City Council & Crime Prevention Commission Meeting Page 1 of 44 November 28, 2022 7 City of Lafayette
City Council
Meeting Minutes
Teleconference Meeting – Watch on the City of Lafayette’s YouTube Channel at November 28, 2022 http://bit.ly/LoveLafayetteYouTube Submit public comments to [email protected] 6:00 p.m. before or during the meeting.
To protect public health, our residents, officials, and staff, and aligned with the Governor’s recent executive order N-29-20, certain teleconference requirements of the Brown Act have been suspended, including the requirement to provide a physical location for members of the public to participate in the meeting. Here is how to participate in the meeting and provide public comment:
1) Watch or Listen: Meetings are broadcast on the City of Lafayette’s YouTube Channel:
http://bit.ly/LoveLafayetteYouTube. An archived, on-demand video of each meeting is maintained on the channel as part of the public record.
2) Submit Comments Before the Meeting: Members of the public can provide public comment by sending an e-mail to [email protected] (for City Council meetings). Those e-mails will be distributed to the members of the City Council, the City Manager, and the City Attorney, and will be posted as part of the public record.
3) Live Remote Public Comments: Members of the public may submit live public comment via Zoom conferencing. You must download the Zoom app or software. Zoom meetings can be accessed by telephone, computer, or smart device. When the Mayor invites public comment for the item on which you would like to comment, please use the "raise hand" feature (or press *9 if connecting via telephone only) to alert staff you have a public comment to provide. Each speaker is allowed three (3) minutes to speak.
Any graphic a speaker wishes to use as part of public comment must be emailed to [email protected] for City Council meetings by 3:00 p.m. the day of the meeting. Zoom Webinar joining instructions will be posted on the meeting agenda prior to the start of the scheduled meeting. 4) Join the Meeting Remotely: Use the links below to join the meeting and provide remote live audio public comment.
https://us02web.zoom.us/j/82289681517?pwd=WmJxdkNlMFZMclBPNjhTVnpVS0tIUT09 Passcode: 541927 or join by phone: Dial 1 669 900 9128; Webinar ID: 822 8968 1517 Passcode: 541927
City Council & Crime Prevention Commission Meeting Page 2 of 44 November 28, 2022
1. CALL TO ORDER
Mayor Gerringer called the Regular City Council meeting to order at 6:00 p.m. via teleconference.
2. ROLL CALL
Present: City Council: Mayor Gerringer; Vice Mayor Anduri; Councilmembers Candell, Dawson and Kwok
Absent: None
Present: Crime Prevention Commission: Chair Traci Reilly; Commissioners Denise Brown, and Daniel Horowitz
Staff Present: Niroop Srivatsa, City Manager; Greg Wolff, Administrative Services Director; Lt.
Ben Alldritt, Chief of Police; Renata Robles, Senior Planner; Suzanne Iarla, Communications Analyst; Charity Schiller, BBK Attorney; Mala Subramanian, City Attorney; Joanne Robbins, City Clerk
3. ADOPTION OF AGENDA
Mayor Gerringer asked if there were any changes to the agenda or public comments.
City Manager Srivatsa said staff is asking for continuance of Items 9.C.1, 2, 3 and 4. Last week, staff received correspondence that requires a closer look at the ordinance. Given the fact there is the Housing Element on the agenda for both meetings in January and that the consulting planner Steve Goetz is away in February, staff is asking for continuance to March 27, 2022.
DAVID CLARK asked if the public could be notified about the status of Item 9.2 prior to the continuance date, and City Manager Srivatsa stated she will ensure that an email is sent to the Creeks Committee, as well as Mr. Goetz to discuss next steps with the Creeks Committee.
ACTION: It was M/S/C (Candell/Dawson) to adopt the agenda, as amended. Roll Call Vote: 5-0 (Ayes:
Anduri, Candell, Dawson, Kwok and Gerringer; Noes: None).
4. PUBLIC COMMENTS – (For items not on the agenda).
None.
5. PRESENTATIONS
A. Crime Prevention Commission
Annual Update
Recommendation: Receive and file.
Chair Traci Reilly introduced Crime Prevention Commissioners and those present are Commissioners Denise Brown and Daniel Horowitz. She said besides engaging the community in various activities, the Town Hall meetings have not returned from COVID and they will continue to try to do more over time.
They shared a booth at the Art and Wine Festival with the Emergency Preparedness Commission, and it was great. The finished the Citizens Academy and Commissioners Brown and Peterson have run that since the beginning.
City Council & Crime Prevention Commission Meeting Page 3 of 44 November 28, 2022 Commissioner Brown said 7 participants are about to graduate and they had a wonderful, abbreviated class schedule due to COVID restrictions, which she described.
Chair Reilly reported the Commission holds monthly meetings, take on topics that come up, noted the Safety Fair was postponed, and she encouraged people to participate to get a feel of what police officers experience.
Police Chief Lt. Ben Alldritt said he appreciates the Commission, their honesty, feedback, stating they are happy to ask the hard questions of him, and is looking forward to 2023, bringing back public events, and having a spring and fall Citizens Academy next year.
Mayor Gerringer and Councilmembers thanked Chair Reilly and Commission members for their update.
Mayor Gerringer opened the public comment period, and there were no speakers.
6. CONSENT CALENDAR
Mayor Gerringer asked if there were public comments or requests to remove an item from the Consent Calendar, and there were none.
A. Minutes - November 14, 2022
Recommendation: Approve.
B. City Council Legislation Committee: Recommendations to Update the City’s Legislative Platform for 2023-24.
Recommendation: Approve the Legislative Platform for 2023-24.
C. Partnership with Sustainable Contra Costa (SCOCD)
Recommendation: Authorize a $2,000 transfer from the General Fund to Environmental Task Force budget 11-153-843 for membership dues.
ACTION: It was M/S/C (Candell/Kwok) to adopt Consent Calendar Item A, B and C. Vote: 5-0 (Ayes:
Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
7. OLD BUSINESS – None.
8. STAFF REPORTS – None.
9. PUBLIC HEARINGS
A. Lt. Ben Alldritt
Ordinance 685 Storage of Firearms
Recommendation: Consider Crime Prevention Commission comments, open public hearing, and consider introduction of Ordinance 685 for first reading.
City Council & Crime Prevention Commission Meeting Page 4 of 44 November 28, 2022 Police Chief Lt. Alldritt gave the staff report and overview of consideration of introduction of Ordinance 685 relating to storage of firearms and background about engagement of the Crime Prevention Commission and subcommittee formed to review the matter. In light of the recent U.S. Supreme Court decision the Commission believes there are legal challenges to passing the ordinance, and it is suggested to consider alternative approaches for gun safety in Lafayette. The Commission acknowledges that future court rulings and state laws may support some type of overall gun storage in private residences, the Commission supports developing public education focused on safe gun storage and overall gun safety, as well as other options.
The proposed ordinance was reviewed by the City Attorney and it can be a criminal matter and also a civil matter. He and Commissioners were available for questions.
Vice Mayor Anduri thanked the Chief for his report and the Crime Prevention Commission subcommittee.
He asked and confirmed that the City Council can follow one of three courses: 1) discuss and decide not to move forward; 2) to discuss it and decide to introduce the ordinance for the first reading at the next meeting; or 3) discuss it and introduce for first reading at this meeting.
Councilmember Candell said it seems the City Attorney’s opinion is different from the subcommittee’s recommendation and she asked for an explanation.
City Attorney Mala Subramanian said she did not give any legal advice to the Crime Prevention Commission, so this is part of where there are some distinct differences. The 2nd Amendment has been litigated recently at the Supreme Court so she can understand the Commission’s concerns, but as noted, she thinks the Council can get to a point to adopt the ordinance. Staff did its best to comply with the Supreme Court decisions including adding certain background information to the staff report to talk about historical context and many cities have adopted this ordinance so she thinks staff feels comfortable, given the two cases have not prohibited this type of regulation. It has just become harder and harder to regulate under the 2nd Amendment.
Councilmember Kwok said in the event there is a legal case against the City, and they lost, he asked if there would be costs involved that the Commission was concerned about.
Chief Alldritt deferred to subcommittee members from the Commission, Chair Reilly and Dan Horowitz to comment.
Commissioner Horowitz said he has no doubt that the purpose of this ordinance is wonderful. His only concern is where they want to stand legally. The Council can adopt this ordinance with the understanding that it is not even close to the case which said they will stop the State of New York from regulating the carrying of firearms outside the house, in essence, expanding the greater protections of in-home protection to possession outside the home. The main ordinance the City Attorney cited was a gun powder ordinance where people cannot store gun powder at home because in the past, it might blow up. Right after the 2nd Amendment was adopted, Congress passed a law requiring all young men to join the militia and own their own guns which is a historical precedent, but there is no precedent here where any pre- or post-Constitution time in the early years prohibited or controlled how guns are used in the house.
City Council & Crime Prevention Commission Meeting Page 5 of 44 November 28, 2022 He said there are many cities that have this ordinance and if challenged in Lafayette, besides paying the City Attorney, the City may have to pay the prevailing party’s attorney’s fees. On the other hand, if they pass the ordinance in a group of many cities with lots of budgets and many groups such as the American Pediatric Association and other groups that will support and provide funding. So, if the Council takes a moral stand and passes the law because it is the right thing to do, it will not hold up and they may have to litigated, but in the end it probably will not cost the city too much money.
Councilmember Dawson asked about enforcement of the ordinance in terms of consequences.
Chief Alldritt said if the ordinance was adopted, violations are reported through code enforcement and thereafter a separate process occurs that involves notices and warning to seek compliance. Police responds reactively and not proactively given resources, so this would be reported directly to the police and they would respond appropriately. It would be a civil versus a criminal matter so that allows the City to address it through the code enforcement process. The challenge is that this is inside the home so the question is who would report it so he did not believe there would be many reports. In watching other cities, he is not aware of any cases to this date. When it involves firearms in homes, there are typically other felony crimes when guns and kids or family members are involved so if they are legally in the home for another call, there are other things applicable per the Penal Code they would use to address the situation at hand.
Councilmember Candell asked if they did pursue a code enforcement situation, she asked if that is the time the City might get a lawsuit.
City Attorney Subramanian said they could get a lawsuit as applied at the time someone was cited for it or a facial challenge where someone would say the ordinance on its face is unconstitutional.
Mayor Gerringer opened the public comment period.
CAROL REIF said she is a long-time member of Moms Demand Action for Gun Sense in America, cited strong community support for the ordinance, and cited a Massachusetts case that upheld the safe storage law. She described situations where law enforcement was in a home for other reasons and noticed an unsecured gun where the individual was prosecuted for violation of the safe storage law. Laws have been shown to influence behavior and create societal norms and if such a law can prevent access by one child or prevent one gun from being stolen and used in the criminal marketplace, it is worth it. There are 40 other communities in California, including Yolo County, that has safe gun ordinances. Gun violence is a public health crisis and she asked the Council to work to adopt the ordinance.
LIZ KEYSER said she is a mother of 3 school-aged children, asked the Council to join their surrounding communities by taking this preventative measure, said in the last month there have been dozens of mass shootings, said during the Thanksgiving week 22 people were killed and 44 injured by guns, and she asked to address this crisis and reduce the risk in Lafayette. Safe storage should apply to all homes regardless of whether a child resides there, and she provided scenarios where children visit other homes. While there are concerns about lawsuits, she asked the Council to do everything it can to prevent gun violence in the community and asked to pass the ordinance which gives local officials important tools.
City Council & Crime Prevention Commission Meeting Page 6 of 44 November 28, 2022 LIBBY HENRY referred to her letter and said her comments are from the perspective of a teacher. Even in the mid-1990’s, teachers worked with police who provided training at schools to understand and address gang violence, active shooter training, and she spoke about her students’ knowledge of what to do if they heard a gunshot.
ANNA DEIGNAN said she has 2 school-aged children who attend Lafayette schools, is a teacher at Acalanes, spoke about continued mass school shootings, said there were at least 152 incidents of gun fire on school grounds resulting in 50 deaths and 122 injuries, and 80% of the guns used came from their own home or a home of a relative or friend. Every year, 350 children in America under 18 gain access to a firearm and unintentionally shoot themselves. She spoke on growing front line demands on teachers, said she has grave concerns they will be able to recruit new teachers and are on the verge of a national crisis.
She asked to pass safe storage laws by adopting the ordinance.
KATY FOREMAN expressed support for the proposed safe firearms storage ordinance and developing public education around gun violence prevention. She cited the variety of statistics relating to gun ownership, epidemic of gun violence and effectiveness of locked firearms and ammunition in reducing gun violence.
ROBERT LAVOIE recognized the support and not a single letter of opposition. He said he grew up in Utah and around guns which he described, supported hunter safety and firearms training, thinks the City is sticking its nose in the privacy of homes and thinks this is not something that needs to be done, noting there are many gun laws in effect.
Vice Mayor Anduri thanked the Commission and everyone who wrote to the Council both in September and this month. He said his preference would be to proceed on the third option which is to introduce the ordinance tonight so the second reading can be at the next meeting and he made a motion to do so.
Councilmember Candell seconded the motion.
Councilmember Kwok referred to the Chief’s comment that it could be a civil or criminal violation, and he asked if this is to be determined now or later.
City Attorney Subramanian stated the LMC has a provision in the ordinance that any violations of the LMC can be either an infraction, a misdemeanor, or a civil citation. Chief Alldritt added that the Police Department would be referring these kinds of violations to code enforcement to proceed with it.
Mayor Gerringer and Councilmembers thanked speakers, the Crime Prevention Commission, and Chief Alldritt and encouraged the Commission bring forward education and training continue to look at safety measures and other things they can take on in the next year relating to the item.
ACTION: It was M/S/C (Anduri/Candell) to introduce Ordinance 685 and continued to December 12th for second reading and adoption. Roll Call Vote: 5-0 (Ayes: Anduri, Candell, Dawson, Kwok and Gerringer; Noes: None).
City Council & Crime Prevention Commission Meeting Page 7 of 44 November 28, 2022 B. Greg Wolff, Planning & Building Director; Renata Robles, Senior Planner; Diana Elrod, Housing Consultant
Housing Element Update – City of Lafayette 6th Cycle Housing Element housing plan to promote preservation and production of housing and housing opportunity sites identified to accommodate the mandated Regional Housing Needs Allocation of 2,114 units assigned to Lafayette, plus a buffer, which total approximately 3,000 new units between 2023-2031. The draft Housing Element Update can be found at www.planlafayette.org.
