City Council Meeting Page 1 of 27 April 10, 2023
7 City of Lafayette
City Council
Meeting Minutes
Lafayette Library and Learning Center – Don Tatzin Community Hall April 10, 2023 3491 Mount Diablo Boulevard, Lafayette, California 6:30 p.m.
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Mayor Anduri called the Regular City Council meeting to order at 6:30 p.m.
2. ROLL CALL
Present: City Council: Mayor Anduri, Vice Mayor Dawson; Councilmembers Candell, Gerringer (arrived at 6:40 p.m.), and Kwok
Absent: None
Staff Present: Tracy Robinson, Administrative Services Director; Renata Robles, Senior Planner, Suzanne Iarla, Communications Analyst; Mala Subramanian, City Attorney; Joanne Robbins, City Clerk
3. Disclosure and/or Take Action on Remote Participation due to Just Cause or Emergency Circumstances Pursuant to AB 2449 (Gov. Code section 54953(f).)
4. ADOPTION OF AGENDA
ACTION: It was M/S/C (Dawson/Candell) to adopt the agenda. Roll Call Vote: 4-0-1 (Ayes: Anduri, Dawson, Candell, and Kwok; Noes: None; Absent: Gerringer).
5. PUBLIC COMMENTS – (For Closed Session items)
There were no speakers.
Recusal: Vice Mayor Dawson recused herself from participating in Closed Session due to her association as a co-founder of Save Lafayette Trees and its legal proceedings, and she left the meeting.
6. CLOSED SESSION
A. Conference with Legal Counsel - Existing Litigation (Gov. Code 54956.9(d)(1)) Save Lafayette Trees, et al. v City of Lafayette, et al., Contra Costa Superior Court Case No. 17- 1142
B. Conference with Legal Counsel -Existing Litigation (Gov. Code 54956.9(d)(1)) PG&E Corporation v. City of Lafayette, United State Bankruptcy Court – Northern District of California, Case No. 19-30088 (DM)
OPEN SESSION/REPORT OUT FROM CLOSED SESSION – 7:05 p.m.
City Attorney Subramanian announced that no reportable action was taken in Closed Session.
Noted Present:
Vice Mayor Dawson returned to participate in the remainder of the meeting.
7. PLEDGE OF ALLEGIANCE
Mayor Anduri led the Pledge of Allegiance.
8. PUBLIC COMMENTS (For items not on the agenda)
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JOHN FITZGERALD stated his comments address Scott Dyleski. He was framed 17 years ago. There is an immense amount of information in here with exculpatory evidence that was never allowed in the court trial. Ralph Hernandez, a detective working on the case has been doing so for 12 years. The last 10 years he has been doing it pro bono because he knows in his heart that Scott was framed. The actual murderer or murderers are still walking around Lafayette. One was married to the woman who was murdered. He is married with two kids. He is living the life of Riley. None of this information was entered in the court record. Three separate tracking dogs which not one found out about in the news tracked to a trailer that was on the Horowitz/Vitale property. They would not track towards Scott’s house even though they said Scott had gone to his house on this trail that dogs stopped and went back to this trailer. Inside the trailer they found pinkish red water soaking in the sink. On those clothes, they found a picture of Pamela Vitale, the murdered woman. On top of the picture is the clothes soaking. There was blood on the clothes soaking. This is just one of many things that were not reported. Mr. Horowitz said his wife fought valiantly with that monster who killed her, and they found his DNA underneath her fingernails. That was an absolute abject lie. There was no DNA found of Scott in the home, anywhere around the home, or even the shoe print they reported that was on top of a plastic container inside the house. It was admitted it was not Scott’s shoe, but the public never heard that because the news never reported that.
His mother died with a broken heart about 5 years ago fighting tooth and nail along with 2 very good attorneys who were basically laughed at. Ralph spent all these years trying to do something about it and he is still doing something about it, and he is working with him now. He has children, and he is sure many of you have children and grandchildren. This is an atrocity, a total miscarriage of justice, and the District Attorney’s Office is not doing a damn thing. . He asked the Council to look at this report, call Mr.
Hernandez, get the goods on this, and help them get this young man out of prison. He has been there 17 years. It is about time people get off their fannies and do something, and he is sickened and saddened to hear when he offers these to certain people here in this room that they are not interested in this.
RALPH HERNANDEZ said he has over 50 years of investigative experience in public safety matters, am considered one of the prime experts in homicides and many other investigations. He has worked for over 20 different law firms, spent over 33 years as a sworn peace officer and is retired now, and was asked to investigate the Scott Dyleski prosecution in November 2011, 6 years after Scott Dyleski was wrongly arrested, accused, and prosecuted. Scott Dyleski did not murder Pamela Vitale in Lafayette. Somebody else did. He looked at over 600 photographs taken by law enforcement, have analyzed all of them, has gone through a lot of reports, and Scott Dyleski did not do it. They chose him out of the air just because he was a poor, juvenile, white male resident.
There is a lot of information and evidence that was completely ignored by the Lafayette Police Officers.
There are some questionable statements that were made in the search warrants that were transferred over to the prosecution case. Numerous investigators did not come out and say what they found to the court. The court and jury were unaware. It would have exonerated Scott Dyleski. There were 3 different police tracking dogs that went to another renter’s place and there were bloody clothes there and information and evidence that should have been used but was not by Lafayette officers, as well as the DA’s office. There also were lie detector tests given to that renter that showed that he was dishonest, but Lafayette officers disregarded him. They dropped him once they focused on this poor teenage kid. He was an elected official on the Council in Antioch, as was his wife, and he said the City Council as elected official have a responsibility to get this kid a new trial and a new investigation. He did not do it. There were others not focused on that did, in fact, do it. So, he was open to questions. His sheet which the Council has a copy of he wants entered into the record. His actual investigation reports are well over 60 pages plus a lot of evidence.
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Councilmember Candell asked Mr. Hernandez if he was asking the Council to open a new trial for Mr.
Dyleski.
Mr. Hernandez said he is asking the Council to have the City’s current investigators look at the case again as well as the Council, as representatives of the community, to ask the District Attorney’s office to re-open the investigation. They did a lousy job prosecuting this kid.
Councilmember Gerringer asked what is Mr. Hernandez’s role and his background as the private investigator and asked what Mr. Fitzgerald’s involvement is.
Mr. Hernandez said he is a very concerned citizen who took an interest in the case because it is heartbreaking of what this kid in a State prison has gone through. He has worked for over 20 different law offices in his 19 years as a private investigator, as well as in Australia for a law firm, Beverly Hills, worked for Willie Brown, Jr., and many others. This is a kid in prison that the Council can help get justice for, as well as for the community.
LYNN MACMICHAEL ceded her time to Janet Thomas.
JANET THOMAS said she and Lynn MacMichael are here as Boardmembers of the Lafayette Hillside Memorial to give the Council an update on the memorial. In 2003, 15 crosses were put on the hill by Jeff Heaton, with the permission of Louise and Johnson Clark who owned the land. In 2006, about 300 were installed through the Mt. Diablo Peace and Justice Center in Lamorinda Peace Group, which she was a part of, and over the next year, about 2,000 more crosses were installed. This number was increased over the years. The goal was not to forget and to honor the service of those who fought, but also to reflect on the unintended consequences of war.
Since then, a sign was installed that updated the number of service members known killed in Iraq and Afghanistan and vigils every Veteran’s Day and Memorial Day since then have been held. A group of about 10 people has organized the vigils, paid annually to have the hillside weed whacked, held painting and installation parties to keep the symbols standing in as good a fashion as possible. A few years ago, the group who were maintaining the hillside formed a non-profit—Lafayette Hillside Memorial. This Board took responsibility for the site and gave the Clark family or subsequent owner the possibility of gifting the land as a charitable contribution and the option for private funds for enhancement needing to be gifted as charitable contributions. This is one of the reasons they became a 501(c)3.
