked that the Chamber plan be official, asked to protect the south side of the Boulevard on the east end which is an entire story below, and to put the development on the northern side of the Boulevard like the PC suggested, and work with the EIR and make Happy Valley Glen neighbors happy.
GRACE DIXON said she would like to encourage the pursuit of the BART lots as number one, and secondarily the Chamber plan. She feels as if the BART lots since they are upzoned by State Law this is something the City needs to do anyway and then have a fully fleshed out plan; to create an evacuation route and standard and to work with BART for a transit access plan. Even though the City did not want this or ask for it, housing does need to happen, and BART lots are upzoned, so she thinks this is an opportunity for the City to pursue the safety and reduce fatalities with bike and pedestrians.
DAVID CLARK said he had to step away and apologized if his comments were already stated. With respect to the builder’s remedy and the timing of that, he read an article that the builder’s remedy does not take effect at 12:01 on February 1st, but there are ways to slow it down. He read that those trying to pursue the builder’s remedy are subject to CEQA. How enforcing that comes about he was unsure, but he did read that. So, if part of the fear of moving forward with the BART option is that if they cannot get everything in on time, they open themselves to the builder’s remedy, it might not be immediate.
SHERRIN FARLEY asked if HCD reject the City’s proposal to develop BART as housing, stating it is her understanding that the vocal locals are Happy Valley Glen and the letters she has read that they have sent to the Council have not said they do not want BART developed because AB 2923 says BART can be developed. They really want the EIR to say that this is a high fire hazard severity zone, and she asked if this is correct.
City Council & Youth Commission Meeting Page 22 of 40 November 14, 2022 Tonight, she heard Mr. Wolff state that the AG said the City should not encourage single-family home development in high fire-risk areas and rather encourage high density housing in high fire-risk areas, which is backwards. She supports the Lafayette Chamber’s suggested options, supports what Andi Brown and Sheryl MacDonald had to say about Areas 6 and 5, and thinks that DeSilva South should be developed if the City does not move forward with BART.
ROBERT LAVOIE said he does not appreciate people from out of town how to run their town, commented that the downtown is already zoned at 35 units per acre with 52 units per acre with bonus densities, said they know HCD will not give credit for over 100% yield, but there is no reason they should go below that because every project seen is coming in over 100%. For example, there is one not even on their site inventory at 1001 Oak Hill Road is coming in at 128% density, so he thinks the Council needs to reconsider that, look at the yields, and 90 to 95 is fair game. Secondly, anything over a 15% buffer is excessive, which is extra housing the City does not need to plan for. It is likely they will get more than the market rate units because of how much is zoned. Even though they have picked sites, developers will have their eyes on others so there will be a lot of development not planned for.
They have not even talked about the ADU count, but Yorba Linda got 400 and they were running about the same rate as Lafayette and they have more valuable real estate, so this is another option. He recommended adding any sites like the Oak Hill Road and anything else that is commercial that is legal to be developed so he asked to look at those downtown sites before increasing zoning that is already at 52 units per acre. He supports Mr. Hudson’s letter which should be carefully read regarding preserving our options in terms of if HCD does not allow the City to use BART, and then they should be giving credit for the BART units that were added to their basic density. He did a study of cities and their housing allowances and he came out to about 900 units if they used everybody’s ratio on Lafayette’s population and on their housing units. So, they got an extra 900 units because of BART and if they will not allow the City to develop it, they should get credit for that. Lastly, BART is like any other property owner. The City does not know if they will actually develop it, but they should be including it. It is desirable, close to transit, and the City should fully respond to HCD’s comments for the record, make necessary changes but keep BART in, and the Council should approve the Housing Element as being in substantial compliance.
Mayor Gerringer closed the public comment period, and she returned to the Council for discussion and response to questions of speakers. She asked staff to address Ms. Farley’s questions about HCD rejecting the City’s proposal to develop BART and that the AG’s letter said not to develop single-family homes in high fire zones.
Mr. Wolff said HCD has neither formally rejected nor formally accepted the BART sites as an opportunity site. They have asked for additional evidence, analysis, and justification to include BART. So, no decision has been made. With respect to AG Bonta’s guidance, he is reading from page 7 which states, “Project density: Project density influences how likely a fire is to start or spread and how likely it is that the development and its occupants will be in danger when a fire starts. Fire spread and structure loss is more likely to occur in low to intermediate density developments. This is because there are more people present to ignite a fire as compared to undeveloped land, and development is not concentrated enough as compared to high density developments to disrupt fire spread by removing or substantially fragmenting wildland vegetation. Isolated clusters of developments in low housing density means that homes are embedded within and more exposed to a matrix of wildland vegetation. Moreover, firefighters may have difficulty accessing more remote and disconnected developments.” City Council & Youth Commission Meeting Page 23 of 40 November 14, 2022 Mayor Gerringer referred to air quality and asked if this was something studied in the EIR in scenarios, as one of the speakers thought the City did not study that.
Mr. Wolff said air quality was analyzed in the EIR for both scenarios. The comment is noted and acknowledged that AFFH would essentially not be served by placing all of the lower income units in a more environmentally impacted area next to industry; however, this is not the case. The case is that they are putting all multi-family in the downtown and stepping density as it goes from the freeway to the boulevard to single-family. So, it is not that all low-income units would be pushed up against the freeway. They would be distributed throughout the downtown. However, all of the affordable and market rate density would be stepped according to the topography.
Councilmember Candell said she agrees with Sherrin Farley that the opposition to BART from the Glen has not been such as to not build there but to keep residents there safe. She thinks this is a fair thing to ask. It is not opposition but that they have not done their job yet with the EIR. To her, she is not done with BART yet and thinks there is a path they can take where they can get it all done, get a certified EIR by the end of January and maybe they do not re-circulate it, but the City as a lead agency can choose not to re-circulate it. She thinks they can try again.
The City was given the extra units because of BART. It is already upzoned. Every state and regional planning agency says to build there, and she does not see the opposition to the project other than when it is built to make it safe. She is willing to try this and go to the other options if they must, but she does not think the Council has exhausted it yet. She thinks they can stay the course, vet this out, do their best, and see if it will fly.
Vice Mayor Anduri said he is confident there are voices in the Glen who do not want the City to build at BART. He is also quite confident that everyone wants to be safe and this is what the Council wants too.