Recommendation: Conduct the public hearing, discuss and direct staff on policy matters regarding the Housing Element Update, including but not limited to, response to HCD’s letter, implementation programs, opportunity sites, and adoption schedule.
Planning and Building Director Greg Wolff gave the staff report and background of the direction by Council relating to the EIR and opportunity sites. GPAC, the Council and PC have all discussed opportunity sites as well as extensive public outreach and included BART in the first submission to HCD as an opportunity site.
At the last meeting, the Council discussed hurdles for including the site, and the Council directed staff to focus on a downtown-only option which was studied in the environmental analysis.
Staff’s focus will be to discuss the Housing Element implementation programs, the tiering of the downtown-only option and then touch base on the schedule as outlined in the staff report.
Senior Planner Renata Robles stated Ms. Elrod will provide a PowerPoint presentation regarding the programs involved for the Housing Element, two new opportunity site options which were presented in the staff report, as well as the projected timeline and next steps to get to Housing Element adoption prior to January 31, 2023.
Diana Elrod, Housing Consultant, gave a comprehensive PowerPoint regarding HCD’s comments about programs where staff made revisions. Each program received more definitive timelines for completion and HCD asks when recommendations will be implemented. Some programs were revised to include additional required information or actions which the State asked to move up in the program implementation plan because they were concerned they needed to be implemented earlier to receive maximum benefit, and there were new programs added required by law which are in red. Two programs were removed because of projected resource or time constraints. Because they added so many new programs and had to put together a timeline for each of them, staff is recommending some items be removed because they could still be considered but not as part of the Housing Element, and staff seeks Council feedback on the programs and timing.
Ms. Elrod then described the three programs which staff would like specific direction on: 1) lot consolidation fee waiver which would waive a $5400 application fee for multi-family projects to promote block consolidation; 2) Development of housing on City-owned parcels at 949 Moraga Road and 3501 Golden Gate Way; and 3) ADU fee reductions. Staff is proposing a temporary 50% reduction in development fees to see if this will generate more interest and reduce some hurdles. She then described the items removed from consideration in order to achieve the three programs, noting the first and second quarter of 2025 will be the heaviest lift of items to be worked on and said she was happy to answer questions.
City Council & Crime Prevention Commission Meeting Page 8 of 44 November 28, 2022 Ms. Robles said staff is looking to incorporate an inventory of parcels that can accommodate the City’s Regional Housing Needs Allocation of 2,114 units plus a buffer. As part of identifying these sites, they also need to identify densities of any parcels that need to be rezoned to meet this RHNA plus buffer. Once the Element is certified by HCD, that is when the rezoning process would take place.
Staff received direction at the previous meeting to exclude BART and DeSilva South from the inventory and identify alternative mechanisms to accommodate RHNA plus a buffer. The Chamber of Commerce provided a proposal that included DeSilva South but also opted to increase density in the outer areas of the downtown. The Council also requested to tier the density moving southward towards lower density neighborhoods to mitigate any impacts of increased building heights and view obstructions.
Two options are included for the Council’s review. Both exclude DeSilva South and BART, both accommodate RHNA and provide a sufficient buffer to comply with no net loss provisions, and these are all densities that would result in mid- or low-rise development, comparable to buildings in the City as a point of reference. Slides were also included as attachments to the staff report that show different examples of densities which were prepared in collaboration with a former GPAC member who is a real estate developer.
Option A has steeper decreases in the tiering of densities moving from the highway to the south, starting with 75 du/acre along the highway dropping down to 50 du/acre along Mt. Diablo and going lower in areas more proximate to established neighborhoods. Direction from the Council and PC was to retain 35 du/acre or a 3-4 story height along Mt. Diablo Boulevard and balance allocation of units across these areas and maintaining current densities in locations south of Mt. Diablo. She presented a summary table with densities and combined buffer for very low- and low-income categories which is about 20%.
Option B uses a more distributed density across the different planning areas and still retains 35 du/acre on the southern edge and increases density along Mt. Diablo Boulevard and the highway. She presented the summary table which shows area by area where each of the densities are and a 22% average buffer for the two income categories.
Staff is looking for questions and directions to further refine these recommendations and are happy to pursue additional analysis as needed. She presented and described the timeline from the staff report on steps taken and next steps for the Housing Element. Staff anticipates using the December 12th Council meeting and in the new year, staff would return to the PC and revisit the Council over the course of two meetings prior to submitting to HCD by the January 31st deadline. She clarified that the Council will need to certify the EIR and then adopt the Housing Element and project specific items.
Vice Mayor Anduri said the Council received quite a bit of public comment and he asked questions of the City Attorney and BBK attorney and City staff that will help clarify his understanding of some of the basic issues. He asked and confirmed with the City Attorney that the Council cannot approve the Housing Element until the EIR is certified.
City Council & Crime Prevention Commission Meeting Page 9 of 44 November 28, 2022 He said if the Council does not certify the EIR and approve the Housing Element before January 31st, he asked what risks does the City incur. City Attorney Subramanian referred to ‘builder’s remedy’ which is a provision in State law under the HAA that provides for a developer to submit an application for a project that is somewhat affordable at either 20% low-income units or 100% moderate income units, and that project does not need to comply with the City’s zoning or General Plan if the City does not have a Housing Element that is adopted by the Council by January 31st. This is one of the biggest implications of not complying with the deadline.
In addition, there are other potential risks such as numerous grants that require the City to have a compliant Housing Element which are tied to approval from HCD. These might not be as impacted by the January 31st deadline, but will start to be impacted the more delayed the City is in potentially submitting to HCD and getting HCD’s approval as that moves on. As well, if they do not comply with the deadlines, it can affect the timing for rezoning if the City does not have its Housing Element certified by HCD by May 31, 2023. The City would have 3 years to rezone parcels and if not done by that deadline, it is dropped to one year. Eventually, the City will have to rezone all of the parcels before they can have a compliant Housing Element.
Lastly, the City could be subject to lawsuits by either private parties and the Attorney General could also sue if the City does not have a compliant Housing Element.
Vice Mayor Anduri said if at this point the Council decides that an impact in the EIR is now significant, he asked if they would need to re-circulate the EIR. If so, he asked if they would be able to certify the EIR by January 31st.
Charity Schiller, BBK, responded and said yes, if the City were to identify a new significant impact at this time it would be one of the triggers for re-circulating the EIR because CEQA requires re-circulation of an EIR when significant new information is added. One of those circumstances is where a DEIR identifies a less than significant impact and a City wants to modify that conclusion to identify a significant impact.
With regard to timing, if the City were to change its conclusion that would require the CEQA expert consultant to do additional environmental analysis to update the EIR throughout. The City would then be required to circulate the revised portions of the EIR for a 45-day public comment period. Written responses to the comments received on that revised document would need to be prepared and at that time, the CEQA findings, Statement of Overriding Considerations and other items would need to be updated and the matter could be re-agendized for processing before the City. This is a process that would take several months at a minimum.
Vice Mayor Anduri said if the Council were to include opportunity sites in the very high fire hazard severity zone such as BART lots and DeSilva South site, he asked if the EIR would need to be revised. If so, he asked if the Council would be able to certify the EIR by January 31st.
Ms. Schiller said if the City were to include those sites for housing, to be consistent with the new Attorney General guidance, the analysis would need to be revised. This revision process would be in parallel and exactly the same as what she just described to the Council. In order to bring the EIR into compliance with that guidance, those revisions would need to take place.
City Council & Crime Prevention Commission Meeting Page 10 of 44 November 28, 2022 Vice Mayor Anduri said if they remove the BART sites from the opportunity sites and from the EIR project description and go on to approve the Housing Element and certify the EIR without them, and next year wants to adopt a transit overlay district for the BART lots, he asked if a new EIR or Supplemental EIR would be needed before they could adopt the overlay district for the BART lots.
Ms. Schiller said it is very common for cities to revise their project descriptions including their EIRs in response to comments and this is why you circulate the EIR for public comment and potentially modify the documents in response to those concerns. Here, if the City excluded the BART site from the EIR and from the Housing Element, the City would want to make sure its documents were clear and exclude those items from both the Housing Element and EIR. The Council could later come forward with a proposal to do an overlay zone or some other separate or independent action. At that point, it would be up to the city to determine what level of environmental review is required. It would likely be some form of Supplemental EIR or environmental review that tiers from or relies in part of the good work done in the City’s EIR. So, they would be looking at site specific analysis, potential impacts, mitigation, and it would likely be narrow and focused in scope.
Vice Mayor Anduri said the Council received a number of comments about what their neighboring city of Orinda has done. He understands Ms. Schiller has reviewed what they have done to the extent it is publicly available. He asked if they established custom thresholds in the Attorney General’s comments. Secondly, he understands they have found the wildfire evacuation impact to be substantial but unavoidable. He asked if that means they will be adopting a Statement of Overriding Consideration, and if this is the case, he asked to explain what the Statement of Overriding Consideration means.
Ms. Schiller said they reviewed the City of Orinda’s Housing Element EIR. They did not develop custom thresholds applicable to their city. Orinda did what most cities in California do. They looked at the CEQA guidelines and Appendix G questions that are posed as part of CEQA itself and imported those and used those as their thresholds. Those questions are exactly the same ones the City of Lafayette has used in its current EIR. So, to the extent Orinda and Lafayette are talking, it appears they took the same approach in terms of their EIR analysis.
The City of Orinda did arrive at a significant and unavoidable impact conclusion in their EIR. She clarified that whether an impact is significant or not is not a legal question. It is a factual one. It is very common for cities around the state to have very similar if not identical projects pending before them and for different cities to reach different significance conclusions. It is a factual call and the City of Orinda, in an abundance of caution, made its factual call and said it is significant and unavoidable. That means that when and if the City of Orinda adopts its Housing Element, they will be adopting a Statement of Overriding Considerations. What that means is the City will need to set forth all of the potentially significant and unavoidable impacts that they have and then they will need to identify the overriding considerations with the benefits of the Housing Element they think are important and outweigh those impacts. A Statement of Overriding Considerations is a process used by a city or other public agency to say they realize there are impacts here and are nonetheless approving this project.
City Council & Crime Prevention Commission Meeting Page 11 of 44 November 28, 2022 Ms. Schiller also mentioned that because the City of Orinda has a significant impact, they identified some mitigation measures in their EIR. Those mitigation measures are things that most cities around the State would impose as standard conditions of approval or may already be required by law. There are things such as having fire extinguishers on site during project construction, ensuring adequate fire flow is available in the event of wildfire, and things like that. They are not site-specific so she thinks the City of Orinda would anticipate that if and when it adopts its Housing Element it will continue to look at mitigation options as any site-specific proposal.
Mayor Gerringer said it was noted that there is a grace period, and she questioned this and what it does to things like the builder’s remedy. Ms. Subramanian said there is no grace period. The deadline for the Council to adopt the Housing Element is January 31, 2023 and avoid builder’s remedy. The Government Code 65587 provides for no extensions of time by the Director of Planning and Research.
Councilmember Candell referred to the BART lots and said Ms. Schiller said they would have a Supplemental EIR if they chose to certify the Housing Element now. She asked how that works because her impression is they will completely remove the BART lots and DeSilva South as well and no mention of them in the FEIR.
Ms. Schiller explained that to the extent the City brings forward a proposal at a later time, what CEQA says is to the extent that the impacts of that proposal have already been considered in a prior CEQA document, if the City wishes to modify a proposal or action, they do not have to go back and redo environmental analysis that has already been done. So, to the extent they are removing the BART lots or other areas from this EIR and Housing Element, there would need to be the re-introduction of those items, the analysis of those items with regard to fire risk or other impacts but there may be some areas that are adequately covered in general by the existing EIR. So, if there are, the City would not need to duplicate that analysis.
The City could choose to utilize the same consultant or a different consultant because it is a factual analysis and not really a legal one. The City is not necessarily tied to reusing the same environmental team, but this tends to be rather efficient to do so.
Councilmember Candell said if the Council has a FEIR and they face some legal opposition to it because they are not declaring it significant and unavoidable, they have risk such as being sued. If they do not recirculate it and just adopt it without re-circulating as if they were just responding to comments she asked what sort of exposure the City would be under if they do not re-circulate.
Ms. Schiller said as this Council is aware, any time the City takes discretionary action there is the potential for litigation so there is not really a situation where the Council will necessarily eliminate all potential litigation risk. If the City were to certify its EIR as it now stands and it faces litigation, she thinks this Council has been apprised of the potential that what they anticipate happening is that the Attorney General guidance would be brought forward and examples of the City’s existing analysis and how and to what extent it stacks up against that guidance would certainly be part of any litigation. So, this is the primary area of focus and this is why they have been talking about fire-related hazards.
Councilmember Candell asked what happens if they change the designation to be significant and unavoidable, include all the things AG Bonta’s letter put in, not allow evacuation times to get any longer than they are now, and include AG Bonta’s mitigations as well and not re-circulate it. She asked what kind of legal exposure the City has with this situation.
City Council & Crime Prevention Commission Meeting Page 12 of 44 November 28, 2022 Ms. Schiller said one will be a timing issue as far as how long it may take the consulting team to do that work and that is not a light lift. On the litigation exposure side of things, she thinks what they will see are arguments related to re-circulation. Certain commentors have already asserted their re-circulation is necessary now even without changing the significance conclusion. Were the Council to change that conclusion and add mitigation and identify a significant and unavoidable impact, under CEQA guidelines, that is one of the circumstances that necessitate re-circulation of the EIR. So, there is the potential for legal challenge for failing to re-circulate.
Councilmember Candell said assuming they got the wording in time and did everything by January 31st, she asked how that would affect the legitimacy of their self-certification of the EIR and Housing Element.
Ms. Schiller said the City could still certify the EIR. It is just that if the City faced litigation or someone disagreed with the approach taken by the City on this issue or any other issue, one of the arguments they may make is that the City added a new significant impact without re-circulating the EIR and that this is a procedural violation of CEQA. That is the argument they would make.
Ms. Subramanian said she was trying to get to Councilmember Candell’s point where she thinks the next step is that the remedy for anyone who would challenge the City’s EIR for failure to re-circulate is to unwind the approval of the Housing Element.
Ms. Schiller apologized and said this is correct. The outcome of the successful CEQA challenge is an Order from the court that rescinds the City’s approval of its Housing Element and certification of the EIR.
Councilmember Candell asked what happens if the City gets sued if they certify it now. Ms. Schiller said there is a risk of litigation with regard to any option taken by the City.