Louise and Johnson Clark have passed away and in conversation a few weeks ago with Charles Clark, the Trustee, they have learned he is about to put the land up for sale. He has no intention of donating the land. So, they are here tonight on behalf of the Board to inform the City Council and community they will have a Memorial Day vigil as always which may be their last, on May 29th at 5:30 p.m. All are invited, and the Board had a community workshop about the future of the memorial to get community input. They knew some changes were in the offing in February and they will have a follow-up meeting on May 11th to answer questions and open the conversation to community members who might have an idea they would like to pursue. This will be a Zoom meeting and there will be information on the website at www.lafayettehillsidememorial.org.
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She wants to tell the City and the community that if the symbols come down, they are committed to doing so in a very solemn, respectful way and that people who have personalized their symbol will be able to take those home to keep them. They will invite the community to join in those efforts.
9. PRESENTATIONS
A. Mary McCosker
History Presentation
Recommendation: Receive and file.
Mary McCosker gave a presentation on the “Early Downtown.” Elam and Margaret Brown purchased the Rancho Acalanes in 1847 and sold over time some of the 3,000 acres to families who had accompanied them on the journey west and others who moved into the area later. She spoke about the town’s increase in population, establishment of stores and businesses, and the 1864 donation of land in the center by the Brown’s in the center of the community. The park would serve as a gathering place and an area where most early businesses were built around the park, called the Elam and Margaret Allen-Brown Plaza Park, or what is referred to as Plaza Park.
She presented and described early 1900’s photos showing Lafayette’s downtown, its stores, markets, hotels, the blacksmith shop, the first grocery store who was built by Benjamin Shreve who named the town “Lafayette” and was hired by Elam Brown to be the first school teacher. She presented pictures of the grocery store. Later, the store was renamed the Pioneer Store and it because what is now today as the Sideboard Restaurant. Before electricity, people would speak to the butcher in the meat market and he would provide fresh meat when needed.
In January 1922, Lafayette had a big snowstorm and many pictures were taken because of what was an unusual occurrence. The Lamp Hotel was located at the corner of today’s Mt. Diablo Boulevard and Moraga Road. Philip Lamp built the hotel in 1900 which served the community until 1925 when a fire started in the kitchen and the Walnut Creek Fire Department saved the town using water from Pat Miedo’s swimming hole behind today’s Park Theater. The hotel was destroyed. Peter Thompson was the town blacksmith for over 60 years who came from Canada in 1859. The first schoolhouse was a small, one-room building likely built in the mid-1850’s and it served the community until the late 1860’s. She presented a picture of Mt. Diablo Boulevard in the 1860’s with no buildings on either side of the road or any trees or plants. The road was dirt and became muddy when it rained. She presented a picture of Moraga Road in 1915 looking up towards where Mt. Diablo Boulevard would be today. She presented a picture of the third schoolhouse is now the Methodist Church, the corner of Mt. Diablo Boulevard and Moraga Road in the 1930’s, and the road has 2 lanes with no stop signs or stop lights.
The first post office was in the Benjamin Shreve Store. Later when there were more people, the small post office was built where Safeway parking lot is today. The post office served as a library, as well. Town Hall was built in 1914 to be a place for community meetings and parties. Upstairs there was a dance floor that bounced when people danced. Today, Town Hall is a theater where plays are presented and where children take drama classes. The Lafayette Cemetery is on the west end of Lafayette and it was established in 1874, although the first burial was in 1854.
Mayor Anduri and Councilmembers thanked Ms. McCosker for her presentation and for being the recipient of the Tom Mulvaney Legacy Award. Mayor Anduri stated May 8th will be Ms. McCosker’s next presentation.
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B. Assistant Fire Chief Jeff Peter
Update on Fire and Emergency Services
Recommendation: Receive and file.
Jeff Peter, Assistant Fire Chief, Contra Costa Fire, gave a PowerPoint presentation and update on fire and emergency services in the district. He gave a background and described the growing District, displayed the latest district map showing fire stations, expansion with 2 stations they will build out east with the East Contra Costa consolidation: Station 90 and 94, and Station 73 and 74 in Pinole. He spoke about their Ambulance Transport Alliance with American Medical Response, an aviation program with Reach Air ambulances, a hand crew or Crew 12, which is a great way to get work done and gives young people opportunities to learn about what they do. He displayed their dozers which will improve fire trails in advance of wildland threat season and when they actively have fires, they put a perimeter around the fire and minimize the acreage that can be burned.
They have on-call fire investigators 24 hours a day, hazardous material program in coordination with County Haz Mat teams, robust health, and wellness programs for all employees, recently added a canine, Baxter, to help investigate fire origin and cause, a marine program and will increase their technical rescue program, a UAV program and participate in FEMA’s urban search and rescue program as members of 1 of 8 teams in California sponsored by the City of Oakland. He then presented photos of their hazardous materials truck, Station 70 in San Pablo, and hand crew representatives.
About a year ago, they annexed East Contra Costa Fire Protection District, have already moved all engine companies to advance life support with paramedics on every company, and have 2 new stations planned.
They are adding an engine company out east tomorrow, and all additions help the entire district. On March 1st they implemented their contract service to the City of Pinole and opened Station 74.
Crews are doing project work in the off season, helping fight wildland fires in the wildland season, and they help get engine companies relief from structure fires. They have several resident wildfire mitigation projects and programs underway and recently re-opened their Southern Walnut Creek Station 4 which is a huge benefit to Lafayette. They opened new Station 86 and Station 95 which was an East Con station they were not able to open due to budget challenges, so they staff that as well.
Construction plans are underway for 3 new stations, 2 out east and 1 at Concord at I-680. They are trying to co-locate that on the airport site to serve the airport and surrounding community. They have a SAFR grant awarded which they are using to increase staffing out in the east part of the district, and this will help them staff their rescue company and fully staff it. He then presented a picture of Baxter, their accelerant dog, a photo of some of the wind damage where they worked with public works and PG&E crews which were overwhelmed from downed trees.
Assistant Chief Peter then presented data regarding City of Lafayette calls through January 2023 showing 1 month of data. They saw a drop in 2019 and 2021 of about 153 to 160 calls a month, and in 2023 they are back up to 178 calls. For the last 36 months they have seen increases in May due to wildland issues and in December where most people have illnesses.
He then presented incident response count by hour of the day, said there were a total of 178 incidents for January 2023, no structure fires, and he presented average response times, EMS counts year to date, City Council Meeting Page 7 of 27 April 10, 2023
wildland fire concerns and threats, what the public can do, transports and data related to them, and Code 3 response times by different unit types.
Regarding wildfire threats, while they did get a lot of rain it may carry more fire when grasses and ground fuel dries out. They will likely get a later fire season start than in prior years, but the rain does not make it go away. He provided a snapshot of the new Cal Fire SRA mapping and they changed it to include an extremely high fire hazard area in red, a high fire hazard area in orange, and a moderate hazard area in yellow. CalFire still needs to create all maps for the Local Responsibility Area which would be cities. This is drawing attention statewide, but it is important work so everyone understands the threat is real and will not go away. They encourage people to take defensible space seriously and have a family plan, go kits, and precious items ready to go so they do not try and go back to grab something.
There is considerable threat to the entire County and the City. It is vegetation but also exterior fires that start and spread to a structure, structure fire that can spread to vegetation, or a vehicle fire that can spread to vegetation. He displayed a link to the State Responsibility Areas and Local Responsibility Areas.