What he would like to do with Councilmember Candell’s suggestion is to see if there is a path, discuss it, and see if it works. In his analysis and gathering information from different elements, he is not sure there is a path and he is concerned that if they go down that path and they come to sometime beyond January when it is found not to work out either because the City is sued, because of the EIR action they took, or because HCD says they are rejecting the Housing Element, then they are subject to the builder’s remedy and will be for some time. In fairness to that approach, he has been arguing all along that it is just unfair what is being done and he prepared a chart since the last meeting that shows that if you used Lafayette’s increment of 2114 units and you adjusted it by population, they have the highest per capita allocation for the City. Second is Walnut Creek, Orinda which has a BART station and they have the same opportunity areas, the same closeness to work, the same BART station and they are 300 units less.
If they follow the path then he agrees with Councilmember Candell and agrees with Eliot Hudson that we need to make that point. But, what he would like to do now is see if they can go down that path. If they cannot and do not, they need to look at other ways to achieve their goals. In fact, they even need to discuss what a priority is. It could be that for some of them avoiding the builder’s remedy is not a concern, but it is for him because it is not just the downtown. It could be Happy Valley, Reliez Valley or Burton Valley. He is suggesting the Council proceed using the experts on the screen if they can go down that path.
City Council & Youth Commission Meeting Page 24 of 40 November 14, 2022 Mayor Gerringer asked if Vice Mayor Anduri is asking staff to tell the Council whether that timeline works. Vice Mayor Anduri said yes, what the path is and whether it is realistic. Councilmember Dawson added also is whether more consultants, resources, and staff will be needed as well.
Mr. Wolff said he heard, what the path is. Staff attempted to lay out the options in the staff report and speak to those.
Vice Mayor Anduri said he thinks what Councilmember Candell is asking for is Option 1 and seeing if there is a path of doing Option 1 in a timely, safe manner.
Mr. Wolff said staff can bolster the argument and evidence that they resubmit to HCD regarding the BART station and he thinks it would not necessarily change the City’s RHNA allocation, but it would be informative. He thinks the City can develop programs to include in the Housing Element which would go to support development on BART in this upcoming cycle. Essentially, the would take on some of those tasks and allocating whatever resources they can to pursuing development on BART which should be clear to HCD that they are committed to that. If this is the direction of the Council they can do that. It will come down ultimately to whether HCD accepts it or not and there is no bright line that they have provided about what would and would not be acceptable. It is a body of evidence and analysis to make a case about all opportunity sites. It is not simply publicly owned ones that need to have this analysis and rationale that supports them being included. It is all sites.
He thinks there would be additional work that would support the inclusion of BART as a site in the very high fire hazard severity zone so that would be direction staff would want to get from Council; to pursue that additional work. Staff has opened this discussion preliminarily with ESA and the expertise they would hope to have to address the breadth and depth of the AG’s guidance if they want to go to the full extent would have implications on timing and there are a limited number of experts in the field of wildfire. However, they are out there but are in high demand and already committed to a multitude of projects and analyses. So, if it is the direction of the Council staff can retain one that has worked with ESA who is a former Cal Fire official, but the availability and the work product would likely push them into mid-December.
Ms. Owsowitz interjected that she absolutely agrees and ESA has a subconsultant they can bring on board to do further analysis, but to the extent that the City pursues Option 1 and pursues collecting this additional information and making additional statements with regard to wildfire risk, to the extent it does not leave the EIRs less than significant conclusion in place, the City will be required to re-circulate the EIR and there is not time to do that and comply with CEQA by January 31st.
Councilmember Candell said the Council can choose overriding considerations and not re-circulate, and she asked if this is an option.
Ms. Owsowitz said no, it is not. You can only override a finding of significance. Right now, the EIR does not find wildfire to be a significant impact, so there is no way to override it.
Vice Mayor Anduri said if they find it to be of significance, he asked if they need to re-circulate, and Ms.
Owsowitz said yes. That would be CEQA’s requirement.
City Council & Youth Commission Meeting Page 25 of 40 November 14, 2022 Councilmember Candell said she got different advice from the City Attorney saying that they could as a lead agency choose not to re-circulate it and have a CEQA violation. She asked who would sue the City for that.
City Attorney Subramanian said it is the Council’s choice to comply with CEQA or not. She thinks if they are giving the best legal advice they can give to adequately defend the City should it be challenged, staff would recommend re-circulation of the document if they were to change the significance finding, as presented by Mr. Wolff and Ms. Owsowitz. This would comply with CEQA and that would allow them to best defend the City should it be challenged. If the City did not want to take their recommendation, that is the Council’s choice, and she thinks that is what Councilmember Candell is referring to.
Mayor Gerringer asked if Vice Mayor Anduri had any other questions about timing or asked if staff had any other comments to add.
Vice Mayor Anduri said in looking at the path, the only path he sees that gets them using Option 1 that gets them something by the 31st is to move forward with BART, trying to add support, make a public statement that they want to move forward, move forward with the overlay district and adopt it at the same time the Council adopts the Housing Element, but to do that they would need CEQA, the EIR and they would add language that is called for by AG Bonta’s recommendations, but they would not change their CEQA findings, still finding it is not a significant impact, and so they would finalize the EIR with that conclusion, and wrap it up by January 31st.
Ms. Owsowitz said she thinks everything Vice Mayor Anduri said it correct, except for one minor clarification. Unless they remove the very high fire hazard zones, the narrative as to how they comply with the AG’s guidance is very, very difficult to write because they are proposing development in very high fire hazard severity zones at DeSilva South and BART. So, while the Council can proceed as they have, their advice is that it would be harder to write a narrative as to how the Housing Element complies with the wildfire guidance issued by AG Bonta if they keep BART and DeSilva South in, but they can do that and not re-circulate and continue with the finding of less than significance.
Vice Mayor Anduri said that creates two issues. One is that they have two letters from attorneys, and they have Ms. Battersby mentioning a third attorney who has said that if they do that they have an inadequate EIR. They have not said they would sue but that could happen. He would say that they have a high likelihood if they go down that path of being sued. Also, they have a likelihood if they go down that path of HCD coming back on March 1st or April 1st and saying they have reviewed all of this and they are rejecting the City’s Housing Element because there is no way to get BART done within the period, so they have no alternative than say they cannot include that. Then, they are subject to the builder’s remedy.