Councilmember Candell said citizens would have standing to sue the City. She asked who would have the standing to be able to sue the City if they did not re-circulate it. Ms. Schiller said anyone who has commented on the EIR and objected at any point in this process would have standing to sue. If that was the desire of the State, the AG could also intervene in any lawsuit.
Councilmember Candell asked if they are removing in the EIR any mention of BART and DeSilva if they went ahead with the option staff recommends tonight. Mr. Wolff said based upon the Council’s direction at the last meeting, staff directed the environmental consultant to draft revisions, including revising the Project Description or the project the City would take action on to eliminate those areas in very high fire hazard severity zones.
So, the draft document which has already been published would not be revised to eliminate each and every sentence or reference to the analyses done to date; however, the Project Description would be revised. Any action based on that revision to the Project Description would be limited to that description.
Any subsequent action by the City related to the BART sites and zoning, the future TOD consideration for zoning would require some form of additional CEQA analysis, addendum or other appropriate document.
To be clear, they would not be starting a new draft EIR and striking every reference and analysis to areas that are in very high fire hazard severity zones. She said she is under the impression that downtown Orinda is not in a very high fire hazard severity zone even though they declared it significant and unavoidable.
City Council & Crime Prevention Commission Meeting Page 13 of 44 November 28, 2022 Ms. Schiller said she has not done a detailed review of Orinda’s map, but they do have a map showing high fire hazard severity zones and it appears that some of their opportunity sites either abut or partially overlap a portion of those zones. In an abundance of caution, they did say it is a potentially significant impact.
Councilmember Kwok referred to the Orinda example where they read the description of the impact on evacuation planning for wildfires and they came to a conclusion of a significant and unavoidable impact finding. Ms. Schiller said they would need to come up with a Statement of Overriding Consideration to move forward, and he asked if this is correct.
Ms. Schiller said yes, this is correct. If they wish to approve their Housing Element, Orinda will need to adopt a Statement of Overriding Considerations.
Councilmember Kwok said hypothetically, for Lafayette and if they built on the BART lots, there has been a lot of community concerns with coming to a finding for significant and unavoidable impacts for emergency evacuation, a finding they have not yet found. If they were to come to that conclusion and then said they agree it is significant and unavoidable and move forward and make a Statement of Overriding Consideration and move forward anyway, he asked if there is any obligation of a future BART developer to try to mitigate for emergency preparedness or he asked if the “train has already left the station” and they have no obligation because it is not mitigatable.
Ms. Schiller said if the project is consistent with the Housing Element and they are proposing to build exactly in the manner identified in the EIR and consistent with the mitigation measures, they would be able to proceed unless there is new information showing there is new mitigation feasible for their particular project. So, there is an obligation on all public agencies before they take subsequent discretionary actions to consider whether there is new information, new technology, new mitigation that happens to be available and feasible for a site-specific activity that can be imposed to reduce an impact.
So, a developer in consultation with the City would need to at least consider that.
Councilmember Dawson said if there was development at BART deemed as insignificant and if the City put the overlay district in place, she asked if that will preclude the supplemental or project-specific EIR for the BART development later. Ms. Schiller said in that situation there would be two opportunities to consider feasible mitigation. One would be if and when the City proposes an overlay, the Council would undertake whatever CEQA process is appropriate at that time. That might include identification of potential impacts, new mitigation, etc. Then subsequent to that, if a site-specific proposal is brought in that has impacts of its own, the City would again have the obligation to consider what type of CEQA is needed for the proposal, does it have impacts different or unique from those previously disclosed by the City, is there mitigation for those impacts. So, there is a step-wise analysis and multiple opportunities to impose potential mitigation.
Councilmember Kwok said on a totally different topic, Ms. Elrod asked the Council to opine on three different topics; one related to City owned parcels. In the PowerPoint, she showed two properties but in the staff report there were three properties listed.
City Council & Crime Prevention Commission Meeting Page 14 of 44 November 28, 2022 Mr. Wolff said staff discussed this earlier today and the third property referenced in the staff report which is the northwest corner of Mt. Diablo Boulevard and Oak Hill Road is a City-owned property. Initially, it was identified as a contending opportunity site 3-4 which was presented to GPAC. Through the public process with GPAC in March, they took votes on each of the sites and this fell into the category of not supported because ultimately it was less than one-half acre in size and had no net benefit to inclusion with respect to accommodating any below market rate RHNA allocation. Staff is asking for direction on the Golden Gate Way City-owned Oakbridge parking lot and 949 Moraga Road.
Vice Mayor Anduri said in follow-up, the Park Theater adjacent to the parking lot is 4-2 and he asked what is the site I.D. number for 949 Moraga Road. Mr. Wolff said he will return with an answer.
Vice Mayor Anduri said in Inclusive Lafayette’s recommendation on the last page of their letter is that the Council explore a resolution to waive impact fees for 100% affordable housing. He wondered if staff had considered this in the past or whether it is a new suggestion and what are the implications.
Mr. Wolff said he thinks to date, the City has less than a handful of 100% affordable projects, the most recent being the Eden Housing project, Belle Terre of very low-income units. He did not recall what the City did specifically relating to impact fees for that project. He does not recall what the City did specifically with respect to impact fees; however, the City contributed multiple millions from their RDA housing setaside fund. The City has not considered this as a broad policy or implementation program, but they could, and he would advocate they do that for projects serving very-low and low-income 100% projects. If there is 100% moderate income, there is room for a fee reduction, but perhaps not a full 100% waiver.
Vice Mayor Anduri said the Council saw photographs of buildings as examples of density. He asked what is the du/acre for Town Center III. Mr. Wolff said he will return with this answer, as well.
Ms. Elrod suggested, and the Mayor reminded people that Items C.1, 2, 3 and 4 will be recommended for continuation to the March 27, 2023 meeting.
BREAK
Mayor Gerringer called for a break at 7:53 p.m. and thereafter reconvened the meeting at 7:59 p.m.
Mayor Gerringer opened the public comment period.
ELIOT HUDSON said he understands the Council is afraid of the builder’s remedy, understands the Council is likely to adopt a plan designed to gain certification as disastrous as that plan might be, but if the Council does this, he asked to protect the town to the maximum extent possible. He asked not to submit a single plan to HCD. He asked to go to HCD with two or three ranked plans to give HCD an option as to which one they can certify. Rank the plans according to the City’s preference and indicate this preference, with the disastrous plan being the last option The first option should be the City get credit for BART and explain the legal reasoning behind it. AB 2923 is there and if BART decides to develop, the City cannot stop it. So, he asked to include BART in the first choice and argue the City should get credit irrespective of BART’s plans. He said no one has explained or made the argument and HCD might agree and it never hurts to ask. The second reason is critical—do not take BART off the table and give HCD the option to contend the City withdrew that argument. Including that option creates a record that can be used in the event of any litigation that challenges HCD’s denial of BART lot credit.
City Council & Crime Prevention Commission Meeting Page 15 of 44 November 28, 2022 A second option could be the argument that HCD should reduce the allocation or any other plan that meets existing RHNA numbers but is less disastrous. The disaster doomsday option should be the last one.
Tell HCD that if it is not going to certify the preferred plan, it can certify the plan that destroys Lafayette.
He said the City has nothing to lose by preventing alternative plans. He asked to immediately start drafting architectural design standards as they have been asked to do for months now. Finally, any rezoning should be conditional to automatically revert if it is no longer legally required and it should apply to the entire plan area.
Vice Mayor Anduri said in this scenario, he asked how he would handle the EIR. Mr. Hudson deferred to Mr. Sommer but there is no limit on the number of options the City could propose to HCD He thinks it is absurd to say the fire risk here is not significant.
Vice Mayor Anduri said if it was the first option with the BART lot included the City submitted, he asked how Mr. Hudson would handle the EIR. Mr. Hudson said he thinks the impacts are significant and unavoidable and the City should require mitigations. If the only alternative is to adopt a Statement of Overriding Consideration, they could but he again would defer to Mr. Sommer.
ALON YU questioned why only Councilmember Candell understands why this is an emotional and significant problem for residents. It is a life safety issue and not a NIMBY issue. Errors have been pointed out by two land use attorneys in their written remarks and they are very familiar with Housing Element, EIRs and CEQA matters. Mr. Hudson’s comments strongly point out why this is such a significant issue to the residents living in the Glen. He asked to hear other Councilmembers’ reasons why they would decline the life safety issue, noted owners can now build ADUs which will increase the population, and asked to declare the Glen is a significant fire hazard severity zone.
ALISON HILL thanked the Council, staff, and consultants for their work on such a massive task, appreciates Vice Mayor Anduri’s clarifications and questions, supports additional housing in the City, voiced concerns with all housing being concentrated in the downtown, especially between Mt. Diablo Boulevard and Hwy 24, and suggested it be more spread out. She agrees with Inclusive Lafayette’s letter, appreciates what the Council is doing to make this work and doing what is in the City’s best interest to achieve a certified Housing Element.
GABRIEL LIAV NEWMAN said he lives in an apartment on Carol Lane, spoke in favor of higher density in the east and south side of the downtown corridor, noticed there is no change in density of 35 du/acre in either plan, thinks this is a great opportunity for a more walkable area which would contribute to better sense of space and community in this area, and thanked the Council and staff for their work.
WILL LOVITT said he lives in the Glen, was happy to hear the opinion that CEQA was not meant to just generate paper, said Patti Battersby cannot be here tonight, reiterated Mr. Hudson’s comment as to whether or not it is feasible to present more than one plan, asked that this be done and noted the problem is the City has been assigned way too many units in their RHNA because the City has BART.
MAX HENINGER said Inclusive Lafayette submitted a letter, thanked the Council for removing BART from the Housing Element, encouraged further engagement with BART staff, said of the two site inventory options he thinks Option B is the better choice and they submitted some modifications outlined in their letter. Option A overly concentrates the low-income housing along the freeway opening an AFFH challenge as well as some fairness issues.
City Council & Crime Prevention Commission Meeting Page 16 of 44 November 28, 2022 Their letter also outlined policy recommendations that would improve the plan and make it more likely for HCD approval in their next review. Regarding the development on publicly owned sites, 949 Moraga Road is a great choice. 3501 Golden Gate Way has some challenges as a creek runs through it, and staff should demonstrate how the creek and its setback constraints would be remedied. Otherwise, it should not be included, along with the parking lot at the corner of Mt. Diablo and Oak Hill which sounds like is not being proposed. His other point is that the timeline for the proposal is very long and it takes a long time to get affordable housing funding. He also thanked the Council for waiving impact fees which will make a difference.
MICHAEL GRIFFITHS said he knows it is challenging to balance the needs of the residents and requirements put upon the City from HCD. The Council rejected at its last meeting more than 18 months of hard work on the Housing Element by GPAC, the PC, and residents, did not include BART or the DeSilva property but instead is recommending adding around 3,000 units in the downtown. This decision was made in the face of 95% of survey responses from residents who rejected urbanizing Lafayette and also by disregarding the mission statement. The high wildfire risk within the Happy Valley Glen also remains unaddressed. He encouraged the Council to represent the wishes of its residents, consider other options available that would avoid upzoning of downtown, yet satisfy the RHNA requirement without missing the January 31st deadline.
JEFFREY STONE, Diamond Construction, said he is currently building out Lucas Ranch, 3742 Mt. Diablo, 950 Huff, and he currently has a 54-unit project at 1001, 1003, 1005 and 1009 being merged together at Oak Hill which is the first project when entering the City. The RHNA is incredibly challenging and empathized with the Council and staff, given they are a balancing act for which the housing shortage has put them in. Program 6.1.E; a $5400 application waiver does not make a difference in a $50 million decision. If the Council istrying to incentivize developers to merge lots so they get the proper parking and density on these types of projects, the Council needs to properly incentivize them and their neighbors to work together to see how a joint contiguous conversation can lead to a better development for the City.
He thinks staff has done an outstanding job trying to balance the units he personally feels should be associated with BART. It is unfortunate what is seen happening with those 800 units, but as such and with those allocations, Option A and B are on the table for the Council. He asked to consider height, parking, setbacks, type of construction, rental or sale, and traffic and circulation impacts of each of the plans.
Option A will lead to a much higher density Type 1 construction of 8 to 10 story buildings to satisfy the density to get to 75 du/acre. He has a project at Oak Hill for 54 units at 6 stories which is already causing heartburn in the City, and he is at 35 du/acre plus his density bonus utilizing SB 330 application. Option B is a better distributed model that will lead to less height within those corridors which will not put them in the situation as if they are driving down Mt. Diablo with 5 and 6 story buildings standing tall to catch the impacts. The other area he encouraged the Council to analyze and understand is that when they are designing these sites they are parking them first. They do not have large enough sites to park these types of projects so as the Council continues to make judgment calls in thinking about future Housing Element updates, he asked to consider height, parking, circulation, and setbacks in those decisions so developers have an opportunity to deliver on their plans.
Councilmember Kwok thanked Mr. Stone for his comments. He asked for clarification regarding the cost of building taller buildings such as 8 versus 5 stories. In the staff report it indicates that the taller buildings cost more per square foot. If the City is trying to hit their affordability targets, he wondered if it is harder to hit when building a taller building.
City Council & Crime Prevention Commission Meeting Page 17 of 44 November 28, 2022 Mr. Stone said they talk about it in Type 3 (950 Huff with a 2-hour firewall in the exterior and fire materials built in plywood which costs more money), Type 5 (podium with one hour fire walls above which is a standard project of 5 stories), and Type 1 construction (steel and concrete building seen in high rise towners which is by far the most expensive to build here). When getting over 8 stories, they get Type 3 which is typically what is seen as a 3-story podium with 5 stories of housing above. Once above that, you get to Type 1 construction. In analyzing sites to satisfy the topography, the issue is they do not have a fire ladder. The closest one is in Walnut Creek and the onus is put back on developers to build to a higher fire code so compliance is associated with the response that Contra Costa Fire District can respond to, meaning the cost of construction is being passed to them as developers. This makes it more difficult to build inclusionary housing because it is yet another anchor on their underwriting.
Councilmember Kwok asked what is the cost per square foot for Lafayette for Type 5 versus Type 3 construction. Mr. Stone said it is difficult to gauge, but in looking at flat sites and how they are underwriting Type 5, it is $400 to $500 per square foot, and $450 to $600 per square foot for Type 3, and much more costly for Type 1.