Assistant Chief Peter said he met with the Police Chief, Fire Chief, and Contra Costa Sheriff officials on drills and public education they will do. The CWS alerts are a valuable tool to determine when residents need to evacuate, as coordinated by law enforcement and fire. The new Zone Haven mapping system has the entire County gridded out when they need to decide whether to evacuate a given area or zones. The campaign through CWS is to ensure residents know their zone.
He then spoke of documents and programs for fire safety for residents, with the focus on wildfire threat in California, noting residential fires pose a significant threat in communities. Modern furniture burns faster and is more toxic and simple steps can save lives. It is important to test smoke and carbon monoxide alarms at least twice annually, sleep with bedroom doors closed, have an evacuation plan for the family, and there is significant information on Con Fire’s website.
Councilmember Candell asked when the LRA maps might be available. Assistant Chief Peter said they are hoping in the next 4 to 6 months from Cal Fire.
Councilmember Kwok thanked Assistant Chief Peter for providing the presentation and for stating that fire danger could be higher because of growing vegetation from rains. He asked what is planned for public outreach for the year.
Assistant Chief Peter stated their PIO has some planned webinar events, he and the Police Chief spoke about doing some informal events with the community at gatherings where they have a fire truck with law enforcement, will coordinate with Lamorinda to talk about a virtual evacuation drill, and they are also coordinating some events with Orinda and Moraga.
Councilmember Kwok referred to the need for a station that can accommodate a ladder truck, given the potential for taller building structures, and he asked for any update.
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Assistant Chief Peter said he knows Chief McAllister is aware of the future need, but as vertical development increases, the need is important to have a ladder truck. The station on Diablo Boulevard is not a station that can accommodate a 65-foot aerial ladder truck so they need to find a station that will accommodate that type of equipment. The other thing fire services are struggling with nationwide is that their lead times to have a custom-built fire truck are now 3 years where it used to be 13 months, so they are planning well in advance.
Vice Mayor Dawson referred to slide 5 and asked what are the type of the 21% other/unknowns’ incidents.
Assistant Chief Peter said it could be wires down, trees down, hazardous materials investigations, smoke check that they do not dispatch out as a full structure response, a gallon of paint on the side of the road or oil. He noted that about 75% to 80% of most fire department calls are medical aids. Lafayette is on the low end of the normal percentages of any jurisdiction in the country.
Mayor Anduri opened the public comment period.
JIM MCKEY said he is working with Happy Valley Improvement Association regarding its Firewise program.
He was hoping to hear some thoughts about how Con Fire is working with the residents to promote participation in Firewise communities to help mitigate risk from wildfires in the area.
Assistant Chief Peter said Fire Marshal Chris Bachman oversees the Fire Prevention Bureau. In Lafayette there are 5 or 6 Firewise communities or neighborhoods and there is value in increasing that number. If any neighborhoods or groups of residents are interested they can go to their Fire Prevention website and contact Chief Bachman who can assist with forming Firewise communities.
Mayor Anduri and Councilmembers thanked Assistant Chief Peter for his presentation.
C. Thomas Adams, Avenu Insights and Analytics
Sales Tax Presentation
Recommendation: Receive and file.
Administrative Services Director Tracy Robinson introduced Thomas Adams, representative from Avenu Insights and Analytics who will provide an overview of the last quarterly sales tax.
Thomas Adams, Avenu Insights and Analytics, said they are the City’s sales tax consultant and he is here to provide an update on the winter holiday period or the 4th quarter on how sales tax revenues are doing.
They also provide forecast and sales tax data with staff and audit services to ensure the City is capturing all revenue it is entitled to.
He provided a PowerPoint presentation and spoke about recent history of what has been a bumpy road over the last few years. They had some new revenues before the Wayfair / AB 147 related Supreme Court case that allowed the State to start taxing some out of state businesses in getting new revenues which was great news. COVID happened and they saw a dramatic lockdown in the State that affected revenues dramatically for the 2020 calendar year. The 2021 year was the year of recovery with very robust doubledigit sales tax growth. This also began leading to inflation they are still dealing with today.
In the 2022 year, they began having things like the Ukraine war with Russia which also added to inflation and higher gas prices. As a result, the Federal Reserve has begun to hike interest rates a bit and there are various Federal and State reactions to the pandemic and inflation more recently.
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In looking at what constitutes the City’s sales tax base, restaurants and retail are a big part of it, use tax or the County Pool include things like internet, things coming in from out of state, businesses that report throughout the county which is about 20%, food and liquor markets, gas stations, and auto repair. Some smaller ones for the City are construction, B2B, and other miscellaneous sources.
In looking at the City’s cash performance 3 of the 6 quarters are double-digit robust sales tax. The most recent data in the current data is going into the single digit which is down about 3.4% versus the prior year. A year ago, in Q4 was a very strong quarter because people had savings built up from the pandemic and they are using the term “revenge spending” and having the pent-up demand with the desire to use credit cards and dollars. They like to split sales tax in 5 main categories: 1) retail; 2) food; 3) transportation; 4) construction; 5) B2B, and 6) miscellaneous. The top line total receipts were in Q4 they are looking at today. The calendar year is split, and they can see the pre-pandemic year nicely in 2019.
The City also received the first quarter of the Wayfair / AB 147 net new money coming in through the County Pool that year. 2020 is the height of the pandemic effects and recessionary downturn. 2021 is where consumers come back strong, and 2022 they are getting towards new normal growth levels over the last 3 quarters. They can see how areas were affected during this time period. There were also some other trends that may have been happening before the pandemic that may have been accelerated by the pandemic such as brick and mortar retail starting to slow down as the internet was growing. Maybe what was happening in 5 years took place in about 1 year, so they see things like restaurants most dramatically impacted Statewide, which is very different from a normal recession where high ticket items like cars, construction, appliances, are affected much more.
The good news is that restaurants are back considerably where they were pre-pandemic. Restaurants generate about 30% of local business sales tax. Included is the County Pool and some of that use tax coming from outside of the area which is about one-quarter of the sales tax.
He presented the 5-year history on the left and more recent history on the right. These are economic numbers where they are balancing out payments to prior periods and other anomalies that go on. There is cash the City receives and economic numbers where they are balancing things out to see what the economic performance is. If they consider some of the inflation during this period, it depends on the category, but there are much higher inflation rates than other things like retail. In that 5%, it is about $35,000. Two of the primary reasons for that are retail and food and to a smaller extent, transportation had some gain and B2B had a bit of a gain, as well.
The local businesses are about 80% of the sales tax pie. The County Pool is about 20%. Total receipts are a combination of local businesses plus the pools along with some audit adjustments and the State’s administrative fee. The bottom half of the slide is the recent County Pool activity and Lafayette’s percent of the total at the bottom. The City is down about 17% for the County Pool jurisdiction share which is a little higher than the overall county, but they must put this in context that they are coming off of unusually high levels of internet spending and people going back to brick and mortar, going back to spending on things like personal services and travel, so it looks a little worse because of the spike during the pandemic.
They think they are getting back to a more “new normal” type of number.
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They provide staff and the Council with a sales tax forecast which they discussed 6 months ago in November. They are about 3.6% for this year and 1.6% for next year. They update these each quarter as they are going through the fiscal year in terms of data where the City accrues back to August to show the actual sales tax period. They have downgraded about 1.8% for this year and about 1% for next year. They do a combination of trending from local business performance or a micro economic analysis of trends for businesses and for different categories. They also apply a macro lens of what they see potentially coming.
In the past, they leaned more on the micro side because things were a bit steadier. Since the pandemic started, they needed to lean more on the macro side when thinking about when things would change back to the new normal.