Councilmember Candell said she is understanding the opposite on that; that it is the Fonseca case that says as long as the City certifies its EIR and put in a Housing Element and self-certify it, even if HCD rejects it 5 times they are already in significant compliance and builder’s remedy does not apply. So, they do not have to rely on HCD approving their Housing Element. All they have to do is get to that selfcertification. They can reject it and the City is still fine, and she asked if that is true.
City Council & Youth Commission Meeting Page 26 of 40 November 14, 2022 Ms. Subramanian added that they need to have a Housing Element EIR that is in compliance with CEQA, so this is why some of the comments being made in terms of what they are recommending are critical.
In addition, they can adopt the Housing Element but they need to have it substantially comply with Housing Element law, so they have to be able to defend both of those documents in court; one, the EIR in compliance with CEQA, and two, the Housing Element in substantial compliance with Housing Element law. If they can do that, yes, they can rely on those documents to defend builders’ remedy.
There are other repercussions to not having a Housing Element that is certified by HCD, but it is not builder’s remedy.
Ms. Owsowitz added that to the extent there is any litigation, whether it is about the EIR or Housing Element, an unfortunate outcome in litigation with regard to the EIR could result in the requirement that the City rescind its approval of the Housing Element and she would be concerned that would reopen the builder’s remedy option if it occurs sometime after January 31st.
Councilmember Kwok said he wanted to continue on in Vice Mayor Anduri’s line of questioning regarding what if the City goes down that path, and he thinks they have walked him through January 31st and one of those worst-case scenarios they get to February some time and HCD has rejected their plan to build on BART, and then they stop there. If they continue and there is a rejection, he asked what would happen. Then they could put their plan B in place and maybe they are subject to builder’s remedy in the meantime, but he asked to keep going through what would happen in months and years to understand the City’s risk exposure and also timing of when they would have an approved Housing Element.
Mr. Wolff said he does not want to say it is open-ended but not definitively clear. HCD can reject the City’s second submission on a number of grounds. One is related to opportunity sites. Another is respect to AFFH. Another component is the adequacy as HCD sees it of the goals, policies, and programs. So, there is a breadth of factors that HCD ultimately needs to say “yes” you have met the obligations under housing law. So, he does not want to limit it to any one thing, but the City’s response will be to respond to those comments and hopefully they continue to be fewer, narrower in scope and clearer with each communication or review from HCD. This is not assured. There is no obligation for HCD to limit its comments in the second review to those which were raised in the first review and whether the City successfully addressed those. New comments could be raised. So, the City’s response from staff’s standpoint will be to address those as quickly and thoroughly as possible for re-submission to the State.
It is a challenging order in part because every community is different, and they are not objective standards. There is no objective standard by which Housing Elements are reviewed. It is very subjective and case-by-case because each community is different.
Councilmember Kwok asked if there are any learnings from Southern California where the majority of 200+ cities did not get an approval in the beginning, and now they are more than one year down the road what percentage have been approved. Seemingly, he asked if they would all be at the same type of risk or exposure Lafayette would have in the event the City got to February without an approved Housing Element.
Mr. Wolff said certainly, there is a body of work that Southern California’s effort went through and responded. However, he thinks to even copy and paste and say Lafayette will do that would not necessarily be sufficient because HCD’s own guidance has evolved and been informed with respect to AFFH, etc.
City Council & Youth Commission Meeting Page 27 of 40 November 14, 2022 He said what the City has been advised by ABAG and others is that it will not be necessarily an apples to apples comparison between Southern California Housing Elements which were reviewed and certified a year ago and today. They can be informative, particularly those in the Bay area like Alameda and Emeryville, which have already been certified. But again, the way those communities have addressed the breadth of requirements will not be 100% analogous to the way Lafayette does. That said it just behooves the City to do its best to address the requirements as they understand them in the moment and then be further informed by HCD to the degree they can.
The more that the City does and commit, the clearer it will be to HCD that they are truly meeting requirements. HCD has said they will look and study doing “x, y or z” because that is not a commitment to doing anything. It is a commitment to analyze and study. Therefore, the direction from HCD and ABAG is for commitments that are more concrete and tangible with respect to housing programs. If the Council is interested in numbers from Southern California, staff can provide an update on that.
Councilmember Kwok replied this is not necessary.
Councilmember Candell referred back to the EIR in the very high fire hazard severity zones and said it seems like the DeSilva South property would be very different. Even based on the scenarios Mayor Gerringer worked out with Cal Fire, it seems like the City would not change the significance rating if they included DeSilva South based on Diablo winds and based on it going the other direction and no single ingress and egress. It seems that would be one the City could get in time before January 31st.
Mayor Gerringer questioned what the reference was which mentioned Cal Fire. Councilmember Candell asked if Mayor Gerringer remembers the scenarios from the task force she came up with to study the wildfire risk. Mayor Gerringer said the experts came up with but she was there.
Mayor Gerringer asked if Councilmember Candell was asking that question in relation to looking at other options besides just building at BART or just putting BART in the City’s opportunity sites.
Councilmember Candell said she is looking at the Chamber option because the EIR might be able to get through in time because it would not change the significance to the wildfire risk by including the DeSilva sites. She asked if there is a path for the EIR to be certified by the end of January, include the DeSilva sites, and where they would not have to re-circulate.
Ms. Owsowitz said her understanding is there are two very high fire hazard severity zones and DeSilva south and she has never seen them treated differently but would defer to Mr. Wolff.
Mr. Wolff concurred that both sites are sizeable, approximate or adjacent to 4-lane evacuation routes, so he thinks the inclusion of DeSilva South instead of BART does not change the approach staff would take to recommend and address CEQA and the AG’s guidance. So, he does not think it would change.
Councilmember Candell asked if the City studied that in the EIR. Mr. Wolff said they did study DeSilva South as one of the opportunity sites which is Area 9.
Mayor Gerringer said they can come back to this. If everyone has their questions if they continue down the path with BART and their advice is that it has its challenges, both legal and logistical, and HCD approving it, they can come back to that.
City Council & Youth Commission Meeting Page 28 of 40 November 14, 2022 Looking at the other options, Option 2 provided them with a good starting place and they heard tonight from the Chamber about some things they would like to see changed in that, such as potentially requiring the mixed use, looking at some other sites, and how they balance that for infill and upzoning in the downtown area. If they went to the Option 2 route they were also asked to look at having staff look at the Chamber’s proposal and how that works with balancing those numbers.