Councilmember Candell referred to the height limit and setbacks and asked Mr. Stone to explain how that plays out with the density bonus laws. If the Council were to regulate those things, she asked what they could do that is enforceable.
Mr. Stone said with this density the Council is passing, he doubts they can even build to that density on most of these sites based off of the parking ratios they will not be able to satisfy which would require them to go subterranean which would be unaffordable for them to underwrite the project. So, the concessions and waivers they would look at would be to maximize the gross footprint of the building to provide the greatest amount of net sellable or net rentable square footage with commercial terms in mind of how many parking stalls do they need to provide today per unit. Developers doing something for sale are looking at when they are getting to revenue, and for the Lafayette marketplace, they have to have some sort of parking stalls. On most narrow sites, they can barely park them already and this is why merging them is so necessary to get a double-wide stall to get enough stalls with lifts in it so they can have a buildable project. The reason that is important is they will continue to lose retail down their core because they will become parking garages at grade and they will continue to build as tall and flat buildings where the net rentable sellable square footage to these larger developers is all they care about, and the exterior face of the building does not bother them because they are just trying to get to that sellable rentable space.
Councilmember Candell asked and confirmed with Mr. Stone that the market is self-imposing parking.
She said the City cannot control any of the things he is asking the City to control. Mr. Stone said he is asking that the Council follow the Housing Element update, to follow RHNA sites, to pick one over another and when you look at parking, height, and setbacks, he asked if the City can fully understand and empathize with developers with what they are looking at in their own process so they can envision what this will look like in 10 years from now when there is another Housing Element update because they have not reached the number of units the Governor wants them to hit.
City Council & Crime Prevention Commission Meeting Page 18 of 44 November 28, 2022 Councilmember Candell asked Mr. Stone what is his impression of BART and she asked if he would have supported the City including it in this cycle. Mr. Stone said yes, he would. Mr. Hudson brings up a good point as well. It is very unfortunate for the City and unfair, unbalanced, and it is going to continue to be legislatively unfair for local municipalities because of where the State finds itself with the housing shortage. He thinks Mr. Hudson brings up a good potential and thinks it is at least reserving some sort of rights down the line if the City needs to appeal some sort of decision of HCD.
Vice Mayor Anduri said if the Council were to include BART in an approved Housing Element, he asked how he would handle the EIR. Mr. Stone said this would be a question he would ask his attorney. Frankly, he just tried to qualify for a 32 Exclusion on Oak Hill, yet he still had to spend about $135,000 on supporting documentation on how his project fell under the existing EIR. So, it is still an onus that will continue to evolve on the process after this Housing Element is updated, but from a timing sense of this it is his most nervous side that someone will come in and use the builder’s remedy against Lafayette. He is very well aware of the builder’s remedy, is well aware of the possibility for a developer to build a high rise in Lafayette, and he thinks staff is doing a very good job making the community, Council and Commissions understand that they need to do something to at least qualify and move this process forward. Otherwise, they might fully lose control of how they see the City developed. In that EIR, he thinks the City needs to show the process moving forward but was not sure strategically what the Council should do.
ERIC LAW said in listening to Mr. Stone talk about how developers work, he changed his comments. He pointed out that developers have been demonized by NIMBYs in town and as Mr. Stone has shown, they are very smart businesspeople looking to make money by solving a problem. That problem they are solving is building housing that people need. The State has a horrible housing shortage and across the country. It is a supply and demand problem. Unfortunately, government agencies are constrained with supply of parcels and availability of real estate to build on which has resulted in a housing problem. He asked the City to upzone as much land as it can around the downtown corridor. By upzoning here, it minimizes the amount of that building that goes towards parking and focuses on housing. Downtown retail is about 25% vacant right now because people are shopping on-line. The only way to save that retail is to increase the number of people who live downtown.
He also asked that the Council include the BART lots because they sit empty about 75% of the time over an entire year. They are a complete waste of real estate, are an eyesore, an environmental disaster, and the Council should include them as an opportunity. He also recommended the City Council spend more time with developers like Jeff Stone. The City of Emeryville has an excellent track record of working with developers to reduce costs, reduce delays, reduce uncertainty, and work to solve problems of building more housing. The City of Emeryville has done such a great job that they get bonuses, extra money from the State, do not get mandatory requirements, builder’s remedies forced down their throats because they are progressive and work ahead of time. Lastly, he asked to upzone all of the downtown, save the City hundreds of hours of time and if not, the plan will get rejected, and do the right thing for the town, the planet, and solve the problem at hand.
Councilmember Candell asked how Mr. Law would resolve their EIR problem with BART lots if he wants the City to include them. Mr. Law said he would bring the people in who are threatening the lawsuit and say stop. Attorneys do not solve any problems. They have to grow and need more housing. Ask them if they want to join the City at the table as part of that solution. What does it take to mitigate risk and what are those real risks? Unfortunately, there have been some red herrings where people have brought up fire safety. Living in California brings a natural fire risk, and he has been chased by fires on his bicycle, out of houses, and it happens. The most important thing is that you do not stay behind, and you evacuate.
City Council & Crime Prevention Commission Meeting Page 19 of 44 November 28, 2022 The sites that are available are right next to the freeway and those people will be long gone before folks in the hills load up their SUVs and even make it down there. He thinks it is important to look at what the real risks are here and understand and use the data to drive those decisions. He thinks what they will find is when they do the EIR on those lots there is little risk to those folks actually delaying fire risk for those coming out of the hills. If you generate a model of evacuation route times, those down in the flats and close to the freeway will be long gone.
Councilmember Candell said it is interesting Mr. Law said they need more people living downtown for retail. She asked then why the Chamber of Commerce is so against it and are saying the opposite. Mr.
Law said he has not read or seen their comments so he would find that a bit ironic. The retail is already disappearing, and major properties are empty. So, he thinks some folks have not realized what the driver of downtown retail is.
DAVID CLARK said he thinks they have overstated builder’s remedy with respect to the submission on January 31st. What keeps builder’s remedy at bay is substantial compliance. So, filing on time is important but if the City files something substantially compliant on time, he thinks that is the best of both worlds.
There is a government code section he tried to point out recently that is relatively new; Section 65588(e)(4)(C)(iii) which reads, “A jurisdiction that adopts a Housing Element more than one year after the statutory deadline shall not be found in substantial compliance with this article until it has completed the rezoning required in (a reference).” The negative implication of that section is that a court would look at that as not being substantially compliant.
Therefore, there is an argument that something that falls outside of that is, from a legal perspective, substantially compliant. So, if the City can submit something to HCD that is substantially compliant by the filing date and continues to be substantially compliant until it is finally adopted, it seems there is a window to submit updates. So, he would say is to begin the re-circulation process as of now, and either self-certify so there is something to file with the Housing Element submission on January 31st. Ms. Schiller said the re-circulation process may take a couple of months to complete, so they might be close to doing it on time. They could then substitute the re-circulated version for the self-certified version whenever that is and move forward with that.
Councilmember Candell asked what Mr. Clark would put in the EIR that they would self-certify at the end of January.
Mr. Clark said ideally, significant and unavoidable if that is possible.
Councilmember Candell asked what if they had it the way it is today. It is still significant and unavoidable, but they are re-circulating it that changes it to significant and unavoidable in March.
Mr. Clark said he thinks the insignificant is not the one the City wants, but he thinks it is substantially compliant. So, therefore, it holds off the builder’s remedy and while not perfect, there is some wiggle room there.
City Council & Crime Prevention Commission Meeting Page 20 of 44 November 28, 2022 LIBBY HENRY said some of the mis-information that is being presented here tonight by people is very bothersome to her, including saying there is a housing crisis. There is no housing shortage in the State of California. As far as vacancies, San Francisco has an almost 10% vacancy rate in their residential. She knows the City is stuck between a rock and a hard place and the City was given its RHNA numbers before the AG’s report came out, so she asked if it stands to reason that if they are in that report saying the City cannot use the BART parking lots because they are in the high fire hazard severity zone, then it should also stand to reason in her mind they should also be able to reduce their RHNA numbers. RHNA numbers throughout the State have been proven to be invalid, over-inflated, and challenged. She said the amount of buffer staff keeps pushing is ridiculous. She asked for a compromise instead of all of the BART parking lots or nothing and questioned why there cannot be 400 versus 800 units and also a reduction in their RHNA numbers because of the AG’s report.
Mrs. Sommer ceded her time to Scott Sommer.
SCOTT SOMMER said within comments made from legal counsel in response to Vice Mayor Anduri’s questions, there are several corrections. One was Orinda would have to adopt overriding considerations to approve its Housing Element EIR, which is wrong. The way it works under CEQA Public Resource Code 21081 is that if there a significant effect on the environment the public agency is supposed to under A(1) adopt changes or alterations or incorporate them into the project which mitigate or avoid the significant effects on the environment. There are several other sections and only in (3) do you get into infeasible for various other social, etc. considerations, and only on (3) do you do an overriding consideration. What you do is adopt mitigation. In looking at page 12 of the AG’s memo, it states, “If the project presents significant increased wildfire risks and/or evacuation and access impacts CEQA requires the lead agency to consider and adopt feasible alternatives and mitigation measures to avoid or reduce….” The AG’s memo continues, “To avoid error, the Project EIR should first analyze the increased wildfire risks and evacuation impacts and then consider feasible mitigation and alternatives to avoid or reduce those impacts.” On the next page, the AG provides a list of mitigation measures to reduce that down. So, the idea that Orinda adopts A Statement of Overriding Considerations to approve their EIR is wrong. In looking at the Orinda EIR, it goes through the whole analysis of “The project would increase the exposure of new residential development to risk of loss or damage from wildfire which would be a significant impact. Therefore, mitigation measures would be required.” It is not an automatic overriding consideration as there would be no point to mitigation measures if the answer the Council got was correct.
Another one was on re-circulation. The Council was told that declaring wildfire to be a significant unavoidable impact would require re-circulation. This is governed by CEQA guideline 15088.5A; it lists several things under A(3): “It is only if the project proponent (or City) declines measures that trigger recirculation (which is not happening if the City does it)” and A(4) is “Whether mitigation measures were presented in such a way that meaningful public review and comment were precluded.” He said they have been discussing and public speakers have addressed for two months now wildfire evacuation. It was not precluded. In the email he provided a link to the 2020 court case that goes to exactly what re-circulation means which is on page 21 in his email regarding “When circulation is required”.
City Council & Crime Prevention Commission Meeting Page 21 of 44 November 28, 2022 Re-circulation is not required simply because new information is added, which he described. New information added to an EIR is not significant unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment. So, re-circulation is not required if you go out and say in response to the issue of wildfire evacuation that it is significant. The City does not have the same approach as Moraga or Orinda. Lafayette’s EIR went through a very short analysis saying because the City would periodically update its response and evacuation plans under AB 747, that made it less than significant.
Orinda and Moraga did not do that, and it is flawed because under 15162.4, there is a requirement that you cannot defer those mitigation measures. They must be adopted with performance standards, etc.
He would also add that he looked at Moraga’s EIR tonight and they did exactly what Orinda did. So, the Council now has the AG’s memo, all of his letters, public comments, the Orinda and Moraga EIR and all the things the AG is telling the Council. The message should be that it has to be significant. It won’t require re-circulation and what you are overlooking is that this flaw under wildfire evacuation whether it would take BART out or not still taints this DEIR. The City cannot fix that problem and he included why this is in the letters. The City is not fixing the CEQA problem by going forward with what seems to be the plan of taking BART out. He suggested the solution is to do a simple statement that 15126.4 requires that those mitigation measures be listed. It is significant and the City can make the changes from the AG’s memo and the Orinda EIR, etc. and that solves the CEQA problem. How to handle the Housing Element he will leave to others. Right now, the City is facing a major flawed document that has not fixed the original problem he began to call attention to back in September.
Councilmember Kwok thanked Mr. Sommer for writing his email at 11:00 a.m. and his link to the Orinda documents. The Council is focused on how they would pass an EIR in time to submit by January 31st.
Councilmember Kwok referred to Mr. Sommer’s comment that the City could come to a finding of significance because they have not come to that before.
In order to come to such a finding of significance, Councilmember Kwok asked if it was Mr. Sommer’s view that the City would or would not, according to AG Bonta’s memo, need to establish a “threshold of significance” in order for the Council to say the City is above that threshold of significance. He asked if they would have to conduct a study and hire consultants to establish a threshold of significance? Mr. Sommer said what Councilmember Kwok is asking about is the part of 15162.4 that talks about performance standards or thresholds of significance. He does not think the City needs a study to do that.
If you look at Orinda, they are using a “non-degradation” standard. Everyone knows that as bad as Happy Valley Glen is, if someone were to build a second evacuation route, it could be found and notwithstanding 800 units at BART there still is an adequate evacuation route. There may be much more inexpensive measures that would do that, but it is just a question of time and money. The statement the Council goes into an EIR is very similar to what Orinda does, what the Bonta memo says. It is not that it is significant and unavoidable. In fact, he goes through the column and ask if it is significant, potentially significant unless mitigation incorporated, which is what Orinda is doing.
City Council & Crime Prevention Commission Meeting Page 22 of 44 November 28, 2022 The City should be saying not that it is significant and unavoidable, period, but is it significant and unavoidable unless mitigation measures are incorporated, and that brings the City to the Project EIR stage where BART or a different developer comes in and says they want to build. That is where that Project EIR, building on the finding of significance, determines are there mitigation measures or not. He thinks that is the solution the Council is looking for. They obviously have to have more housing and also does not want to create dangerous conditions for citizens who live in Happy Valley Glen, so this is the answer—it is not unavoidable period, but go through the mitigation process and list the items. He does not think the City needs a study but just needs to say they have a threshold of non-degradation.
Councilmember Kwok referred to Mr. Sommer’s statement that “Orinda does not have to come to a finding of significant and unavoidable.” Orinda actually said: “here are the wildfire challenges and here are the things Orinda will do to mitigate, 1 through 5.” But each of the conclusions Councilmember Kwok read after those sections concluded “this is significant but unmitigatable”, so Orinda is moving forward to a finding of Overriding Consideration in saying they will not actually mitigate against those risks. He does not think Lafayette’s situation is the same as Orinda.