He presented a graph of how this has looked over time. For Lafayette, it has been an extended V-shaped recovery. They are now getting back to the trend line going forward. In terms of assumptions going forward where they are building the forecast in out-years, they are assuming a mild recession, this may not be termed a “recession.” The National Bureau of Economic Research Business Dating Committee which decides these things as well as after the fact, use a variety of data points that help them decide these things. So, they might look at it as a slowdown or a bit of a downturn. Their other assumption is that Federal Reserve has indicated they will keep raising interest rates to help cool down the economy and continue to lower inflation. Whether they will get a hard or soft landing remains to be seen as to whether those interest rates tip them into a recession or not.
Their assumption is that inflation will moderate to more normal levels by the end of this calendar year, at about 3%-ish. The Federal Reserve likes it more at 2%-ish level, but it seems they are willing to have more flexibility if they get down to the 2% to 3% level. Also, supply chains will return to more normal levels by the end of this calendar year, which has been seen dramatically over the past year.
Regarding some caveats, they have a lot more uncertainty with the economy right now and there may be some unchartered or choppy waters going forward. The recent banking sector volatility has added to that level of uncertainty. There is greater uncertainty for the world in upcoming years. The good news for Lafayette is that it does not have so many recession-vulnerable industries in the City. The City is a little steadier player over time so they will not have that boom on the good side, and they will also not have that bust during a recession, so their variances will be a little more constrained. If they did have another pandemic, the City would be affected more heavily, given its restaurants. During a regular recession, the City’s risk is much less than other cities they deal with.
Some areas of uncertainty include the recession loom on the horizon, and if they see one, how deep and how long, what gas prices are going to do over the next several years, how much inflation will continue to impact the economy, how is the Federal interest rate adjustments affecting the economy which has not been too bad so far, when will supply chains get back to normal, and what the new normal will look like moving forward. He concluded his presentation and stated he was available for questions.
Vice Mayor Dawson said the City has invested ARPA funds into supporting businesses’ recovery from the pandemic. She is curious as to how they can measure their effect and asked if they could get more granular information, such as how many people are frequenting restaurants or how deep they are going with expenses.
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Mr. Adams said the sales tax by business is confidential so they cannot share that. Businesses report their numbers on a blanket basis, so they do not have any way of seeing beneath that number as to who those people are, whether they are residents or whether they are coming in from outside the City. But, they can look at aggregated performance in a smaller area if they have enough businesses within a certain category as long as there are 4 or more businesses part of that grouping. He encouraged the Council to work with staff and they can discuss with him as to how to obtain the information.
Councilmember Candell said personal taxes are delayed until October 15th, and she asked if this affects any information obtained.
Mr. Adams stated no. He did not mention it, but at the start of the pandemic, the Governor offered some 90-day extensions to businesses to pay their sales tax late because of the impact of the pandemic. There are huge declines in Q1 of 2020, but the lockdown did not happen until about mid-March which was almost the end of the Q1 quarter so interestingly, statewide you see the decline for the first quarter at almost 19%. The second quarter is about 6%. The reality economically is about the reverse, that the Q1 was down about 6% and the Q2 was down about 19% because of those late payments. The Governor has done that several times and again in Q4 of that year and again in Q1 of 2020, Q1 of 2021, so this throws off the cash results because people are paying in different periods, which is part of what they need to figure out on their end—what is the true performance going on versus the cash performance and how to adjust their model to deal with that. But, they have not dealt with that for a good year or more.
Mayor Anduri opened the public comment period, and there were no speakers.
Mayor Anduri and Councilmembers thanked Mr. Adams for his report and presentation.
10. CONSENT CALENDAR
Mayor Anduri asked if there were no requests for removal of items. Vice Mayor Dawson requested removal of Item A. There were no public members wishing to speak or remove items.
B. Ordinance 684 Approving a City-Wide Zoning Text Amendment ZT01-22 to Chapter 6-18 “Flood Damage Prevention” of the Lafayette Municipal Code contingent on the approval and adoption of ZT 02-22 Addendum to the Downtown Specific Plan Final Environmental Impact Report.
Recommendation: Waive second reading and adopt Ordinance 684.
C. National Opioid Litigation and Authorization to Participate in Additional Settlement Agreements Arising from the Litigation
Recommendation: Authorize the City Attorney to take all necessary steps and execute appropriate documents to participate in the Additional Settlement Agreements with the Additional Distributors and any future Settlement Agreements with new Distributors, agree to the State Subdivision Agreements, and allow direct payment to be made to the County.
D. Potential Acquisition of Trail Easement on 3370 Sweet Drive, APN 239-111-015 Recommendation: Declare, as a minute order, intention to negotiate for the purchase of a Trail Easement on parcel APN 239-111-015, and schedule a closed session to discuss price and terms of payment.
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E. Major Subdivision Tract 9475, 210 Lafayette Circle, APN 243-150-017 – Acceptance of Improvement as Complete
Recommendation: Authorize staff to file a Notice of Completion, record a Certificate of Acceptance for a Public Utility and Pedestrian Access Easement (PUE & PAE), and release payment and performance bonds per the subdivision agreement for Tract 9475.
ACTION: It was M/S/C (Gerringer/Dawson) to adopt Consent Calendar Items B, C, D, and E. Vote: 5-0 (Ayes:
Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
11. OLD BUSINESS – None.
12. STAFF REPORTS
A. Greg Wolff, Planning & Building Director; Renata Robles, Senior Planner; Diana Elrod, Housing Consultant – California Department of Housing and Community Development (HCD) Review Letter on Lafayette’s 6th Cycle Housing Element
Recommendation: Receive status update and direct staff.
Diana Elrod, Housing Consultant, stated she is presenting an update on the HCD comment letter for the Housing Element. This is an informational update and staff is seeking questions from the Council to inform their discussions they will have with HCD and research they need to do to understand other jurisdictions who are in a similar situation. The recommendation is to receive, file, and confirm staff’s further research they are recommending.
Ms. Elrod stated on June 30, 2022 the City submitted its initial draft to HCD for its statutorily required 90- day review. On September 29, 2022 HCD provided the first letter requesting revisions. On January 24, 2023 the Council adopted the Housing Element. On January 31, 2023 the Housing Element was submitted to HCD for its statutory 60-day review post adoption. On March 29, 2023 HCD provided a letter requesting additional revisions. As part of the staff report, staff included a detailed matrix of comments provided which discusses the level of difficulty staff believes in responding to it, whether the Council will need to make recommendations or have a policy decision about it, and a variety of other bits of information.
Now that the City has received a letter from HCD indicating that, while the City meets many of the statutory requirements, they are not there yet. There is no specific deadline for the City to submit its revisions to HCD; however, it is important to know that if HCD does not certify this or any other Housing Element by May 31st the City must complete any rezoning it is required to do by January 31, 2024. Staff assumes this is the case and they are planning to complete rezoning within that one-year timeframe regardless of when they re-submit.
She noted that in a letter dated March 16, 2023 from the Housing Accountability Unit and Enforcement, HCD is taking the position that only it has the authority to deem a Housing Element in substantial compliance, despite both case law and State law in the Government Code, Section 65585 to the contrary.
What that code allows is for a jurisdiction to identify why it thinks it is in substantial compliance with what it did. They included a lengthy attachment to the resolution adopting the Housing Element that discusses line by line every item in the Housing Element law and how the City complied with every statutory requirement. However, HCD is taking the position that this does not hold; that ultimately, it is the only one that can deem it in compliance.
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There are two items in the letter that rise to an important level staff will be seeking Council direction for a future meeting, but staff wants to make the Council aware of what those are and receive consensus on staff moving forward and researching how to address these. The State has indicated it continues to believe their ADU projections are too high despite the evidence they provided to justify their assumptions.