One of the concerns about Option 2 was how close it was on a buffer for the very low income category, but in looking at Option 5, as Ms. McDonald and Ms. Brown discussed and how they did look at that when they were discussing it with GPAC, the PC and the Council how that works in the transition areas.
The Chamber did discuss looking back again at DeSilva South, and she believes that was one of the GPAC options, but it then got to the PC. She is hearing that if they leave anything in a high fire hazard severity zone; that does impact the EIR. ESA will provide additional information but where she would like to see is blending of what the Chamber talked about and other concerns heard. She also has other questions she will come back to after moving to Council discussion on other options. She thinks Option 2 is a place to start if they do not believe BART will get the City there in the timeline.
Councilmember Dawson said she agrees with Mayor Gerringer and to see how those numbers would work with what is proposed in different elements of the Chamber’s Option 2 and what was proposed in Option 4 regarding stepping and what numbers actually look like in one scenario.
Vice Mayor Anduri said he thinks they should continue to discuss this, but he does not think they are at the point of asking staff to come back with more information. He thinks the Council needs to make more decisions.
Mayor Gerringer said she was trying to move the discussion forward because she has had concerns about putting everything at BART for reasons outlined in an 8-year time cycle. She wanted to move the Council to discuss all of it in the bigger picture.
Vice Mayor Anduri said they have had a detailed discussion of Option 1 and the path it would take. The Mayor is saying now to look at the decisions they must make on the other options. He would say the first big decision they would have to make is that they include the DeSilva South site. He thinks Option 2 is fine because he does not personally want to include the DeSilva South site, but he thinks they need to tweak Option 2 because they saw what happened with 35 units per acre zoning with the Madison Park project and to him, south of Mt. Diablo Boulevard should be 35 units per acre. To go to 58 or 60 units per acre which could result in 90 and have a 6-story building on a parcel that is already at least a full story above the single-family dwellings, they just cannot do that. So, Option 2 is not an option.
He is looking at tweaking that and for him it is Option 4 of some kind. Option 4 with nothing on BART, 35 units per acre south of BART, and going with the PC split of the three areas north of BART. What he would propose is 75 units per acre along the freeway and 50 units per acre along Mt. Diablo Boulevard.
But the key decision is whether they are putting in DeSilva South. It is a big number and if you have clarity on that it makes it easier to discuss the other things.
Mayor Gerringer said DeSilva South is in a high fire severity zone and if put in she asked what that does to the timing and the path.
City Council & Youth Commission Meeting Page 29 of 40 November 14, 2022 Mr. Wolff said staff would recommend additional work be done which would have implications on the EIR and the timeline. However, if the conclusion does not change and there are no additional mitigations then the Council could certify and need not re-circulate. But, he thinks there is just a bright line difference between including one or more sites in a high fire hazard area or not under the AG’s late issue of that guidance. Again, it is guidance and staff has done so much of what he is recommending but that said the guidance would be not to put any new significant housing in high fire hazard severity zones if cities can avoid it. Sometimes, that is unavoidable and not the best avenue, so to the degree further analyses can be done and bolster the rationale by which you would include one or more sites in a high fire hazard area, it behooves the City to do that.
Ms. Owsowitz said she does not disagree with that. She thinks the more they pursue a path that is arguably in conflict with the AG’s guidance, the less they would advise that the EIR can proceed without re-circulation because the more you end up addressing those potential conflicts with the AG’s guidance, the more like you are to disclose significant new impacts, which quite frankly members of the public have asserted they had. So, it starts getting complicated and she would not assume that additional study of retaining DeSilva South would not lead them down the re-circulation path. She cannot guarantee it, but she cannot assume it would not.
Councilmember Candell said if they do not change the significance of the hazard and it remains insignificant, she asked if there is a path.
Ms. Owsowitz said the Council can remove BART from the project and certify the EIR with a narrative as to why the Council thinks all the AG’s recommendations have been met. It just gets that much harder if a very high fire hazard severity zone property remains. That is why they are saying they would have to look at that and she does not know now whether it would lead the City to finding a new impact based on the AG’s guidance.
Councilmember Candell asked if any other cities are following AG Bonta’s advice as closely as Lafayette is for their Housing Element.
Ms. Owsowitz said they are reading it very closely and what they have done is called it significant and unavoidable to begin with because they published their Draft EIR after AG Bonta’s guidance went out.
Very nearby cities did this. They found it significant and unavoidable, have not published their FEIRs yet, but they did come out after AG Bonta, so they knew where they were going.
Councilmember Kwok thanked all the members of the public who contributed comments today because he thinks they had a diverse group that embodied the conversation for 18 months. Whether people live here or not, he appreciates hearing all views.
He thinks as they think about Councilmember Candell’s start of the conversation to go for it on the BART sites, he would say in stepping back in the role of planning their future and thinking 20 years into the future he asked what is the best place to add 20% more housing in the City. They have run this by the GPAC, PC, Chamber, and resoundingly heard enthusiasm to put it on the BART station. So, no doubt there is the list of challenges Mr. Wolff put in the memo why this is hard as well as the solar panel issues, but he thinks in looking at the 2030 view and looking back this is their chance to put it in the plan, go to bat for it as much as they can, and advocate as hard as they can.
City Council & Youth Commission Meeting Page 30 of 40 November 14, 2022 At the last meeting, Vice Mayor Anduri suggested taking a legislative approach and contacting them and having them intervene and help the City with a difficult thing. He thinks they should give it every shot they have if this is what the community wants. He is interested in that, but they talked about having a Plan B in case that did not work. So, he views it as a parallel plan they would work on at the same time.
In this meeting, he thought this meeting would be a discussion of Plan B and then saw Options 1, 2, 3 and 4 with Option 1 as Plan A and Option 2 as the recommended one. He thinks his head is still doing Plan A and working on Plan B, so they have two options. They are running out of time, so the builder’s remedy issue is something he is concerned about.
He is in favor of pushing forward with Option 1 as best they can and also doing everything on Plan B and use Option 2 as a starting point, use today’s feedback from the community to enhance it, and consider starting with Options 2, 3 or 4 as Plan B. His third point when Vice Mayor Anduri asked about DeSilva South, he is not for that. He would prefer to see the density in the downtown to make it more bike able and walkable. They are trying to attract younger families that will be able to walk to schools, and there are not schools on DeSilva South. He is willing to think about it if they had no other choice, but it would not be his first choice to put the density out on DeSilva South.