Mr. Sommer said he does not read their EIR quite that narrowly. In going through the various sections, they simply say that mitigation measures would be required. Whether those are going to work or not none of them can say now. It depends on where the project is, how big it is, the configuration, road situation, etc. He does not think Orinda is saying it is unavoidable period. He thinks they are saying and going through the list on page 4.14-19; “Mitigation measures would be required” and that is as far a Program EIR can go with it. Hopefully, a developer would come in and say they can mitigate OR (based on the Bonta memo, page 12, Section D, first sentence) “Project presents significant increased wildfire risk, etc., …requires the lead agency to consider and adopt alternatives and mitigation measures to avoid or reduce the project’s impacts or make a finding of overriding considerations.” It is a choice. Hopefully, the City would not just default right to the overriding considerations which is what he thinks he heard the attorney say. That is the process he is encouraging. It is there in procedure and an EIR to go through whether they can take a significant impact and reduce it to insignificant with a variety of mitigation measures.
Councilmember Kwok said he would share later the Orinda EIR document Mr. Sommer referenced to him.
Councilmember Kwok has highlighted one after another the conclusions that these wildfire impacts would be “significant and unavoidable”, and cannot find the language Mr. Sommer references. Councilmember Kwok thinks Orinda actually came to the conclusion that “These impacts would be significant and unavoidable.”
Councilmember Kwok asked another question relating to specific performance standards and read the link where perhaps that when an agency submits an EIR it may not have to re-circulation if you do three things: 1) the City commits to mitigation; 2) that they adopt specific performance standards. Whether they hire a consultant to establish what Mr. Sommer suggested, no degradation or zero reduction in evacuation time or whether they say 10% or 20% or 50% is a threshold they could live under; and 3) You must also identify the types of potential actions that can feasibly achieve that performance standard. This third one is the one that is hard for Councilmember Kwok to figure out—he wondered how would the City do all of that by January 31st, especially number 3, to prove they could establish a standard and then have mitigations under which they would fall under the standard? City Council & Crime Prevention Commission Meeting Page 23 of 44 November 28, 2022 Mr. Sommer said subpart 3 under CEQA guidelines 15126.4 which he has cited over and over, is the list of mitigation measures. The AG memo from November 1st has about a dozen bullet points and that is what 3 is; a list of mitigation measures. Orinda came up with their own short list, and that is the answer to what that is about.
Councilmember Kwok observed “you have to apply the list of mitigation measures in a way that it achieves the performance standard.” He asked for clarification that it is not enough for the City to just have the list and say they will do it, but rather they have to prove the list of mitigations actually achieves the standard established.
Mr. Sommer said this is correct, he concurs. What 2 says is that you adopt a performance standard or a threshold of significance, but basically it issome standard you will hold it to. It could be a relaxed standard, and he happens to think “no material impact on wildfire evacuation time” should be the standard unless you had a City expert and not a developer consultant certify that it is still a safe evacuation plan for that particular neighborhood. This is where housing objectives and the RHNA HCD process and the safety of residents all coincide.
Councilmember Candell asked Mr. Sommer thinks they could get those changes in a reasonable amount of time. Even if their current attorney does not have the bandwidth to do it, she asked if there were other attorneys that could do it in time for the January 31st adoption without re-circulation.
Mr. Sommer said he does not think re-circulation is needed so the time period goes away. He also does not think the threshold of significance or performance standard is particularly complicated. He does not think a study is needed for that. The City could just adopt a non-degradation standard, so he thinks the City can meet the deadline. The alternative to avoid the lawsuits is that there is a CEQA challenge whether you take BART out or not, whereas if the City declare the DEIR statement about AB 747 is incorrect, which it is, and moot the issue by saying it is significant, he thinks this is the best answer for the CEQA dilemma.
He will leave the Housing Element to Mr. Hudson and others who suggested an approach.
He said he also thinks that CEQA has a very short step to limitations. It is 30 days. Once notice is given and once certified, if no one files a suit in 30 days it is now time barred, so the City does not have to wait to see if someone is going to challenge this. So, it is a manageable risk the Council should keep in perspective, as he seriously doubts someone will challenge the finding of significance. He thinks the Council should include the properties it likes as appropriate and hopefully the 30 days run and if not, they can go back and take mitigation steps. It would be better to adopt it soon and get the time running, and they could always go back and re-adopt something else if they chose to do so. He has told clients to go and cure the CEQA issues whether they think they are right or not just to avoid litigation.
Vice Mayor Anduri asked Mr. Sommer to elaborate on the statement that the City will have a CEQA challenge whether they leave BART in or take it out.
Mr. Sommer said a defect in a draft EIR is that section on page 4.17-11 which said “residential project….and then it talks about AB 747. Regardless of BART and the downtown, etc., that will not survive a CEQA challenge because it does not work under 15126.4. This is in one of the emails, but in looking at Appendix G, XX, the Council is supposed to have studied everything near the fire hazard severity zone that could impair an evacuation plan, expose occupants to pollution concentrations from wildfire, and many other things that were not done even as to the downtown.
City Council & Crime Prevention Commission Meeting Page 24 of 44 November 28, 2022 He is not suggesting he would identify anyone to bring a lawsuit over it, but technically, the City’s EIR still does not work and survive the 15126.4 issue and it does not meet all the near and other impacts required under CEQA guidelines of Appendix G, XX, XVII, and 15126.4 because they were not studied. All the City did was say AB 747 will come along, so he is just pointing out that this does not solve their CEQA problem.
He does think the City can declare this to be a significant and unavoidable impact, subject to what he was talking about previously and he thinks that is the City’s best CEQA solution. He does not think people could bring a challenge on that because the City converted it to significant and he does not think recirculation is required for the reasons stated, including the case he referred to.
COLIN ELLIOTT asked how come removing Area 7 and 9 from the EIR study area does not require recirculation in the same way they are talking about the other re-circulation. He thinks this is a judgment call. He thinks whatever the Council does tonight there will be an area of uncomfortableness. Nothing will be perfect, and he agreed with Mr. Sommer that the Council should change the EIR to significant and unavoidable and put in the kind of potential mitigation measures that Orinda did and not re-circulate. He thinks there may be some discomfort with this, but it is no worse than anything else, and less worse than the potential they are facing here.
Regarding the Housing Element and BART, it has been said before that they have more allocation in this cycle because of BART. So, it is not in BART’s current plan, but they will look at that again in 2023. He suggested putting half of the BART lots in for this cycle and say they will do the other half in the next cycle.
This would be very difficult for HCD to turn down because it is a reasonable approach, and he thinks if done, staff can look at what is left here and there and make up most if not all the difference without having to upzone. He asked to remember the buffer is 500 units, so all the upzoning being considered is simply to create a buffer. It is crazy to make that much change to the downtown just for the buffer. He thinks the Council should go with 2 options to HCD and one with part of the BART lots included.
Councilmember Kwok said if they could do ranked choices for two plans and Plan A was using the BART but Plan B is not using it and then having to pick between the staff report today of Option A or B, he asked if Mr. Elliott favored one or the other as a backup plan.
Mr. Elliott said he does not like either of them, but he would prefer Option B. He thinks Jeffrey Stone made some good points, and he works in the same industry. One thing he stressed is that with density bonus, the City will get taller buildings than shown by staff in these illustrations so there are cost implications as he pointed out, but he thinks it is better to go with Option B where the City is not starting at a higher density at least. His preference of course would be to go back to HCD with at least some option at this point.
City Council & Crime Prevention Commission Meeting Page 25 of 44 November 28, 2022 KEVIN BURKE thanked the Council for taking the BART site out of the EIR. He echoed comments from Mr.
Stone that height, parking, and setbacks are very important components of whether projects pencil or not, particularly for setbacks. Shade is nice on hot days, and if you set back a building 30 feet from the street you do not get shade at the sidewalk level which can increase the risk of heat stroke, etc. Also, if the entrance is set back it makes it 30 feet further to walk to your destination which adds up when setting more building back. It is nice to have things right on the sidewalk and suggested considering setbacks as part of the Council’s process. He disagrees there is nothing the City can do about parking and parking requirements. The City could set a parking minimum to zero which does not mean developers cannot build parking. They can still build parking but just does not have to build a minimum because the City is requiring them to. A few weeks ago, a developer was before the Council that wanted to build less parking and staff bullied the developer into building more parking as part of that project. So, he urged the Council to set the parking minimums to zero to make as many projects pencil out as possible, especially in the downtown core. There are many cities like Lexington, Kentucky or Anchorage, Alaska waiving parking minimums.
He also reminded the Council why they are doing this. New condos in Lafayette are more affordable than most everything else that is on the market which can sell for more than $3 million. So, new condos are affordable compared to that. On top of that there is inclusionary so the Council will get more affordable housing on top of that. There are many people who are deciding they do not have a future in California and are moving out daily. It is not sustainable, as California is the only state in the country that lost an electoral college vote in 2020 which means all of their votes for President are not worth as much in the next election. Lafayette has tempered climate which means you do not have to run the air conditioning as much here. Condos will not use as much water as a single-family home development. Residents will have a shorter commute and are more likely to take BART than they are if they live in Manteca, and more housing will help with that. Many people are living in homes too big for them, but they cannot afford to move. The New York Times did a big story on this, but if you add more apartments in walking distance, these people will have a chance to downsize and move somewhere where they do not need to drive every day. This will free up more living options in the City. He supports larger densities in the downtown and trying to hit the targets. Their letter provides many suggestions and he encouraged the Council consider them.
LAUREN HERPICH said she agrees with Mr. Elliott that not everyone will be 100% happy. She wants to provide comments about RHNA numbers, DEIB efforts, and the City’s mission statement. The reason why the City received its high RHNA is because of its proximity to BART so not including it is not only a mistake, but it is also foolish not to. BART will most likely be developed in the future and if it is not included now, they will just have more of the urban Mt. Diablo Boulevard Mr. Stone described with very high developments and include floors for parking. She lives downtown and it is rare to be a one-car household.
They can walk but they might be the only house in her neighborhood that has one car. She was at the renter’s workshop two weeks ago and even renters too love Lafayette because of its small-town charm and open space. These are two vital elements in their mission statement which is another accomplishment of the Council and volunteers on GPAC and public members who participated.
City Council & Crime Prevention Commission Meeting Page 26 of 44 November 28, 2022 She re-affirmed the Chamber’s argument and say that building more housing downtown does not create a more vibrant downtown. It is creating destinations like parks. She vehemently disagrees with Inclusive Lafayette and looking at City-owned property to build housing. It is not that renters just need housing.
They also need other factors of life too. So, she asked to bring BART back into the mix, not spend 800 housing units that could have been allocated for BART and put it downtown, but instead, build free public spaces that existing residents can come together and build community. She asked renters what they love about Lafayette, and they said not to get rid of the open space as they love it and love walking downtown.
She thinks the City should reset and think about not only housing but destinations in the downtown.
GRACE DIXON said she agrees with aspects of all comments and voiced appreciation for the deep thought and deliberation. She knows not all Councilmembers did not want to take BART off of the plan, and she wanted BART in the plan. If this is not possible, she asked for Option A because it focuses on the one-half mile within BART or Option B. Either way, she thinks staff has done an excellent job, thanked them for leaving off Area 6 because this is one full story below Mt. Diablo and two or three stories below BART, but it is significant if developing high rise buildings.
She spoke to the new parking law that would partially eliminate Mr. Stone’s concern that parking would be required. She believes parking within one-half mile of major transit does not need to have parking.
She knows the market demands certain parking, but she was a renter for 20 years and survived just fine with one parking space and commuted and walked to BART. To answer Councilmember Kwok’s question, her choice would be first BART, second Option A, and third the suggestion of Colin Elliott which has good merit which is doing a 50/50 split of half BART and half downtown. A fourth idea is the person who proposed multiple plans if possible, which is worth pursuing.
Councilmember Candell asked if she favored BART and then Option A and then half BART, and Ms. Dixon confirmed.
ROBERT LAVOIE suggested the Council reject the proposal to upzone downtown. Residents, GPAC, and the merchants have spoken. They should push HCD first for the BART option because this is why they increased the City’s RHNA by as many as 900 to 1000 units per his calculation. If they deny the use of BART for any reason, the City should ask for a credit. The City should also keep its parking standards despite the State mandates to eliminate them. He thinks it lets people know what their community wants as the demand is there for parking even on Oak Hill Road. He thinks the Council should go with 450 units on BART for this cycle and then amend the EIR, amend the yield to 95% everywhere, and if they need a few sites the City can do something on DeSilva which he knows is not popular. It would be much better to have some housing there where there is a wide road and easy freeway access than stacking the 8 story proposed buildings downtown where merchants do not want it and they end up with parking lots instead of retail space. He asked to add back some downtown sites like Plaza Center which allows residential by right, so there is no reason to exclude retail. He thinks the State mandates BART. It is the best location to mitigate the RHNA. They can have setbacks, step backs, which would allow development to fit the community’s mission statement because of the large lots.
Councilmember Candell asked if Mr. Lavoie is talking about McCullough’s to Whole Foods as the Plaza Center. Mr. Lavoie said yes, as well as La Fiesta Square which he thinks are both potential areas where they were excluded from the original site planning. They are very viable for retail and residential because they are now housing by right.
City Council & Crime Prevention Commission Meeting Page 27 of 44 November 28, 2022 CHERYL MACDONALD said she was very impressed with Mr. Stone, Mr. Sommers, Mr. Hudson, and Mr.
Elliott for their thought-provoking comments. She does not want to forget about them to see if the Council can work out a timeline to get all of this done by January 31st without re-circulating. She thinks Mr. Sommer’s comments about legal code sections should be considered and reviewed. She was not sure a decision should be made tonight considering all of their comments, but she forgot about the new law that the downtown center should be thought about and La Fiesta Square, as well. She thanked the Council again for keeping Area 6 out and she voiced support for doing the 50/50 BART if this helps with getting pressure off of the downtown. She is somewhat frustrated with keeping the City’s rural character and the Chamber was so strong about preserving the downtown. Housing by right is a serious situation and she is worried about losing a lot of the commercial areas. She does not think the small areas are going to be redeveloped with commercial on the bottom level, so she emphasized the 50/50 BART option.
JANET THOMAS shared her feeling that she does not want the City to face the builder’s remedy. There are so many propositions that have been presented tonight about ways they might craft things potentially to pass legal muster, but she would yield to the lawyers that in fact, they will. She has been very disappointed that the City cannot use the BART property, feels it is unfair, and she thinks it would have been a prime site. She realizes that is the case. She has followed this from the beginning, would like to see more affordable housing in Lafayette, feels strongly that as a public-school teacher who bought a home 40 years ago she knows she could not afford to live here as a teacher now. It is so important to have properties where service workers can live.