Secondly, this is the first time HCD has expressly stated that the City must consider a suite of programs to address housing mobility in low density neighborhoods. What that translates to is that with respect to dwelling units, the comment was that HCD’s prior review found the Housing Element should either include additional analysis such as the number of permitted ADUs or rescale assumptions closer to recent trends, i.e., 20 to 25 du/acre. The City’s comment included 37 permitted ADUs in 2022 which is an average of 17 ADUs per year since 2018 which they do not include on the table, and that they assume approximately 35 ADUs per year throughout the planning period because of pent up demand and an uptick in the number of units being permitted.
In terms of the second comment regarding barriers to higher opportunity areas, she would like to focus on the underlined part which states that the City is primarily a concentrated area of affluence, an RCAA, and it is also the highest resource community. As a result, according to HCD, the Housing Element should include a significant and robust suite of actions not limited to the RHNA to promote housing mobility and increased housing choices and affordability throughout the City, but especially in lower density neighborhoods, e.g., through a program to allow missing middle housing types as one option. What this means is, even though the City may meet the RHNA allocation from what they have proposed, in order to meet the requirements of AFFH, HCD is requiring jurisdictions and not just Lafayette, that they need to look at a way to increase mobility and housing affordability options in lower density neighborhoods, i.e., single family neighborhoods.
With respect to missing middle housing, HCD has suggested there are other ways other jurisdictions which are facing the same comment may be planning to do. Residential buildings with multiple units at the scale of a house is what is considered “missing middle” and this includes densities around 20 to 25 units to the acre. She presented an example of what was built in 1947 which is 4 units on Sundale Road. It essentially looks like a single family or a series of single-family units, but it is much denser. The second example is a 5-unit development on Chestnut Drive built in2020. This also is a common feature, having a common driveway for all units. This is a new housing type many jurisdictions are selecting to meet missing middle issues.
Staff is available to answer questions and they would like feedback from the Council. They plan to research ways to address these comments, especially in conjunction with other jurisdictions in the Bay Area who have received the same or similar comments as well as working to schedule meetings with HCD to dig down on these items. Staff will bring this item back to a future Council session for more concrete direction. They hope to bring a bevy of options for the Council to review and ensure that whatever they bring to the Council is something they understand HCD will accept.
Mayor Anduri said Ms. Elrod mentioned they would be doing the rezoning within one year. He wanted to confirm that they already planned to do that, and Ms. Elrod confirmed. She said it is written in the letter as a reminder that they must do it if it is not certified by the State by May 31st, and they are planning to do it anyway.
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Mayor Anduri asked and confirmed staff was looking for direction and that staff was still studying and researching the questions. Ms. Elrod said the two questions they felt rose to the occasion where they wanted to let the Council know they were a significant issue and that they were going to try and address and work with HCD on so they can return with reasonable options they are confident HCD will accept.
Councilmember Kwok asked if Ms. Elrod has held any meetings with HCD after the letter was received.
Ms. Elrod said no, staff has reached out a couple of times and HCD has not been responsive, except giving them two examples of missing middle housing programs. That said this has been a similar problem throughout the Bay Area.
Mayor Anduri said for the public record, staff asked via email for a meeting most recently on March 30th.
Ms. Elrod stated there was a more recent request that was last week on Thursday or Friday where they reiterated and re-requested again. They sent it to their specific reviewer as well as the head of his unit.
Mayor Anduri referred to the AFFH Act and their comment about how the City needs to have density in other areas and asked how that is called for in the Act itself. He was not sure how many jurisdictions are high resource areas, but he asked where in the Act it states that even if a City is a high resource area they must spread out housing.
Ms. Elrod said there is language in the statute that requires jurisdictions to provide opportunities for additional mobility for people of moderate income to have options or opportunities in development in historically high affluent, high resourced areas. HCD is the one who has interpreted that to mean that cities must develop in low density districts and create new housing, therefore, missing middle housing.
So, the specific requirement to say to go into single-family neighborhoods is not specifically in the statute.
They are interpreting this as to what the statute means.
Councilmember Candell said this is very frustrating, and Ms. Elrod noted that other jurisdictions have additional comments, and she feels good about the efforts made by Lafayette.
Councilmember Candell recognized the amazing effort of staff and Ms. Elrod. She said among those cities HCD has had comment about the AFFH and other zones, she said Orinda got their Housing Element approved and she confirmed they did not do any of that. She asked about Moraga, and Ms. Elrod said she was unsure as to whether they received their letter yet or not. One of the things she and staff are doing is collecting all certified Housing Elements not only for these issues but all issues having to do with sites inventory, constraints, and what was it about theirs that basically made HCD happy and what can the City learn from that. Every jurisdiction she knows of is doing that because they are all in the same boat.
Lafayette is special in many ways, but unfortunately is not special about these issues.
Councilmember Candell said she knows one of the things suggested in the spreadsheet was waiving impact fees for 100% affordable projects. She asked if there is a way for the City to get an estimate of how much of a cost that would be so the Council can understand what they are being asked of.
Ms. Elrod said as they go through these, they would identify what is being recommended or required and what is the consequence to the City. This is a lot of what the research is which they must do because they do not know but it is in there.
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Councilmember Candell said someone suggested that based on comments made in the staff report where some of the issues are being raised for the first time, they are contrary to earlier guidance, they should have been raised earlier, and some may have factual errors. She asked should the City Attorney make a response in the City’s defense saying they did not get certified but have no chance of understanding what would come back. And, she wonders if there is a possibility that a response from the City Attorney can occur which might help them if they have future legal challenges.
Mayor Anduri noted the City’s Housing Element is certified.
City Attorney Mala Subramanian stated the Council adopted the Housing Element prior to January 31, 2023 so staff believes the City is in substantial compliance, as Ms. Elrod indicated. She would defer to Ms.
Elrod because she is a little concerned about a letter coming from counsel and how that might impact HCD’s expeditious approval of the Housing Element.
Ms. Elrod said this is an interesting question. She believes that what another jurisdiction was told was essentially, this is the way it is and that there is nothing that the City could do to change their mind about what they say the City must do.
Councilmember Candell said she is not saying that would change HCD’s mind, but other cities are getting sued by these outside groups. She asked if it would help the City legally.
Ms. Elrod said she is not a lawyer, but she thinks the issue is it will get litigated and she would prefer it not be any one of her clients. She thinks there are other jurisdictions moving towards that; that this issue of the law says they can do this, and it puts the City in a difficult position with the State who is already very unhappy that all jurisdictions adopted by January 31st. They thought they would get another 90 days.
City Attorney Subramanian said she understands the concern from Councilmember Candell of just putting the City in a good defensible position should the City receive a lawsuit, so it is balancing that with also getting their Housing Element approved by HCD.
Councilmember Candell said in their arguments, she asked if SB 9 and the number of projects that have come in play into account at all. Ms. Elrod said her understanding from other jurisdictions who have a robust SB 9 program it has not swayed HCD that they want something different because the density would not necessarily be enough in their mind. She does not think anyone is suggesting the City should upzone to 35 units to the acre but the downtown for multi-family is they are trying to give more opportunities for slightly higher density housing. They are talking maybe 20 units to the acre, so it is an opportunity to develop housing on corner lots or near a big street, and it does not have to be everywhere. They can be strategic about it, but they need HCD to say yes, that sounds great. She also noted some jurisdictions are now looking at an overlay district just for faith-based development and having that as an opportunity to increase housing density in those areas. There are many issues relating to this, and staff wants to look into those things and bring them to the Council for consideration and a decision as to what the Council thinks is the best “suite of programs” as HCD says.