Vice Mayor Anduri said he appreciates those comments. Again, they have Plan A which was the path, and he asked to come back to that. What they are doing now is developing Plan B. His view on DeSilva South is that he does not think it should be this site because it will be another pocket of housing away from the downtown, away from transportation and away from schools, and it is the last land in Lafayette they can use for playing fields. They can possibly get two ballfields and two playing fields on that property. If it is gone to housing, there is no room in Lafayette. So, he is in favor of taking DeSilva out of the mix.
Councilmember Candell said she is supportive of Option A and should keep pushing on that as hard as they can and really understand their legal rights if they re-circulate it or not re-circulate it and the risk if they change the significance and do not re-circulate it. She questioned who would sue the City for that.
She does not know who would sue the City for not re-circulating an EIR that did all the right things that the AG told them to do. So, not CEQA being compliant to her is a lesser of many evils, but still gets the Housing Element done on time, which is a valid option to consider.
She understands where Vice Mayor Anduri is. She hopes that if they do include DeSilva South they work with a developer to get a ballfield there which would be great. She does not see that is a bad place for housing, but knows it is not exactly ideal. It is near the Reservoir, across from a gym, near a park.
Regarding upzoning the downtown she understands the Chamber is not happy with that. She likes what Ms. McDonald said that this was the compromise between GPAC and the PC, so she would prefer to take DeSilva South and take the Chamber’s advice and not completely upzone the downtown.
Mayor Gerringer said she is hearing from at least two people with moving forward with continuing with leaving the BART site in, has heard there is not a path there to get done by the 31st. For all the reasons stated by staff and what the Council has talked about over the last 18 months is that given the challenges associated with the BART lots she did not see HCD approving that, so she is not ready.
City Council & Youth Commission Meeting Page 31 of 40 November 14, 2022 The legislators will come back on December 5th, get sworn in, and some legislators will put forward legislation and introduce bills that they have been carrying and did not make it as far. Timing-wise, she questioned the City’s ability to meet their deadline, whether it is the 31st or not, and a legislative fix is not something the City can do. They know sites will happen on Oak Hill because they are in the pipeline.
She feels continuing to go down the BART opportunity sites put them at more risk and she just does not believe it will get built in this cycle. If HCD says go forward and make it happen, she thinks the City still has an uphill battle in bringing the community to wanting anything to be built there for all reasons they started this discussion around high fire severity zones. She has strong concerns continuing down the path timing-wise and thinks the builder’s remedy is a risk. She said if it is the will of the Council to go forward with the BART option that is what they will do and can direct staff.
Vice Mayor Anduri said he is against proceeding with the BART option at this point. He thinks they have to take a long view on this whole process now which is where Lafayette will be going 20 years out.
Without question, people 20 years from now are going to think the Council was crazy for not wanting to put housing on BART. You have got a major transit station and you have to have housing near it. So, there is going to be housing on BART at some point.
The problem is, and he is changing his view because he was very strong about making these arguments.
But, he does not think what he described as a legislative option in a prior meeting will work because at least one legislator is probably not going to help. So, in hearing the discussion with BART representatives and hearing what the discussions were with HCD, he sees very little likelihood that HCD is going to approve BART as opportunity sites. If the City moves forward with it that also creates issues with the EIR.
Again, he is more concerned with the EIR that if they will put themselves at risk of not having a compliant EIR. He thinks the best course now in looking to the future is to take the BART lots out. They still want to make the point to HCD that they think they have their numbers because they have the BART station, that they upzone Areas 1, 3 and 5, the split, and the numbers he gave to Ms. Robles which leave them with a smaller buffer. It gives them 2,733 opportunity sites which is a lot less than the 3,004, so the buffer drops down to 29%. This is still a good buffer.
The problem is that the buffer for the very low income is only 2% so they might want to look at that more. But, he would make the argument to HCD if they push on the buffer is to say look where they started from. They had this high number because of BART, and they have to take BART out because they will not allow the City to do it, BART is not going to put them in the Work Plan. Then, once they take BART and the DeSilva South property out, they can go forward with the EIR and do that within the time they have before January 31st.
At the same time, if they do that he would want to: 1) commit the Council and the City to take steps to analyze wildfire risk and improve evacuation times such as trying to develop a second evacuation route for the Glen and other things; and 2) If they take out BART they do not need to wait until 2030 before thinking about BART again. He thinks they should think about BART now for the next cycle. That means completing and adopting their overlay district. To do this, they need an EIR and he thinks they should do the complete environmental analysis of the fire risk in the Glen and other areas.
He thinks there are too many risks with moving forward with BART in the plan, so he was in favor of Option 4 in the staff report.
City Council & Youth Commission Meeting Page 32 of 40 November 14, 2022 Councilmember Dawson said she appreciates that because as much as BART makes sense, the City is in a hard place and they have other options. Waiting on BART is the long view. Coming up with a plan, adopting the overlay, making it a thoughtful thing, and working with BART to get on their Work Plan in a more appropriate time that works makes a lot of sense. She also agrees with Councilmember Candell that their residents are saying they want to be sure homes are safe. They should do the risk analysis across the community, given there are other neighborhoods that have reduced evacuation routes timing. So, she thinks at this point in terms of what they are facing with the AG’s recommendations, they should analyze this and go this route.
To the Chamber’s point, she almost thinks there is a point to be made of including DeSilva South because they could have a better chance of developing that site how they would like to develop it. It is still in the very high fire zone, so she would probably defer that as well to the next cycle and that can be studied so she likes Option 4.
Mayor Gerringer said she agrees with Vice Mayor Anduri on a number of elements. She thinks as BART begins their review in 2023 the City can begin that process. She thinks it is more realistic in the next cycle. She agrees for a number of reasons with DeSilva South because it is farther out. It may seem different than BART in terms of its impact and being in the high fire zone, but she would be there are neighbors who would have those concerns. She agrees with studying it.
She has some concerns about Option 4 in terms of putting the focus on Mt. Diablo Boulevard and closer to the freeway. She appreciates the tiering down effects, but she would like to see some balance of the Chamber in Option 2. She did not review it today because she had reservations about Option 4, so as they come back she appreciates it takes it off of those transition areas. But she thinks it puts it in an area where having it in just that spot. She asked if staff could look at Option 2, include some of the Chamber’s comments, and still reach their numbers.