She feels the Council needs to embrace the fact that BART has a lot of potential for the future, that it may not be able to be part of this year’s plan but the City needs to start now to plan for the future and she hopes this is something the Council will do. As far as density downtown, she agrees with many of the comments made tonight. She feels a family can do with one car and in the future if housing is within walking distance to downtown the City will consider that. She feels the Council needs to respect the Chamber’s wishes and support commerce. She personally was in favor of building the DeSilva property, hopes that might be reconsidered in the future, and she thanked the Council and staff for their work.
Councilmember Candell summarized her question regarding keeping the current EIR but starting to recirculate the new one, and the argument about substantially compliant, and whether that is a viable option.
Ms. Schiller said with regard to the EIR, once the EIR is certified and an approval is issued that record closes as to that approval. Therefore, whatever EIR is certified prior to approval is the EIR the City would need to defend in the event of legal challenge. There really isn’t a situation where the Council certifies an EIR and then you go back and spontaneously revise it after the project approval. In such a circumstance, you would only revise your EIR if you have another discretionary action to take which would be a new statute of limitations and a new record.
Mayor Gerringer said there is also one year after the statutory deadline to provide additional material, and as long as it is in line with January 31st and the City is substantially compliant she asked if this still applies. She asked if the City would begin the self-certification recirculation process now, get something in so they have a Housing Element and then make changes later. She thinks David Clark’s comments related to this.
City Council & Crime Prevention Commission Meeting Page 28 of 44 November 28, 2022 Councilmember Candell said that was the second part of Mr. Clark’s argument—that the Council does not have to self-certify by January 31st; that somehow the builder’s remedy cannot take effect as long as the City is working towards it.
Ms. Subramanian said she thinks this is what Mr. Clark was referring to, but there is no one year grace period. January 31st is the deadline to comply with the Housing Element in terms of adopting it. If the City does not have an adopted Housing Element that is substantially compliant with Housing Element law by that date, that is when builder’s remedy will go into effect. She thinks he was trying to argue an implied negative argument that the City had an extra year, but that is not an argument she would like to defend in court. She thinks the City needs to adopt a Housing Element by January 31st.
Mayor Gerringer said the other question was Colin Elliott who specifically said removing Area 7 and 9 from the study area do not require re-circulation.
Ms. Schiller said pursuant to this Council’s prior direction, her understanding is that your CEQA expert consultants are writing up the fact for why removing those areas from the EIR does not result in any significant impacts. The ultimate issue is the City is allowed to modify a project in response to comments and concerns. That is what the CEQA process calls for. The question is whether those modifications result in new significant impacts. If they do, then their position is that re-circulation is required. However, often times you make substantial modifications to a project that do not result in significant impacts. So, that is the fact-based question upon which it would be decided about whether or not you need to re-circulate.
Councilmember Kwok said there was a question or comment that came up a few times and in letters which talked about whether the City can propose half the BART station allocation and he asked staff to clarify if it would be easier to get half BART than a full BART, or questioned if that is viable.
Mr. Wolff said it might be incrementally easier, given some of the constraints like the solar panels but it is primarily a step function of BART or no BART and the degree to which BART can undertake it and the City can do what is demanded of the City as BART undertakes a TOD project which is the Stationary Access Plan, local support in terms of finances and infrastructure, etc. Those do not change and those are the big primary factors. He does not think it significantly changes the probability of acceptance by HCD to reduce the number.
Mayor Gerringer said she saw Ms. Schiller writing some notes about Mr. Sommer’s statements regarding responses to Vice Mayor Anduri’s questions regarding Orinda having to do overriding considerations.
When she went back and looked, it appeared that the response earlier was in the Orinda document but around overriding considerations, and Mr. Sommer did not agree they would have to do those.
Ms. Schiller said she was pulling up those pages as Mr. Sommers was speaking and she has the same reading of Orinda’s document as Councilmember Kwok, specifically, Orinda’s DEIR says that this impact would remain significant and unavoidable. So, they do say several times that even with the mitigationlike measures they have imposed there is not a way to demonstrate that the impact would be reduced to below a level of significance. So, they find it significant and unavoidable. This means that before they issue an approval, procedurally they would be required to adopt a Statement of Overriding Considerations.
City Council & Crime Prevention Commission Meeting Page 29 of 44 November 28, 2022 Councilmember Candell asked if this does not change the outcome or Lafayette’s situation whether they go with a Statement of Overriding Considerations or not. It only becomes important if they are looking at an actual project. So, she asked that even if they put it in the significant and unavoidable in the Housing Element EIR, it does not really impact any of the projects.
Ms. Schiller said what Orinda writes has no precedential effect on Lafayette. In practice, because the Housing Element is treated as a CEQA project there would be an obligation on this Council to adopt a Statement of Overriding Considerations if they identify an impact for which they cannot mitigate. But, that conclusion would have trickle down effects on future site-specific projects.
Councilmember Candell asked about the argument of whether they really need to re-circulate or not.
Ms. Schiller said she carefully reviewed the comments submitted by Mr. Sommer and she heard his verbal testimony today and also reviewed the case he submitted for the Council’s consideration. She respectfully disagrees with the assessment. He does correctly cite one subdivision of State CEQA guidelines 15088.5 which deals with proposals for mitigation alternatives that are rejected by a City. But, that is not really the subdivision we are looking at. There is another subdivision in that same code section that says if a new significant impact is identified, that is grounds for re-circulation. Under some of the recommendations made by some of the speakers tonight if the City were to identify a significant impact related to fire safety, that is new and different from what was proposed in the Draft EIR. So, it is the position of the City Attorney’s Office that that would require re-circulation if the City were to change its significance conclusion.
Councilmember Candell asked that as a lead agency they could just choose not to do that and take that risk.
Ms. Schilling said yes, that is a policy call. It is up to the City. In their role as legal counsel, they want to make a recommendation that they believe is the most legally defensible in the event of any litigation and they believe that option is to pull out the proposed development in the very high fire hazard severity zones rather than impose or reach a significant and unavoidable conclusion and choose not to re-circulate.
Councilmember Candell asked for comments regarding his statement that the current EIR has the major defect in terms of AB 747 that says they will push it down the road. Even if the Council adopts the current one they are still in legal jeopardy.
Ms. Schilling said there is no option that will guarantee the City is not subject to potential litigation risk, but their recommendation is to do what they believe is the most legally defensible option, which is to pull out the proposed development in the very high fire hazard severity zones. But, this Council is free to do as it wishes as it is a policy call.
Ms. Subramanian added that this is also just the timing to get the City an adopted Housing Element by January 31st.
Councilmember Candell said without re-circulation she asked if the City Attorney did not think they could get it done.
City Council & Crime Prevention Commission Meeting Page 30 of 44 November 28, 2022 Ms. Subramanian clarified that if the Council did want to proceed with AG Bonta’s wildfire guidance, their office is not the one to make any of the revisions. It is the EIR consultant and a yet-to-be-hired consultant would have to address the fire issues, so it is not something their office would draft.
Councilmember Candell said in going down that route, she asked if there are people out there that could do it by January 31st.
Ms. Subramanian deferred to Mr. Wolff. Mr. Wolff said he does not think it is feasible, but he knows there have been multiple public comments about the EIR. Staff did not include that as part of the project description and the agenda description and is seeking direction on that this evening and staff can bring that back. Given the prior direction and discussion from the Council at its last meeting, when the Council is ready, staff can reiterate what their scope of request was this evening with regard to the programs. He can also ask Vice Mayor Anduri’s questions he posed before the break.
Councilmember Kwok referred to Mr. Sommer’s comment about establishing a threshold of significance.
He asserted that the Council could establish that, for example, non-degradation. If it takes an hour to evacuate today and so long as it does not take an hour in the new scenario, then that is their threshold of significance. It equals zero. If they establish that he asked if they need to hire a consultant to find out from the community-based input that a threshold of zero is something or can they forego a consultant and the time it would take by coming to that decision. He asked who should make the decision about the threshold of significance.
Ms. Schiller said the threshold of significance is up to the lead agency or the City. The City does not require a consultant to adopt one; however, substantial evidence is needed which is supported by facts to justify whatever threshold you pick. She would say if the City were to pick a no increase in evacuation time threshold, given the analysis that is provided in the City’s existing record showing there will be some increase in evacuation times which the City has suggested are not significant, there is not necessarily a clear way to mitigate that back to zero which is why they have been discussing the possibility of saying, well then, are you just calling it significant and unavoidable.
Councilmember Kwok said correct, and if they set the bar to zero with no consultants and then say they have already hired the consultants to say it was more than one hour, they are saying either you mitigate or you do not. If they say they cannot mitigate, then they come to the conclusion that this is significant and not mitigatable and move forward with that decision. He asked if that requires re-circulation.
Ms. Schiller said yes, it would because the Council would be acknowledging a new significant impact which was not in the Draft EIR when it was publicly circulated.
Mayor Gerringer suggested after hearing from Councilmember Dawson, she recommended moving the Council to speak on comments regarding the three programs and the two opportunity sites, and she asked Mr. Wolff to then remind the Council on what input staff needs and any other input based upon public comments or requests of staff regarding research.
City Council & Crime Prevention Commission Meeting Page 31 of 44 November 28, 2022 Councilmember Dawson referred to Councilmember Kwok’s comments and said she thinks it would be difficult to establish a different threshold because different neighborhoods have different times of evacuation. If it changes an extra half hour in one area in one area and more in another area, she questioned how this would be weighed. She wanted to talk about BART numbers and said the City appealed the RHNA numbers based on BART being in the high fire hazard severity zone and they lost that appeal.
She thinks one of the answers to the City was to find numbers elsewhere if they do not include BART which left them in limbo. They received these numbers because of different reasons, given Lafayette is a high resource area, next to transit, etc. so regardless of the BART numbers, they still had high numbers. It is to build those homes that are more affordable. Lafayette had an equity number that was also tacked on because they do not have a good ratio of available affordable homes, so this is also another reason why RHNA numbers were so high. So, this is why they also need to look at the feasibility of building not just at BART. It is where they get affordable homes across the community.
To Mr. Stone’s point, it will be hard to build those and so even if the numbers are there and upzoning occurs, it will be hard for developers to build those numbers in each income category. Eventually, the BART lots will be built out but right now she thinks focusing on just getting clear of the builder’s remedy is the right path. There are other things they can consider such as SB 10 across other areas, but they want to put more building near downtown in the transit area. So, she just wants to focus on how do they distribute and achieve numbers across town to keep the corridor vibrant. Ground floor is something to protect for commercial and retail zoning. So, as these numbers are considered, she recommended considering the feasibility of keeping commercial as best they can at the first floor, working with developers, and identify where they want growth to be.
Vice Mayor Anduri said his first question relates to Mr. Hudson’s suggestion of going to HCD with ranked plans and not one plan. He asked Ms. Elrod to comment on the feasibility of doing that.
Ms. Elrod said unfortunately HCD has not been willing to meet with jurisdictions to do that kind of discussion. Mostly, they have said the City should provide them with a proposal and they will say whether or not it complies with State law. There is not that level of negotiation. The problem with that is it wastes time. Important for the City is that they want to put together a proposal for a program or a Housing Element that will meet the requirements and not go back and forth multiple times. They have had difficulty even getting an informal discussion with HCD about their comments, so they are not interested in having a back and forth with the City or any jurisdiction she has been working with.
Vice Mayor Anduri said Mr. Hudson was suggesting adopting a Housing Element with three options and for HCD to pick one, he asked if that is feasible.
Ms. Elrod said no, she doubts that because HCD thinks the Council adopts something and then they say whether or not it is compliant with State housing law. They are not interested in negotiation.
Vice Mayor Anduri said his other question is that the Council has heard several comments tonight about the yield level chosen. He wondered if Ms. Elrod has seen anything in the approvals of Alameda and Emeryville and the way other submissions have been handled here or in Southern California that would lead her to think the City would have a chance to submit with 100% as their yields rather than 95% or 90%.
City Council & Crime Prevention Commission Meeting Page 32 of 44 November 28, 2022 Ms. Elrod said she thinks they can definitely make a pitch for 90% and 95%. She thinks there are other jurisdictions that have been able to do above that but actually not in the Bay Area. Bay Area jurisdictions she knows of have pitched 100% because they have had over 100% and they have gotten significant pushback. So, she feels like 90% to 95% yield is actually defensible and this is what is being proposed.
Vice Mayor Anduri asked if Ms. Elrod thinks they could move that up to 95% or 100%. Ms. Elrod said she thinks the bar for that becomes very difficult to convince HCD and she thinks it is not an objective analysis that HCD will accept. They are very subjective about that, so when they can say 90% or 95%, she thinks they are in a better position than 95% or 100%.
Mr. Wolff concurred and said HCD has already pushed back on the 90% and 95% requesting additional analysis and evidence on that. So, to go to 95% and 100% is not feasible to be accepted by HCD. He thinks other jurisdictions in Southern California that have done 100% had a track record of production well above 100% and thus could justify it to HCD. The City also has a track record of all of the recent projects in the last 5 years over 100%; however, he thinks it is 111% so it is above but not in order of magnitude. Thus, the City can continue to make a stronger case for 90% as seen in the worksheets.
Councilmember Candell referred to new laws of housing by right and Plaza Center and La Fiesta Square.
She asked how that changes those sites, noting they have a letter from Dave Bruzzone.
Mr. Wolff said Dave Bruzzone submitted a letter encouraging the City to include Plaza Shopping Center and their Rosedale St. Mary’s/Moraga Road site, the latter being vacant and the former being an operating shopping center with low vacancy. In conversations with Mr. Bruzzone, they desire to keep their options open and have as much potential in their real estate holdings as possible, but at the same time would not be interested in scraping the site and building new housing there. It would be highly selective and highly difficult to knit new housing into the existing shopping center. That would be the character of what they would do there.
The housing by right in commercial areas was part of the City’s 5th cycle Housing Element; housing by right in the core, not along the boulevard on the ground floor. So, in a very limited frontage, the ground floor would need to be commercial. In that narrow strip at the ground floor might have some incremental effect on yield, but it would not change the overall assessment of the site as a viable housing opportunity site in the next cycle based on the existing uses there.
Mayor Gerringer suggested recommended the Council provide input based on staff providing an overview.
Mr. Wolff asked to be able to address Vice Mayor Anduri’s two questions asked earlier in the meeting.
The first question related to 949 Moraga Road and which opportunity site is that. In the table it is 13-8 and as part of a greater site associated with the church parking lots. Regarding the density for Town Center III which is at 1000 Dewing Avenue, the site overall is 1.47 acres and there are 69 condos there.