Councilmember Kwok referred to a certain corner and zoning, he asked if this is different than spot zoning or the same. Ms. Elrod said it may or may not be. It depends on how it is crafted. It might be a certain section of street, but she was not sure. These are the kinds of things they need to think about, but they would not be spot zoning anything.
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Councilmember Candell said she thinks San Francisco did that where on corners, development can be taller, and there are some examples. Ms. Elrod agreed, and said with a housing overlay they could do this rather than all sites of a certain size, all faith-based institutional sites, etc., but these are some of the things staff must do research on.
Mayor Anduri said in the materials, there was a March 10th letter from boardmembers of Inclusive Lafayette that the Council had not yet received. It concludes by saying, “Lafayette’s biased public input process violates the very core of AFFH. It excludes the disabled, large families, extremely low-income households, all of the groups whose needs a Housing Element is legally required to address.” This is proceeded by saying “almost all of the public commenters on Lafayette’s Housing Element for the past 4 months have been older, white homeowners. Older, white homeowners are important to the community as any other and their input is worth collecting, but since receiving its review letter from HCD, Lafayette’s Housing Element planning process has empowered older, white homeowners to dominate the conversation, causing the exclusion of many other stakeholders from meaningful consideration in the decision-making process.” He asked if this has gone to HCD.
Ms. Elrod said she was unsure because they have not received everything from HCD yet, but staff has requested letters of everyone who provided input to HCD.
Mayor Anduri asked what was Ms. Elrod’s feeling about the City’s process. Ms. Elrod said she thinks their process was very robust. She does not agree with the comments. She feels they reached out in ways in order to reach every single doorknob in the City, and not just homeowners but everyone. They had opportunities left and right and they continually looked to places like apartment buildings, faith-based organizations who represent groups. They could always do more, but the assertion that they have not done anything is really an unfair judgment.
Senior Planner Renata Robles added that they did meet with Inclusive Lafayette Boardmembers to discuss other mechanisms they felt would be appropriate to conduct further outreach and improve processes., and they did not have any concrete suggestions at the time.
Mayor Anduri opened the public comment period.
ROBERT LAVOIE referred to the letters he sent and wanted to highlight some things he did not get to earlier. Regarding yields over 100% likelihood, he was shocked HCD was questioning this, but they were talking about if the City had ground floor retail. Colin Elliott shared some models to show that are very viable in town with parking and which still hit over 100% on the yield with the base density. HCD was questioning the 95% yield used. In looking at the 2022 projects, 125% was the yield. The 2021 projects were 119% of the yield. In 2019 and 2018, there were 98% yield, and this was even with some of the homes where a developer accepted a lower density because they were considering the concerns of the nearby daycare and wanted to be good neighbors. Also, mostly new developments are displacing retail, so even though the City wants it, it does not mean it will happen.
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His second comment is the reference to the idea of a ghetto along the freeway, which he disputes. The highest value condos are Woodbury which are selling for between $765,000 and $1287/square foot. This is eclipsing the prices of Happy Valley mansions per square foot. This is a popular area to live, most of the beneficial services are in that area, and planners recommend developing low income housing in those areas. There are good schools within walking distance and BART is the only reliable and frequent mass transit. Grocery and service businesses are all concentrated in that area and he asked to look at 210 Lafayette Circle which are $2 million condos because people want to walk to services. This would also reduce the number of VMTs. He sent in the analysis on the ADUs. HCD has also been referring to height limits, setbacks, density caps, and parking requirements as significant restraints and yet the City has acknowledged it can only have 5 meetings and developers get the “rush treatment” through the planning process. He has seen single-family homes dragged on for years and yet developers can push their large projects through very quickly, so he thinks HCD needs to change that view. HCD is also not allowing the City to count parcels under .5 acres, but 2 of 3 of the past years have yields over 100% under one-half acre.
ALISON HILL thanked staff and the Council for all the work put into the Housing Element which is on-going.
She referred to ADUs, thinks they are a valuable piece of the process, and she recognizes they are not the only answer. She is not sure about counting applications and believes there is a gap or delay between applications and causing the ADU housing that is built. She also has read Mr. Lavoie’s comments on ADUs and thinks some of them would satisfy low cost housing. Those which are built for family members are only a portion and not the entire use of them. Some people will build them as rental units to supplement incomes, and everyone knows rents in Lafayette are quite high. From her personal experience, she thinks some people are building ADUs as their private guest houses so they will not be on the rental market. She would hope as this process moves forward, the City could find time to do some study or follow-up on ADUs and the way they are being used so they have a broader idea of the situation. She does like the streamlining of their processing which is now allowed when earlier it was not.
KATHY WALLEY, Walnut Creek resident, expressed her gratitude to City staff for their hard work and recommendations on the Housing Element. She is engaged with work being done in Walnut Creek to support housing within their City limits, and over the years it has become clear that their cities do not operate in silos but rather what occurs in one city greatly impacts what occurs in neighboring cities. Each of the communities are stronger when neighbors are strong. The capacity to provide housing for all residents of all income levels is largely contingent upon the work done in neighboring municipalities to do the work they can to support housing opportunities for all, be it by greater density by upzoning, increasing the percentage of ADUs assumed to be market rate, or adopting creative solutions and programs such as building affordable housing on faith-based lands.
Personally, one of the many reasons she strongly supports housing policies that promote opportunities for housing of all income levels is because the ways in which the housing crisis has impacted the field she works in. She is an American sign language and English interpreter who works in cities throughout the Bay area. Over the years, as the cost of housing continues to climb, she has observed a noticeable decrease and there are fewer numbers of interpreters who work in this highly specialized field who are able to afford living here. The result is that many of her colleagues are leaving the Bay area and clients are left without communication access.
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Another impact is that those interpreters who are best positioned to stay in the area are often those with access to inter-generational wealth or who have spouses or partners who work in high income sectors. As a result, their local interpreter pool is becoming more homogenous, less diverse, and less equipped to provide the culturally and linguistically responsive interpretation for the diversity of clients they serve.
While she works in one specific field, this same trend is occurring in many of the service-based fields that their community utilizes. Their quality of life is contingent upon access to services that they need to live a fulfilling life, a safe life, a life that has health care, a life that has those in the fields that provide them with the things they need, be it medical care or medical assistance or what have you, as well as interpreting. She hopes the Council can do whatever it can to strengthen this Housing Element to create more housing opportunities for everyone.
JEREMY LEVINE, Inclusive Lafayette, said in addressing a Council question, Inclusive Lafayette did not send their last letter to HCD. It was not intended as a public comment. They did not have a lot of time to gather their thoughts, so they wrote them quickly and submitted them to staff and wanted to discuss them with staff and explore opportunities to move forward without public criticism. He regrets it has come across the way it has. They have some policy proposals they think could help the City get its Housing Element certified and their goal is to work with the City to get a good plan for housing the State can certify.
When HCD asks for more analysis in their letters it can be tempting to try and create these ever more elaborate analyses to try and justify the status quo is fine and that the policies the City has are not a constraint. The City could save itself a lot of time and do a better job promoting housing by focusing on policy changes to address the constraints it has in place rather than the analyses and what they have done in the past. When thinking about how to respond to what HCD is asking and how to contextualize what HCD is asking it is worth considering HCD takes public comment very seriously as is required of them by statute. Public comments that accurately reflect requirements of State law should influence the City’s analysis. HCD takes that seriously and it is part of their mandate. This is why it is hard to copy and paste methodologies from other cities because those cities did not get the same public comments. He noted East Bay for Everyone and the Housing Action Coalition sent comments to the City which raised questions about some things in the Housing Element. When he began reviewing Lafayette’s Housing Element over 2 years ago, he was a volunteer and continues being a volunteer for everything he does in Lafayette. He works in housing advocacy as a professional elsewhere, has reviewed dozens of Housing Elements, and is confident that the City’s housing plan will be certified if the City follows Inclusive Lafayette’s proposals.