Vice Mayor Anduri clarified that the chart for the staff recommendation uses 125 units per acre up against the freeway, 35 units per acre on both sides of Mt. Diablo Boulevard. What he is suggesting is 75 units per acre up against the freeway so it matches what will be across BART, keep 35 units per acre on the south side, and move the north side of Mt. Diablo to 50 units per acre.
Mayor Gerringer said she also recognizes that once building units at BART it also sits on the freeway, but these are mitigations they will have to look at down the road.
Councilmember Candell asked if they will also consider the Chamber’s comments about down by Desco they want higher, even on the south side.
Mayor Gerringer said yes, this was how they blend in the Chamber. She is hearing this from the Council, minus DeSilva South.
Councilmember Candell asked if they at least understand if they have to re-circulate the EIR if they include DeSilva South. She thinks the BART lots are very different.
Vice Mayor Anduri asked if this is a factor in anyone’s decision. He is a “no” on DeSilva South whether or not.
City Council & Youth Commission Meeting Page 33 of 40 November 14, 2022 Mayor Gerringer asked if staff had enough guidance in terms of going back and doing the study and returning for the November 28th meeting to look at the HCD letter in terms of goals, programs, and policies and then relative to the options.
Mr. Wolff said he thinks staff has direction and what it needs to continue revising the goals, policies, and programs as well as the opportunity sites, and will bring back to the Council wherein they would provide a couple of different mixes for consideration, but certainly preparing exhibits which address Vice Mayor Anduri’s proposal of 75, 50, 35, as well as trying to incorporate the Chamber’s recommendations but not in the scenarios including BART or DeSilva.
He also confirmed with Mayor Gerringer that Ms. Robles and Ms. Elrod had what they needed as far as goals, policies, and programs.
Vice Mayor Anduri said he wants to be sure there is enough time to get revisions to the PC and back to the Council with noticing by January 31st and whether they have a path for finalizing the Housing Element. He understands going down this path they do not have to re-circulate the EIR, but they do need to revise the EIR.
Ms. Owsowitz said they would not revise the EIR. They would revise the project description which can be done in a narrative. As long as they are not increasing any impacts, it would just be a narrative with the staff report and a set of CEQA findings that were tailored to that revised project after the Council certifies and when it approves the revised project just discussed.
Mayor Gerringer said they have one meeting in December and can schedule other meetings.
Mr. Wolff said he appreciates the Council is open to scheduling an additional meeting when there are more revisions to consider and they will shoot for November 28th for the goals, policies, and programs, as well as an update on the AFFH. As part of the FEIR, Councilmember Dawson then confirmed the narrative could be framed as a errata or a narrative that becomes part of the FEIR. Vice Mayor Anduri suggested that either the Housing Element or the transmission letter with the Housing Element as to why they did this. At a minimum, he would indicate the City is continuing to work on the BART sites, but are taking them out of the opportunity sites.
Mayor Gerringer asked and confirmed with the City Attorney the Council should continue the meeting date to November 28th.
ACTION: It was M/S/C (Anduri/Dawson) to continue the public hearing to November 28, 2022. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
BREAK
Mayor Gerringer called for a break at 10:02 p.m. and thereafter reconvened the meeting at 10:06 p.m.
Mayor Gerringer suggested a motion to extend the meeting to 12 midnight and to open up items 11.B, 12, and 13.
EXTEND MEETING/OPEN ITEMS
ACTION: It was M/S/C (Anduri/Candell) to extend the meeting until 12 midnight, and open Items 11.B, 12, and 13. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, Kwok; Noes: None).
City Council & Youth Commission Meeting Page 34 of 40 November 14, 2022 B. Nancy Tran, Senior Planner
APPEAL OF THE PLANNING COMMISSION'S APPROVAL OF: HDP32‐21 Todd Dellamar (Owner), R‐20 Zoning: Request for: (1) a Phase I Hillside Development Permit for siting and massing determination, (2) Design review, (3) a Grading Permit, and (4) a Tree Permit for the construction of a new 3,646 sq. ft. two‐story single‐family residence including garage with a maximum ridge height of 31'0" on a vacant unaddressed parcel in the Hillside Overlay District on Los Arabis, APN: 249‐120‐005. (CEQA Determination: Exempt Pursuant to CEQA Guidelines §15303, “New Construction or Conversion of Small Structures.”) Recommendation: Conduct a public hearing, review the project, find the project exempt from CEQA, and adopt Resolution 2022-56 upholding the Planning Commission decision and approving the project, subject to conditions.
Mr. Wolff introduced the item and provided appeal hearing protocols.
Senior Planner Nancy Tran gave the staff report and overview of the PC’s approval of HDP32-21 Todd Dellamar requested to be appealed by Councilmember Candell which was last heard by the City Council on September 26, 2022. This appeal concerns the PC’s August 1st Phase I Hillside Development approval and associated permit approvals for construction of an approximately 3,600 gross square foot, two-story home over a basement garage on an unaddressed parcel on the west side of Los Arabis.
At its last meeting, the Council continued the meeting to allow the applicant time to meet and work with neighbors to further address issues raised regarding the turnaround and building siting. Since the meeting, the applicant met separately with Councilmembers and neighbors to further discuss the project. The applicant also submitted proposed alternatives comparing three conditions and the building moved approximately north 10 feet and moved 20 feet. They also provided a proposed relocated turnaround from the southern side to the northern side and a survey of the boundary lines between the subject property and 4146 Los Arabis.
Since publication of the staff report, staff received additional public comment opposing the appeal and in support of upholding the PC’s approval. These were afforded to the Council and uploaded on-line as part of the public record earlier today. Following review of the alternatives, staff determined that they appear to require greater grading and taller retaining walls including the turnaround location which would also require a variance. Therefore, staff recommends the City Council adopt Resolution 2022-56 upholding the PC’s decision and approving the project, subject to conditions because the PC’s approved siting and massing is compatible with a single-family neighborhood character, steps with the topography, minimizes necessary retaining wall height, as well as addresses privacy and emergency vehicle access concerns, and is consistent with the residential design guidelines.
Mayor Gerringer requested Councilmembers disclose any ex-parte communications. Mayor Gerringer and Councilmembers then disclosed their meetings on site and conversations with attorney Alan Moore, Mr. and Mrs. Heydenfeldt and Mr. Dellamar.