Dividing those two numbers yields 47 du/acre; however, only 1.08 of those acres are actually developed.
There is a significant portion which is the creek and he actually included the BART path in the calculation that follows. So, the developable area is 1.08 acres and if this is divided into the 69 units, they get to 64 du/acre. At a minimum, it is 47 du/acre and more realistically it is 64 du/acre.
City Council & Crime Prevention Commission Meeting Page 33 of 44 November 28, 2022 In turning to the recommendation and request for direction, Mr. Wolff suggested the Council voice comments on the programs and those specifically called out in the staff report and in the presentation which staff can bring back on screen, and then the tiering or opportunity sites breakdown in terms of density that they explored at the direction of the Council, and Option A and Option B.
BREAK
Mayor Gerringer called for a break at 10:18 p.m. and thereafter reconvened the meeting at 10:25 p.m.
Mayor Gerringer asked staff a process question, stating that 11:00 p.m. is when the Council needs to extend the meeting. She wants to be sure they vote on continuing Item 9.C.1, 2, 3 and 4 and then also the Commission and Council reports. She suggested a motion to extend the meeting until 12 midnight, and open Item 9.C.1, 2, 3 and 4 and Item 11.A through C.
EXTEND MEETING/OPEN ITEMS
ACTION: It was M/S/C (Anduri/Candell) to extend the Council meeting to 12 midnight and open Items
9.c.1, 2, 3 and 4, and Item 11.A through C. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
Mayor Gerringer recommended the Council undertake discussion on the program elements; Item 6.1.E, the lot consolidation fee waiver.
Item 6.1.E; Lot Consolidation Fee Waiver:
Vice Mayor Anduri said he is in favor of the staff recommendation. Councilmember Candell said she does not based on Mr. Stone’s comments, noting this would not help developers. He said he would much rather have the Council’s help and talking with owners to get them to do this. Vice Mayor Anduri said the point is it will not hurt. He said he agrees this is something they look at later, but for now he thinks they are looking for things to add that help.
Mayor Gerringer agreed that it does not hurt and actually can help and is an action the City can take which is necessary to add to the responses from HCD and strengthen their programs in this area. Also, they can look at the recommendations from Mr. Stone and others and meet with them.
Councilmember Dawson asked if there is any added language they can incorporate such as a mention of low and very low income in waiving fees. Mr. Wolff said staff concurs with Mr. Stone that in and of itself that this one gesture is not going to make or break any given project. The scale is too large; however, what they have heard time and again is that it is the additive cost of multiple requirements. Mr. Stone also spoke to pursuing a CEQA infill exemption. Even though there is that provision under CEQA, it still takes money to demonstrate compliance with that in the six-digit realm. So, it is a multitude of things and staff thinks this is a positive move the City can make. They also heard there are market-driven things that the City cannot control which is the bulk of it, such as property land cost and market driven factors. Staff therefore concurs with Mr. Stone but thinks it is a positive gesture.
City Council & Crime Prevention Commission Meeting Page 34 of 44 November 28, 2022 With respect to Councilmember Dawson’s recommendation, he thinks this program might not be the best to target towards low and very low income because it is a relatively small impact but hopefully cumulatively makes a difference. He thinks the waiver of impact fees would best be targeted to those very low and low projects. If a developer can make a project pencil with everything staff is talking about, then they are obliged to do the 15% affordable of their inclusionary housing.
Program 6.1.G; City-Owned Parcels:
Mayor Gerringer said she appreciates staff brought forward to recommend being proactive and going out for RFPs. She asked for staff’s response to Inclusive Lafayette and another commenter about having the timing be sooner and not so far out. She asked if other Councilmembers if this is something they can ask staff to move the timing back on this particular item.
Councilmember Kwok said he thinks to the extent they want to find affordable housing sites 949 Moraga Road lends itself well given its location. The property on Golden Gate Way near the Rain Garden, because of the trees and its proximity to the creek and other things, it could lend itself to a park for green space.
He was okay with doing both but was not sure how much housing they could get on this parcel.
Mayor Gerringer said she thinks a timeline for 949 Moraga Road lends itself to something likely moving forward in this cycle than not.
Councilmember Dawson said 949 Moraga Road is a good area, but it poses some circulation issues. She asked if they would do some work with their Commissions beforehand or she asked if it would be part of the RFP because that in itself would take time for analysis. Mr. Wolff said he thinks it would be part of the RFP; to assess the site, opportunities, constraints, and challenges around circulation and what the best proposal would be to attain the City’s goals of housing and to mitigate any impacts or optimize circulation in and out of the site. Staff would make that scoping part of the RFP and that discussion would happen as a function of the project.
Councilmember Dawson said she could see bringing that in and getting that analysis.
Vice Mayor Anduri said he would favor taking off the location on Golden Gate Way out of the opportunity sites. He thinks 949 Moraga Road is a perfect site for affordable independent senior housing just like Belle Terre given the parking requirements of that kind of development and also the proximity to amenities within the town. So, he would favor moving forward and being more aggressive with that site, with the only caveat being that if all goes well, they will be incurring some fairly large expenses and that is a valuable piece of land. If they could get market value for that from an affordable developer that would be great, but the odds are that will not happen. So, they just need to keep that in mind.
Mayor Gerringer and Councilmembers Kwok and Dawson voiced support for keeping 949 Moraga Road but taking off Golden Gate Way.
Mr. Wolff said all three entities, GPAC, the PC and City Council have previously identified or agreed with the assessment that it is an opportunity site; however, he asked and confirmed that the Council is directing to take it off of the program to issue an RFP. So, the RFP would solely be for 949 Moraga Road because that is the lower hanging fruit and the more optimal and realistic.
RFP Schedule:
City Council & Crime Prevention Commission Meeting Page 35 of 44 November 28, 2022 Councilmember Dawson asked about the schedule for the RFP and asked if they were keeping it as is.
Mayor Gerringer asked staff to come back as to whether it is realistic within that timeframe and also with the other initiatives the City has going on.
Program 6.3.C: ADU Fee Waivers:
Vice Mayor Anduri said he would support a 4-year trial on this. He thinks it will be very important for the City to encourage ADUs.
Mayor Gerringer asked what year this would start, and Ms. Robles stated this program would start in the first quarter of next year. Mayor Gerringer voiced support and other Councilmembers concurred.
Miscellaneous Corrections and Spreadsheets:
Councilmember Candell commented separately that the maps were incorrect for the opportunity sites.
On the BART TOD which is 10.3.B, the track changes resulted in a fragmented sentence on page 17 of the document. She asked that staff correct these.
She then referred to 10.3.A and said she did not understand the last sentence which she recited. So, basically it sounded as if the City was doing away with discretionary action on the permitting process and she asked why.
Ms. Elrod said it is because it is State law and it is on the replacement housing obligations amongst other things to accommodate the RHNA allocation. Theoretically, they have 3 years but if they do not get certified it becomes one year.
Councilmember Candell restated the section state, “The City will also incorporate replacement housing provisions for any sites with existing residential use and will permit multi-family uses without discretionary action.” Ms. Elrod confirmed this is State law.
Ms. Robles asked if this is more referring to not requiring a CUP for housing, and Ms. Elrod said yes. So, it is housing by right and that the City is complying with the provision of housing by right for multi-family projects. It is not doing away with discretionary review process. Ms. Elrod said the only thing discretionary is theoretically design review guidelines, but they have to be objective. The City must allow it as of right.
Mr. Wolff asked to strike “without discretionary action” and replace it to say, “housing by right”. Ms.
Elrod said yes, this can be done.
Vice Mayor Anduri asked if that is just in areas zoned 30 du/acre and higher. Ms. Elrod said it depends. If there are sites that have been carried over from a prior Housing Element, they must make those by right at 30 du/acre even if they are in a zone that is not 30 du/acre right now, but the City does not have any of those.
City Council & Crime Prevention Commission Meeting Page 36 of 44 November 28, 2022 Councilmember Kwok referred to the spreadsheet and AFFH; Action item 1.1 which talks about creating discussions with stakeholders and the discussions began in January 2025 about how they go about creating fair housing. The good news is they already made some initiatives in 2022, so he wondered why wait until January 2025. This would provide evidence to HCD that this is a matter of urgency for them, and he would like to talk right now.
Ms. Elrod said she does not think the issue is they would be putting off talking. It is that the commitment is to do it by this certain time. Considering all of the other heavy lifts staff and consultants have, to comply with some of these requirements some things must be put off a bit in terms of when they say they will get it done. They may get it done earlier, but they make a commitment that it will be done by a certain time. Staff and time is limited. They already have a huge number of lifts to do between now and the next 2-3 years so this was the decision made to reflect that.
Councilmember Kwok thanked Ms. Elrod for explaining this, but he said since the City is already talking he asked why they can’t show higher urgency by getting credit for what they are doing. He thinks 2025 is a low bar they could score more points on to show HCD since they are doing it anyway.
Vice Mayor Anduri asked about the two new programs 7.1.D and 7.1.E which he supports. He asked if these were State mandated or he asked how they got here. Ms. Elrod confirmed they are in State law and both are required to be included in this Housing Element.
Mayor Gerringer recommended commenting on opportunity sites and providing input on those.
Opportunity Sites:
Councilmember Candell asked if they have any changed minds to get the BART lots included back again, modifying the EIR and not re-circulating it, and taking that as their least legally risky strategy which she thinks would make most of their residents happy. She thinks they could try that first and she thinks there are lots of legal reasons to do that. She sees a lot less risk legally on this one than she does than trying to push forward the current EIR in its state and with community concern around it. In addition, if they take the route of deferring it and re-circulating it later when they get this going, the cost of doing that would be high. The EIR consultant is in place now to get it done and not incur additional costs for a Supplemental EIR.
Mayor Gerringer said they still are at that place where she is hearing conflicting recommendations around re-circulating. Even if they make those changes, it still takes this a certain amount of time and does not get them submitted in time for January 31st.
Councilmember Candell said the attorney said it was up to the Council and they do not have to re-circulate it.
City Council & Crime Prevention Commission Meeting Page 37 of 44 November 28, 2022 Mayor Gerringer said even if they do not re-circulate it, they have to add in the language, the pieces outlined in public comments, and part of that requires a study, and she asked the City Attorney if this changes the recommendation in them being able to meet the January 31st deadline. If they do not get their EIR certified and the Housing Element submitted and approved by HCD, then they are back to builder’s remedy. What she heard from a number of people tonight, particularly Mr. Stone, is that this is a real concern. She therefore asked what new things did they hear from their attorneys at all that changes the direction they were going with. The pieces of putting BART back in is a question of whether that is viable.
Councilmember Candell said whether they include BART is separate than this EIR. Mayor Gerringer said even if they make a policy decision to not re-circulate it, which is not what the City Attorney recommended, they will not get it done in time, and this is the concern.
Councilmember Kwok said he is very sympathetic to Councilmember Candell’s views and he did not want her to feel completely isolated. He has weighed this decision significantly for weeks and at the last meeting he said he prefers to put it in and do everything they possibly can and do Plan A and give it their very best shot, so he does not want her to feel she is the lone ranger out there. He also feels that way and their community feels that way as well. So, he completely reflects on the community’s will to do this and he would like to try and find a way and understand the risk they would have. They probably open up themselves up to a window of builder’s remedy for months or a year, but his other issue is they probably only have a 5% or 10% chance of having HCD accept their proposal with BART. So, they still need a Plan B they would fall back on. He wished they had a 90% chance of success but given the stack of challenges they would have to overcome, and the fact they are not in the TOD for BART and they could just reject them.
If they rejected them next April or May, then they are open to builder’s remedy and they still have to do the distasteful process of where they sit today of picking between Option A or B. So as a community they have to figure out which of these unacceptable options is better because they have only a 5% or 10% chance of getting the BART path going. They must have this conversation today and still pick Option A or B. They have to do this for the community and pick the untasteful thing. He would appeal to the community to recognize that the 5 of them do not want to be here but they must pick between these choices.
Councilmember Candell said she just wished their legal counsel could have been better on this because they would have avoided this entire conversation. She is so frustrated that they cannot get decent legal representation when they needed it, and this is why they are here. If they had gone the route of their neighboring cities, they would be in a very different situation right now and she just does not trust their legal counsel’s opinions but wishes she could. She thinks they could have someone else write the EIR and get it done quickly. There is so much information to literally copy and paste and they can find someone to do this. She thinks their community will slaughter the Council on this.
Councilmember Kwok said he does not share Councilmember Candell’s views, is frustrated as well but does not share the views. He thinks they have professional advice from legal counsel and the fact they have a 5% or 10% of success on BART has nothing to do with the legal advice they have been given. They challenged RHNA and did not win. They got their numbers so this is not related to the legal advice they are getting related to the EIR. So, he thinks the comments are a bit unfair.
City Council & Crime Prevention Commission Meeting Page 38 of 44 November 28, 2022 Mayor Gerringer said two weeks ago they knew Moraga and Orinda had taken a different take on it. They also moved forward after AG Bonta’s guidance came out. Lafayette was much farther down the road and she understands Councilmember Candell feels this way, but she will stand by the legal advice they have received. She thinks staff has worked very hard over the last 18 months to make sure they were moving forward in a way that complied with the law and it is up to the Council to analyze what the level of risk is they are willing to take. The risk is not just legal. Ms. Elrod all along and in working with GPAC has been moving them to present something that complies with the law.
Vice Mayor Anduri said he does not want them to get into the situation of either Councilmembers or the public saying, “if only we had done this” because they were going down a track with their legal experts and environmental experts taking all these things into consideration and their advice to the Council, legal and factual, was that there was not a significant impact. They concluded at one of their Council meetings 4-1 recommending they move forward on that basis. So, he strongly disagrees with any attempt by any member of the public who says, “if you only had listened to me you would not be in this situation.” He thinks no one wants to be in this position. He agrees completely with Mr. Hudson’s analysis of the RHNA numbers and why it is unfair to have the number the City has, but they must look at BART, what it means to include it, what it means for the EIR to do it. On both counts, they do not get where they would like to be, and they do not want the consequences.
In looking at BART, they looked at all of the ways they could do it. The input they got from staff conversations with BART and with HCD has led him to believe their chances are extremely low of getting them to approve it. Leaving aside the EIR now, if they were to include BART and were to submit something in January his concern would be that the odds are great that HCD would disapprove it and they would then be scrambling to come back to them and the City would be exposed for a period.