They wrote a letter with some of their recommendations reiterating them, and the City has and will hear from other boardmembers, and they look forward to working with the Council, staff, and the community on creating a great Housing Element for the next 8 years.
MAX HENINGER reiterated a point Mr. Levine made as a fellow Boardmember of Inclusive Lafayette, stating their goal is to continue to work with City staff and Council to get to the point where Inclusive Lafayette can write a letter to HCD in support of the Housing Element and urge its immediate certification.
This is why they want to continue to provide public comments with policy ideas to get to the point that they can be able to offer that support publicly. One of the policy ideas is in the staff report which surrounds supporting AFFH through the missing middle. They think this offers a tremendous opportunity to the City. Missing middle housing provides more affordable housing to both seniors and young people.
Many people cannot afford a 4,000 square foot home but they might be able to afford a 1,000 square foot home. So, allowing 4, 1,000 square foot homes instead of allowing a single 4,000 square foot home on a single lot, even though they would take up the same building mass, allows for a city to create more affordable housing. Critically, it is housing that either seniors or young people would be in a better position to afford.
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He also noted this is not a dramatic change from types of housing that already exist in Lafayette. His neighborhood, Sunset Village, had a picture in it from Ms. Elrod’s presentation. He walks by that home every day when he walks his dog and it is a duplex right next to a single-family home. Both are about the same size, yet it allows for smaller and more affordable units to be there. Their suggestion is that the City consider upzoning all D-1 and R-6 zoned neighborhood to allow a minimum of 4 units. This would be Sunset Village and the Trails neighborhoods by the elementary school. Because of SB 10, there would be no CEQA requirement to pursue this upzoning, which is an added benefit . He also said the idea around a faith-based overlay is interesting. It is a great way to get 100% affordable housing. He works in affordable housing professionally and they often look to work with faith-based groups to build, and often the zoning is a barrier. Knowing there is an overlay there could provide land that a willing faith-based partner could make come to fruition.
Mayor Anduri said Mr. Levine stated the City would save a lot of time if they made changes to policies rather than doing further analysis. Ms. Elrod said they may need to change some policies, add some policies or programs, but they also have been explicitly asked to provide more analysis. So, she feels very uncomfortable not complying with that request from the State and need to provide it.
Ms. Robles added that in both comment letters there is always a request for analysis and then a followon line to adapt programs to address this.
Councilmember Candell said she knows people are questioning the use of ADUs and how many are affordable. The City received the numbers they are supposed to use for those from HCD and the income percentages.
Ms. Elrod said the question for this is not the affordability distribution. That number was provided by ABAG in analysis with Berkeley, and HCD said the City can use it. But, the numbers themselves are something the City must generate.
Councilmember Candell said if the City upzones into R-1 zones she asked what are the ways the Council can make sure they are affordable.
Ms. Elrod said she thinks the theory of the missing middle is they also do it through the size of the units.
Presumably, a 1,000 square foot unit is less expensive than a unit that is 4,000 square feet. In terms of ensuring affordability, this has not been the question asked of the City. They have an inclusionary zoning program, are planning on reviewing it again in the future to look at possible changes, and they might be able to find ways to apply inclusionary to some of those kinds of units they come up with, but right now the ask of them is to simply provide housing that addresses what is termed “missing middle” without necessarily addressing specifically the affordability of it. It is presumed to be more affordable for someone making moderate income than someone making above moderate income.
Councilmember Candell asked if the City can add size restrictions. Ms. Elrod said she did not know but it is something they will look at as part of the Housing Element.
Councilmember Kwok said this is a lot of work being asked of the City to do the analysis described. There is a lot of staffing time needed and he asked if the City has sufficient staff and consulting time budgeted this year to really move at the speed needed.
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Ms. Elrod said this is a question to ask the City Manager and Planning Director. She thinks they are more attuned to what is going on. Ms. Robles said also as demonstrated in the matrix there are several questions staff still has from the State that will help direct the amount of staff time needed towards these endeavors, but staff can return with an update on that as to whether additional resources are needed.
Councilmember Kwok commented that he thinks it was helpful to put it into a matrix form, to rank it, to let the Council know guidance is needed, so he thinks within the last 9 or 10 days he felt staff had done a good job to scope the work.
Councilmember Gerringer echoed comments of thanks. Much of this requires getting answers from the State and getting HCD to set up meetings and technical sessions. She has heard from several people that they are having a hard time getting any response from HCD. She asked if there is a political way to make that happen or a path to get those conversations.
Mayor Anduri suggested leaving this with the consultant, the Planning Department, and the City Manager.
Ms. Elrod confirmed they are working through staff and moving up.
Mayor Anduri said he thought the matrix was brilliant. It organized things in a way that was very easy to deal with. He also thanked Mr. Lavoie, Inclusive Lafayette, and other organizations for their comments and encouraged everyone to keep providing input.
Councilmember Candell referred to the ADUs and the City said they were going to have a robust review process of how well they are creating and generating ADUs. She asked if there would be any benefit of doing any of that outreach now. If it is not the City doing it, some residents have offered, and she asked if that would be helpful.
Ms. Robles said staff would be happy to coordinate with any members of the public, but she noted as part of their last round of revisions for the Housing Element they did collect the contact information for ADU applicants for the past 5 to 8 years for the beginning part of the cycle and sent them a survey asking information about when they applied, what barriers they experienced, how many bedrooms, whether the unit was for family, what rents would be if renting it, and they received a fair number of responses. They have a program in the element to create a survey for applicants as they come in of their intentions, but whether it gets permitted or built in the end is also something they have surveyed for past applicants, as well. So, they will continue to look through that information and can seek out any other ADU owners.
Councilmember Candell said she would like to find out what tools the City has if they take on a broader overlay or upzoning to ensure they get affordable units out of development, which is the goal.
Vice Mayor Dawson stated it is an interesting nexus in terms of the next item which is the BOLD financing program. One of the things the Council talked about was how this would work if there was someone looking for financing in a single-family home, but the City wants to focus growth downtown. It begs the question that if they look at upzoning whether density bonus applies. If they have 4 units and one built smaller than the rest, where this ends and so this would be something to pursue figuring out, and she thanked staff for the work.
BREAK
Mayor Anduri concluded the item and called for a 5-minute break at 9:23 p.m. and thereafter reconvened at 9:28 p.m.
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13. PUBLIC HEARINGS
A. Tracy Robinson, Administrative Services Director
Consideration of Joining the California Municipal Financing Authority (CMFA) and Adopting the BOLD Financing Program for Creation of Community Facilities Districts for Facilities and Impact Fees
Recommendation: Conduct public hearing. 1) Adopt Resolution 2022-69 Approving, Authorizing and Directing Execution of a Joint Exercise of Powers Agreement Relating to the California Municipal Authority. 2) Adopt Resolution 2022-70 Authorizing Use of the Bond Opportunities for Land Development (“BOLD”) program and authorizing the California Municipal Finance Authority to Accept Applications from Property Owners, Conduct Proceedings and Levy Special Taxes Within the Territory of City of Lafayette Pursuant to the Mello-Roos Community Facilities Act of 1982, as Amended; and Authorizing Related Actions. 3) Approve “Exhibit A” for Resolution 2022-70 specifying the eligibility requirements for BOLD financing.