City Council & Youth Commission Meeting Page 35 of 40 November 14, 2022 ALAN MOORE, Attorney, said he has been working with Todd Dellamar and his family regarding their request to build a single-family home. The have also been working with architectural designers Donna Chivers, Jill McGovern and Terry Camp, landscape architect, and with the Humann Company regarding this siting and massing study. Over the last year, the Dellamar family has proposed this modest home of 2,700 square feet of livable space with a 900 square foot garage. On August 1st, the PC approved the site and massing for the home. In approving the site, the PC made several findings, which he recited as being within all allowable regulations, and Planning staff fully supported the siting and massing for the project.
On August 15th on the last date, the City Council filed an appeal to itself for this appeal and scheduled the appeal for September 26th. He was retained and appeared at that hearing where they heard two primary neighbor concerns; 1) privacy primarily with the Heydenfeldt residence next door at 4146 Arabis to the south; and 2) the location and the visual impact of the turnaround. Given those concerns and at that meeting, he offered to work with the neighbors, the Fire District, and staff which he did. He sent out multiple emails to every neighbor that signed the petition with regards to the project. Out of 9 households, he received 6 responses and out of those he met with all 6, most of them more than once.
After that meeting he submitted a letter dated October 26th giving a summary of his meetings with neighbors and attached a letter from the Humann Company, their civil engineers. The Humann Company stated this house is precisely where it should go. The letter showed that if the house was moved over to the north 5-20 feet, the house must be more embedded into the topography, trees would become impacted, and the driveway becomes shorter and steeper.
The Humann Company also addressed the turnaround and noted that the Fire District supports both locations; the current location to the south on the upper portion of the site and an alternative location down the hill to the north. However, the Humann Company referenced the fact that if it was put downhill to the north they would need 18 foot retaining walls, significant impacts on soils and soils removal and variances, all things being inconsistent with residential design review guidelines. For that reason, it is not recommended.
He returned to neighbors and worked with them again and they came to a compromise with the Heydenfeldt family to the south. He knows the Council is not within their jurisdiction or desire to confirm or ratify a private agreement between the applicant and the Heydenfeldts but he did promise the Heydenfeldts that at this hearing he would give credence to what they said and report back regarding the basics of their agreement so they and other neighbors can see it is just not written words, but something they would follow through on.
The first item related to privacy impacts. As stated in the Humann Company letter in Exhibit B, the Heydenfeldt property now encroaches in part on the Dellamar property. Front yard landscaping and retaining walls, a fence and encroachment are on the Dellamar property. So, to reduce privacy impacts, they have agreed to deed that property over to the Heydenfeldts. They would do a lot line adjustment and give them the property which is the Dellamar’s private property and give it to them as part of the lot line adjustment.
City Council & Youth Commission Meeting Page 36 of 40 November 14, 2022 Secondly, with regard to the turnaround, the Fire District has confirmed they approved both designations. The Heydenfeldts felt the turnaround at the south location could be tweaked a bit so it starts immediately adjacent to the existing water utility box in that area. They have agreed to do that provided that it is the Fire District’s ultimate approval. More importantly, the Heydenfeldts have asked on behalf of other neighbors and themselves that the hammerhead area be softened so it does not have an institutional feel and look like a turnaround one would see at an airport or industrial center. They have agreed to extend their type of rock wall facing around the corner into the turnaround area. Again, they would have to work with the Fire District to ensure it comports to their standards. They have also asked to provide for some landscaping, ivy, vines, trellis work and other things to soften that turnaround, and they have agreed to do that in writing.
While the Council will not adopt this agreement, he states this on the record that they are committed to these things, provided this moves forward. For other neighbors, they retained Terry Camp, a reputable landscape architect in the area and he has agreed to work with neighbors. One backyard has a view of the site and he will assist them in strategically placing screening trees to help those neighbors with regard to those views.
In conclusion, they ask that the Council recognize the agreement they came to with the neighbors, recognize staff’s full support for the project, and for the siting and massing where it is, recognize the PC’s approval of the project, and to move forward to start welcoming the Dellamar family to Lafayette as they move through with the remainder of the project, and to uphold the PC’s approval.
Mayor Gerringer thanked Mr. Moore for the work done and she asked if there were any questions.
There were none, and Mayor Gerringer then opened the public comment period.
DAN HEYDENFELDT said he wants to let the Council know that this compromise agreement represents a solution that the Heydenfeldts support. He has communicated this compromise agreement to the neighbors and the conditions that would make it void. He does not know if other neighbors will participate this evening, given the time. He feels strongly that this process has taken its toll on the neighborhood and it needs to come to resolution, and that is the primary reason they are agreeing to it.
The agreement has not been formalized or authorized by both parties which creates some risk, but he will take the good faith of Mr. Moore’s comments and agree to the major points discussed and agree to operate in good faith to get it finalized into some sort of legal agreement, and they ask that the applicant and his representatives act in good faith to prepare, collaborate, and finalize it within the next two weeks.
Rebuttal - Applicant
Mr. Moore said he concurs with Mr. Heydenfeldt’s comments that they will commit to the agreement and thanked the Council for its consideration.
Mayor Gerringer thanked the applicant, Mr. Moore, the Heydenfeldts and neighbors for meeting and working towards an agreement. Because the Council is considering an appeal, received information, she would be inclined to look at the findings and move forward unless there are questions of the Council.
Councilmember Candell said she heard is compromise for everyone. She referred to COA#6 and said if something came up with the easements that did not result in the compromise, she wondered if the condition would address this.
City Council & Youth Commission Meeting Page 37 of 40 November 14, 2022 Ms. Subramanian said reference to the lot line adjustment that Mr. Moore made between the two property owners would not be an issue here. It is an on-going condition that the property lines and easements are accurately reflected. If that occurs soon, she would presume they would receive an updated version, but for some reason it did not occur, this would be a private matter between the two parties.
Councilmember Candell said there was the question about the easement into the downside neighbor’s driveway getting access there, but she confirmed this has been resolved.
Councilmember Dawson asked and confirmed this set of conditions is the same with what was before the PC.
Ms. Subramanian said Mr. Moore made reference to adjusting the hammerhead, so it was adjacent to the water utility box, and she asked if any of the conditions need to be revised to address this to obtain Fire District approval.
Ms. Tran said she did not believe so as it still needs to go through Phase 2 approvals which could be reflected in the revised plan.