Then, looking at the environmental impact side of it, he has listened to the attorneys discuss this and to him, he does not see an alternative to re-circulating if they find there is a significant impact. There was a disagreement on what BART and Moraga are doing. If they are finding it significant and unavoidable and are saying in the text that Councilmember Kwok and Mayor Gerringer found on the Orinda website that the mitigation matters do not reduce the threshold, their only alternative is to adopt a Statement of Overriding Considerations.
He thinks if you spoke to Lafayette residents who are concerned about what the current EIR says and you told them that the alternative is then for the Council to adopt a Statement of Overriding Consideration, he does not think anyone would want that. So, the approach they are taking now of taking the high fire hazard severity zones out allows them to go forward and not without a high cost. He is just sick of what they are going to be doing in terms of upzoning the downtown, but if they move forward and they should with BART for the next cycle, they need to start talking with them and working on the Transit Overlay District. As they do that, they will need to look at the EIR again, so all of these issues related to the Glen will be addressed then. He knows it will cost more money, but this will be more palatable than risking incurring the builder’s remedy. So, it is a very difficult decision. He would rather include BART but does not see a path for including BART and he does not see a path on the EIR that leads anywhere but a Statement of Overriding Consideration and he cannot believe that would be palatable for residents.
City Council & Crime Prevention Commission Meeting Page 39 of 44 November 28, 2022 Mayor Gerringer said she thinks everyone talked about the long-term view of this planning in addition to continuing conversations with BART, working on the DSP that expands to Acalanes to Pleasant Hill Road, have those objective standards everyone has been mentioning and that wildfire evacuation analysis.
Those planning for the future and trying to make sure this decision actually does provide them with what little control they can have on what development looks like, how it sets back, etc.
Option A versus Option B:
Mayor Gerringer said on the discussion of opportunity sites, Option A and Option B, and the whole discussion Councilmember Candell kicked off around putting BART back in and what the implications of that were, and where staff wanted guidance on, what she is hearing is looking at Option A and B as presented in the staff report and providing input on how the Council wants to continue to evolve or return.
They also had public comments regarding Option B and knows staff recommended Option A, so she would like to hear where Councilmembers on Option B in terms of dispersing units a bit and not just have units along the freeway, what Option A really looks like according to Jeffrey Stone or a developer’s perspective.
Councilmember Kwok said he favors Option B which is a more distributed version. The thinking is there could be fewer sites and have them taller in Option A or more distributed and have them less tall. One of the challenges of having the buildings taller are actually more expensive to build and if one of their goals is to have more affordable housing, it works against their favor as well to build over 8 stories. He would like to learn more about whether they are actually going to hit all of their income categories by building tall. So, he thinks they have a better chance of getting their distribution and numbers by going in a more distributed fashion. He therefore favors Option B.
Vice Mayor Anduri said he will weigh in on Option A because this continues with the look the City has along Mt. Diablo Boulevard, although the look will be much different when they get bigger buildings.
What was referred to as the City Center Block with the one-story retail with restaurants in front and then higher buildings behind. This is a much better look than buildings of the same height on the boulevard and behind, particularly when you can have the option for much taller buildings here. So, he thinks they want to keep down the height along the boulevard to the extent they can, recognizing they will have much higher densities in any case. He thinks they still want to have that step back and he would strongly favor Option A.
Councilmember Dawson said she favors Option A because if there is anything they can do to nod to the Chamber’s concerns about not having it distributed all over but be able to guide that growth and tiering.
She agrees with Vice Mayor Anduri’s comments that if this is higher towards the freeway, while it might be more expensive, it might lend itself to more of the moderate-income places where they might take advantage of a view on that side. She knows this does not change the opportunities for parking, but they want to avoid parking on ground floor or as much as they can residences on ground floors and protecting commercial. The whole goal of the DSP will be to create a more walkable welcoming City and they do not just want to be walking along entrances of parking lots to the high rises, so she thinks this lends itself to working with developers on a project-by-project basis. She likes Option A because it focuses the growth.
She noted Orinda is putting off BART in their cycle, so realistically, they want something good at their BART lots and to wait and get a good plan in.
City Council & Crime Prevention Commission Meeting Page 40 of 44 November 28, 2022 Mayor Gerringer said she drove around and looked at sites, and not even bringing up how it complies with AFFH, mixed income, and the point of transit-oriented within one-half mile, she can argue some parts of Option A which should comply with AFFH but visually it seems to put it all in a sliver so she is not completely there with a straight Option A. Where the City has the ability to have standards around the option, spreading it out a bit gives them more options. She is trying to find a way for staff to bring back something at the next meeting and work on other elements of the programs and policies.
Councilmember Candell said she definitely prefers Option A over Option B.
Councilmember Kwok said there was not a representative from the Chamber speak tonight and he wondered if staff could provide any feedback in their meetings as they developed Options A and B. He asked if the Chamber of Commerce had comments on Option A versus B and a preference.
Ms. Robles stated she met with Matt Pease of the Chamber of Commerce who reiterated the comments provided in their letter that their first preference is BART and DeSilva and those areas like 2, 3 and 5. This feedback was incorporated alongside the other comments in preparing the options. Both Option A and B add density to Area 2 whereas this had not been previously part of the conversation and keeping Area 6 down to 35 du/acre and trying to balance their feedback with the other input heard.
Mayor Gerringer said based on feedback from Councilmembers, she confirmed Option A was preferred and she will continue to ask staff to work to not have it all in the one spot. She asked if staff needed any other input. She asked what staff would return at the December 12th meeting.
Mr. Wolff said staff will take that direction from the Council. He thinks they have direction with the majority of the Council supporting Option A, direction on the two additional housing programs stemming from mandatory requirements of State law and the three policy ones, and they have direction to continue with revisions to the Housing Element. Therefore, he was not sure they need further direction for December 12th and will work to incorporate those policy decisions into the revised element. They are required by law to take it to the PC for review and recommendations, publicize that and then bring it to the Council.
Councilmember Candell asked if staff could return with another review of their objective standards given there will be huge changes to the City.
Councilmember Dawson said she looked into what is called a form-based code and it is similar to objective standards, but it is more about what the vision is and what developers could do to coincide with that vision. She would encourage the Council to look into a form-based code approach where the community can also weigh in on. She agreed with Councilmember Candell’s point, given the challenges the City will face.
Vice Mayor Anduri said in looking at the materials the Council received for this meeting where it shows pictures of buildings, it is easy to pick out which buildings are in Lafayette and which are not. He hoped those not in Lafayette never show up in town. He will look into the form-based code, but he definitely thinks they should look at the objective standards separately from the DSP, but he was not sure how to do it given the workload of staff. There are a number of cities in California which have booklets on objective standards for multi-family housing. It can be done and possibly they could go to one of the cities like Lafayette.
City Council & Crime Prevention Commission Meeting Page 41 of 44 November 28, 2022 Ms. Robles pointed out that the City did adopt a first phase of the objective design standards a few years back and there is a program included in the current Housing Element to further develop those, so that would be more refined work.
Councilmember Kwok referred to Option A and said there were some public comments made that residents living there would be subject to more pollutants from Highway 24. He pointed out that the State is on a path to phase out passenger vehicles and zero emissions by 2035, so assuming they start building in 2030 and those buildings last until 2060, within that window he would expect emissions from the freeway to decline during the lifetime of those buildings. So, while it is a concern, at least it is getting better and not getting worse during that period.
Mayor Gerringer and Vice Mayor Anduri thanked Ms. Schiller for coming up to speed on this and joining the Council, and voiced appreciation of her input and the City Attorney’s.
ACTION: It was M/S/C (Anduri/Dawson) to give direction to staff on policy matters regarding the Housing Element Update, including but not limited to, response to HCD’s letter, implementation programs, opportunity sites, and adoption schedule; and to continue the public hearing to December 12th. Roll Call Vote: 5-0 (Ayes: Anduri, Candell, Dawson, Kwok and Gerringer; Noes: None).
C. Steve Goetz, Contract Planner
1. ZT02-22 City of Lafayette (Applicant): City-initiated Addendum to the Downtown Specific Plan Final Environmental Impact Report (SCH No. 2009062056) - Pursuant to Public Resources Code section 21166 and CEQA Guidelines section 15162, 15164, an addendum to a previously certified EIR shall be prepared where all environmental impacts of the Items ZT01-22, ZT02-21, and ZT03-22 have been addressed within the EIR, no new or additional mitigation measures are required and none of the conditions requiring preparation of a subsequent EIR are present.
Recommendation: Review the draft 2022 Addendum, conduct the public hearing, provide comments, and adopt Resolution 2022-63 to approve and adopt the 2022 Addendum.
Project Planner: Steven Goetz, (925) 284-1976, [email protected]
2. ZT01-22 City of Lafayette (Applicant): City-initiated citywide zoning text amendment to amend Chapter 6-18 of the Lafayette Municipal Code updating the flood damage prevention ordinance, contingent on approval and adoption of ZT02-22 Addendum to the Downtown Specific Plan Final Environmental Impact Report. (CEQA Determination:
Pursuant to Public Resources Code section 21166 and CEQA Guidelines section 15162, 15164, an addendum to a previously certified EIR shall be prepared where, as here, all environmental impacts have been addressed within the EIR, no new or additional mitigation measures are required and none of the conditions requiring preparation of a subsequent EIR are present).
Recommendation: Introduce Ordinance 684, take public comment and continue the item to the December 12, 2022 meeting for second reading and adoption pursuant to the Addendum adopted pursuant to Resolution 2022-63.
Project Planner: Steven Goetz, (925) 284-1976, [email protected] City Council & Crime Prevention Commission Meeting Page 42 of 44 November 28, 2022
3. ZT02-21 City of Lafayette (Applicant): City-initiated amendment to the Downtown Design Guidelines for creeks and landscape, bicycle parking, and the Plaza District contingent on approval and adoption of ZT02-22 Addendum to the Downtown Specific Plan Final Environmental Impact Report. (CEQA Determination: Pursuant to Public Resources Code section 21166 and CEQA Guidelines section 15162, 15164, an addendum to a previously certified EIR shall be prepared where, as here, all environmental impacts have been addressed within the EIR, no new or additional mitigation measures are required and none of the conditions requiring preparation of a subsequent EIR are present.) Recommendation: Review the draft amendment, conduct the public hearing, provide comments, and adopt Resolution 2022-64 to approve the amendment pursuant to the Addendum adopted pursuant to Resolution 2022-63.
Project Planner: Steven Goetz, (925) 284-1976, [email protected]
4. ZT03-22 City of Lafayette (Applicant): City-initiated amendment to the Objective Standards for New Multi-Family and Multi-Family Mixed Use Development in the Downtown for creeks and landscaping contingent on the approval and adoption of ZT02- 22 Addendum to the Downtown Specific Plan Final Environmental Impact Report. (CEQA Determination: Pursuant to Public Resources Code section 21166 and CEQA Guidelines section 15162, 15164, an addendum to a previously certified EIR shall be prepared where, as here, all environmental impacts have been addressed within the EIR, no new or additional mitigation measures are required and none of the conditions requiring preparation of a subsequent EIR are present.)
Recommendation: Review the draft amendment, conduct the public hearing, provide comments, and adopt Resolution 2022-65 to approve the amendment pursuant to the Addendum adopted pursuant to Resolution 2022-63.
Project Planner: Steven Goetz, (925) 284-1976, [email protected] Mayor Gerringer opened the public comment period for those who will not able to speak at the March 27, 2023 Council meeting, and there were no speakers.
ACTION: It was M/S/C (Kwok/Dawson) to continue to March 27, 2023. Vote: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
10. ITEMS REMOVED FROM CONSENT – None.
11. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Mayor Gerringer said she thought the Thanksgiving Breakfast by the Chamber of Commerce was great and people were very excited to have it back.
B. City Manager’s Update
Recommendation: Receive and file.
City Council & Crime Prevention Commission Meeting Page 43 of 44 November 28, 2022 City Manager Srivatsa reported from Engineering and Public Works on the three capital projects currently underway. Staff has begun hiring consultants to design projects for the next CIP which includes paving and some improvements on Glenside, Olympic, and St. Mary’s which includes the roundabout, the BART project, as well as a walkway on Pleasant Hill, Quant, and Reliez Valley Road.
She reported from Parks, Trails and Recreation that they will have a free shopping and restaurant shuttle on a test route next Thursday powered by the Lafayette Spirit Van. It will be on Thursdays only and it includes a 45-minute loop from 10AM to 2PM. Mr. Katayanaki is working with the two senior projects along the boulevard to let them know this will happen, and this project could not have happened without their partnership with the Chamber of Commerce.
Lastly, the Holiday Camp registration for December is open and filling fast, and they had a successful Thanksgiving holiday camp at PTR. She encouraged people to visit the PTR website. Office renovations at Suite 210 are underway and will be going on until the end of January. Staff is currently working on logistics on where people will move to and how they can continue to help and serve the public.
Vice Mayor Anduri added that the shopping shuttle by ARPA funds.
Mayor Gerringer and Councilmembers thanked the City Manager for her report.
C. Councilmember Candell and Vice Mayor Anduri
Proclamation on Human Rights and Women’s Rights in Iran Recommendation: Approve a proclamation on Human Rights and Women’s Rights in Iran.
Councilmember Candell thanked staff for preparing the proclamation and said she has some proposed edits after receiving a letter written by an Iranian friend, who recently emigrated from Iran. She said when talking about Mahsa Amini, it states she is a 22-year-old, Iranian Kurdish “woman” and it states she died in custody. Apparently, this phrasing is very sensitive, and she proposed it state she was “killed in custody”.
Councilmember Candell then letter received into the record asking people to stand in solidarity with the first Iranian revolution led by women and stop the Islamic Republic Government of Iran from sentencing, raping, brutally beating, torturing, lashing, kidnapping, murdering Iranians who are standing up for their basic living rights as human beings.
Mayor Gerringer opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Candell/Anduri) to approve a proclamation, as amended, on Human Rights and Women’s Rights in Iran.: 5-0 (Ayes: Gerringer, Anduri, Candell, Dawson, and Kwok; Noes: None).
14. WRITTEN COMMUNICATIONS – None.
City Council & Crime Prevention Commission Meeting Page 44 of 44 November 28, 2022
15. ADJOURNMENT – 11:44 p.m.
APPROVED:
__________________________________
Carl Anduri, Mayor
ATTEST:
_________________________
Joanne Robbins, City Clerk