CHRIS BACHMAN, Fire Marshal/Assistant Fire Chief, Con Fire, clarified they are open to the multiple proposals provided, as long as the specifications for the clearances are met they are open to the look and design and material used to accommodate the hammerhead. Con Fire is also open to other options with a potential neighbor’s driveway being used as a turnaround if easements can be recorded. Con Fire would not require the hammerhead to be installed or done immediately in order for the project to start construction but would hold the hammerhead as a final inspection condition and would like the City’s support not to issue a Certificate of Occupancy until they have signed off on the turnaround.
Councilmember Kwok thanked Fire Marshal Bachman for how much he has engaged and assisted in this process and to find solutions and offer options.
Ms. Tran was asked if there should be a condition regarding holding the Certificate of Occupancy until the Fire District has signed off on the turnaround. Mr. Wolff said it is a standard condition of approval and it is sufficient.
ACTION: It was M/S/C (Kwok/Candell) to adopt Resolution 2022-56 upholding the Planning Commission’s decision and approving the project, subject to conditions. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
12. ITEMS REMOVED FROM CONSENT
A. Minutes
1. October 24, 2022
Recommendation: Approve.
Vice Mayor Anduri referred to pages 6 and 7 of the minutes, he is speaking about Plan C, a legislative option and he wanted to state again he was not referring to a litigation option because the next paragraph makes it sound like that is what he was doing.
City Council & Youth Commission Meeting Page 38 of 40 November 14, 2022 Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Anduri/Kwok) to approve the October 24, 2022 City Council Minutes. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
13. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Vice Mayor Anduri said he would like to ensure there are two items on the November 28th agenda: the first being the consideration of the Safe Gun Storage Ordinance. When this was sent to the Crime Prevention Commission, the Council asked that they develop a report so the Council could consider it on November 28th. They did so at their October 26th meeting, and he understands the report is in process.
Secondly, he would like to see on the agenda consideration of a recommendation from the Environmental Task Force that Lafayette become part of Sustainable Contra Costa.
Councilmember Candell said she would like to bring forth a version of the City of Pinole’s resolution in support of Iranian women that was presented at the Mayors’ Conference in light of the recent vote by the Iranian government to basically execute 15,000 protestors.
Mayor Gerringer said she would also like to bring back a discussion on how the Council handles these types of resolutions and proclamations. She noted the City of Pleasant Hill has a policy relative to how they address these types of items. Vice Mayor Anduri said while he agrees completely and would love to do something about the Iranian situation he also thinks the Council should set guidelines now regarding where they step in.
Councilmember Kwok reported several Councilmembers went to the Town Hall regarding the future of water. Water is getting much more expensive, prices are rising, and both Central Sanitary District and EBMUD gave excellent presentations with Q&A afterwards. It is very expensive to do purple pipe compared to other methods of water treatment, so it does not seem feasible.
Vice Mayor Anduri agreed it was an excellent presentation. His take-a-way was that the City is in very good hands with the leadership at Central Sanitation and EBMUD. Secondly, he did not realize how dire the water situation is in terms of precipitation but came away very impressed how these agencies are thinking ahead on what to do with deal with less if any snowpack in 40 years.
Councilmember Dawson recognized the observance of Veterans Day and thanked all residents who served in the military. She thanked fellow Councilmembers for their time at the Lafayette Memorial along with Senator DeSaulnier and Assemblymember Rebecca Bauer-Kahan.
B. City Manager’s Update
Recommendation: Receive and file.
City Council & Youth Commission Meeting Page 39 of 40 November 14, 2022 City Manager Srivatsa reported staff has been busy over the last two weeks and she provided an update from each department. On the 12th there was a break-in at the Library. The garage door has been damaged and it needs to be replaced. The Generations of Jazz trailer parked outside was ransacked and people got in and put graffiti on the walls of the garage and construction equipment was stolen. Thanks to excellent detective work, within a couple of hours, a 17 and 18-year-old responsible for this were located and arrested. It appears that $3,000 worth of construction equipment and tools were returned to the construction company.
In the PTR Department, they are dealing with an older building. The boiler malfunctioned and it has been repaired after 6 days. They are also working with the architect to design the HVAC system for the center. In terms of Public Works and Engineering, the Local Roadway Safety Plan Committee has met twice and there is an on-line survey. Thus far, they have received responses from 500 people, about 2,000 discreet comments, and she believes the survey may be extended.
In Planning, they have one vacancy on the Planning Commission left from Commissioner Karen Maggio, so they are really looking to fill that position. Last week, very good candidates were interviewed for the Assistant Planning Director position and there will be second interviews conducted this week. Today she met with Dr. Stevens, talked about projects of mutual interest to bring to the Schools/City Collaboration Committee.
Finally, they are getting ready for next year with the budget calendar and the Council’s priority-setting calendar. A goal setting all day workshop is typically held which is tentatively scheduled for the 4th of March. If there is a Councilmember who cannot attend, she asked to alert her as soon as possible, and Councilmember Candell indicated she was not available. She will work with the outgoing and incoming Mayors to finalize the date and work with the facilitator on another date.
C. Mayor Gerringer
Third Amendment to the City Manager Employment Agreement with Niroop K Srivatsa Recommendation: Authorize the Mayor to execute the attached Third Amendment to the City Manager Employment Agreement with Niroop K Srivatsa.
Mayor Gerringer provided a brief overview of the evaluation process and she was directed to work with the City Manager and City Attorney to return with a third amendment to the City Manager’s employment agreement. They are excited to continue the agreement with Ms. Srivatsa as the City’s Manager.
City Attorney Subramanian stated clarification is needed to indicate that the Third Amendment provides for an annual salary of $267,100 and it will be effective July 1, 2022 and it also extends the term of the agreement to August 31, 2025.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Anduri/Dawson) to authorize the Mayor to execute the attached Third Amendment to the City Manager Employment Agreement with Niroop K Srivatsa providing for an annual salary of $267,100 effective July 1, 2022 and extending the term to August 31, 2025. Vote: 5-0 (Ayes:
Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
City Council & Youth Commission Meeting Page 40 of 40 November 14, 2022 Ms. Srivatsa thanked the Council for their confidence in her, said she cannot do what she does without her excellent staff, and said she is looking forward to wonderful undertakings in the coming years.
14. WRITTEN COMMUNICATIONS – None.
15. ADJOURNMENT – 11:35 p.m.
APPROVED:
__________________________________
Teresa Gerringer, Mayor
ATTEST:
_________________________
Joanne Robbins, City Clerk