Administrative Services Director Tracy Robinson stated this item is an on-going public hearing regarding joining the California Municipal Financing Authority and adopting the BOLD Financing Program. This is the third time the matter has been before the Council. Several questions were answered and at the last meeting and the Council directed a subcommittee of Vice Mayor Dawson and Councilmember Kwok to specifically consider eligibility criteria for potential BOLD projects. The subcommittee met several times and as Vice Mayor Dawson alluded to earlier, felt the program could be very beneficial to help the City achieve its housing goals specifically by allowing developers an option for lower cost of capital. This could also be very good in terms of achieving affordable housing targets within the City, particularly because the City has an inclusionary housing ordinance and it may be challenging for developers to build that affordable housing. This gives them an option to lower their overall costs.
There were several eligibility requirements that the subcommittee considered. Ultimately, there are 4 they are recommending:
1) Projects be located in zones that allow for multi-family development. The wording on this is slightly different than it was in the staff report but this is clearer; 2) To ensure there are significant benefits to the community. Projects must include 1 of the following:
a. Affordable housing or other measures as proposed by the applicant and approved by the City Council. This was left open specifically so that developers could be flexible in coming up with creative ideas.
b. That the project go beyond the minimum requirements for public open space, be allelectric, or the project goes beyond the minimum public art requirement. This would allow staff and the developer to come up with creative ideas which the Council could consider.
c. To put a 1.8% maximum cap on the tax rate for any given parcel, including all the taxes and assessments. This would be calculated at the time of sale. It would not preclude any additional taxes being levied against the parcel if they were to pass. They believe this tax is a flat amount of money as opposed to a percentage tax, so the percentage will go down over time as the assessed value of the property goes up.
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3) To sunset the policy on December 31, 2031 which coincides with the end of the 6th cycle Housing Element. Sunsetting is proposed specifically so there would be a date certain in which the Council and staff could assess if this was a successful program and make a point of assessing it. If successful, the Council can continue it or choose not to approve projects if they do not feel it is working out the way they would like to.
Staff’s recommendation is for the City Council to adopt Resolution 2022-69 which approves, authorizes, and directs execution of the Joint Exercise of Power Agreement, adopt Resolution 2022-70 the use of the Bond Opportunities for Land Development (“BOLD”) program which is in Section 3 of the resolution referencing Exhibit A specifying eligibility requirements for BOLD financing.
Mayor Anduri opened the public hearing, and there were no speakers. Mayor Anduri closed the public hearing and public comment period.
Mayor Anduri thanked Ms. Robinson for moving this forward.
Councilmember Kwok stated the BOLD program is a financing program that helps to reduce the cost of capital for projects. Exhibit A puts some guidance on what type of projects could come in and request this financing, and he appreciated Jim Cervantes who participated in one of the meetings with the subcommittee. He is a professionally retired municipal bond consultant. They went through the very long list to see what was best for Lafayette and so this is also informed by one member of the public who has domain expertise.
He said Items 1-4 staff has read through. He proposed a clarification for Item 1. They received feedback from a member of the public on the sentence that states, “The project should be located in areas zone for multi-family use.” The amendment suggests, “The projects are located in zones that allow for multi-family development.” There is a slight nuance because their intent was to encourage multi-family development uses and this is language both staff and the subcommittee were amenable to.
They would like to further clarify that on Item 3 which discussed a 1.8% maximum cap on the tax rate for any given parcel, including all taxes and assessments. The State of California has a 1% parcel tax, and so the idea was to have not an unlimited ability but to have a cap. The City’s counsel has provided more precise language which states, “The City shall not approve any third party financing including the BOLD program that would result in a total tax on any parcel, including the 1% ad valorem property tax and any other parcel tax that exceeds 1.8%.”
Mayor Anduri stated one Ms. Robinson made was to delete “at least” from Item 2. It would read, “Projects must include 1 of the following:” Councilmember Kwok agreed with this suggested correction.
Vice Mayor Dawson referred to capping the taxes. One question they asked was whether the BMR units would be taxed a special rate or not or whether they would be exempt. Ms. Robinson said her understanding is the way this is structured is that this tax will not apply to the BMR, but she asked if representatives could answer this question more accurately.
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Jake Smith said this is an issue that can be addressed when they go to draft the RMA. On several of the projects they have, affordable housing projects have been excluded from the tax but in other instances there has been the case where they structure a special tax, so it is lower for those property types. So, there are a couple of ways to address concerns there and they address it when they start drafting the RMA and they walk through all the different property types. The special tax is usually built on the lot or unit size, so if they have affordable housing units that are smaller, they could consider that special tax might be lower but in some other instances, the local agency has requested those affordable housing units be excluded from the special tax.
Vice Mayor Dawson asked when the RMA is determined. She asked if it is per project or agreement in joining the CMFA.
Mr. Smith said the RMA process will kick off during the CFD formation process. They work with the developer and if the City of Lafayette has the cap of the 1.8%, they will work directly with the developer to come up with the proposed tax rates for the different property classifications. Based on that, they will run sensitivities with the developer to target a certain amount of capital the developer is looking to raise.
Based on those analyses when working with the developer and special tax consultant they will look at what different tax rates can generate in terms of proceeds. What usually happens to make housing more affordable or fall within the local agency’s requirements for that 1.8% is that they will either increase or decrease the tax rates to get to a point where the developer is happy with the amount of proceeds that can be raised and it is financially feasible to move with the project. On the flip side of that, the tax rate is also meeting the local agency’s goals and policies.
Mayor Anduri said what this is doing is setting a maximum. He asked if it is the implication that when the developer comes and makes a proposal for a project, he asked if the City would on a case-by-case basis say they think the tax should not apply to affordable units.
Vice Mayor Dawson said this is what she wants to clarify—whether it is done on a project-by-project basis and asked if the RMA is calculated before the project analysis is done.
Mr. Smith said the RMAs are drafted on a project-by-project basis. It is usually done with the developer and special tax consultant to look at comparable tax rates against different property classifications to derive something that will be palatable to the homeowners.
Mayor Anduri said if the City wanted to take the position that they are only going to allow this if a developer does not apply the taxes to its affordable units, they would put that in as an eligibility requirement. But, if they want to be more flexible, they would leave this as is and deal with it on a caseby-case basis with the understanding that in some cases it would be something they would want and City staff will be on the alert for that when the developer comes.
Vice Mayor Dawson agreed and said they want to be sure this is as much a tool it is also a tool for residents and affordability.
Councilmember Gerringer referred to the legal description of the 1.8% cap and Councilmember Kwok’s description that it includes the 1% property tax and any other assessments. This would include any current taxes at the time of sale, school measures, bonds, parcel taxes, etc. She asked if staff has a sense of what that percentage is right now, given schools depend on those assessments.
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Ms. Robinson stated she has not done an analysis recently, but staff believes it is roughly 1.2% right now.
Mayor Anduri said the way he reads what was read, the schools could adopt another 1% and that is fine.
It does not block anything that happens after the date of sale.
Ms. Robinson confirmed. She also stated Mike Whipple and Mike Howl are also requesting to speak.
Mayor Anduri asked and confirmed the public hearing should be re-opened which he did.
Mike Whipple, DFA, said he is the developer working with Lafayette Lane, said as it relates to the current project and the affordable housing component, the affordable housing is on a separate parcel and will not be within the boundaries of the CFD and will not be taxed which should give the Council some comfort.
As it relates to the overall tax burdens for what they are proposing with Lafayette Lane is they are proposing total tax rights that would include a future BOLD CFD that will be around 1.5% to 1.6% so well within the 1.8% threshold. He thinks in their preliminary calculations what they are looking at from the current ad valorem which is the 1% property tax plus the GO Bonds for school districts and other taxing districts, they were right there around 1.1% to 1.2% as well.
Vice Mayor Dawson asked what percentage of tax were they projecting on the special parcel district as part of that 1.6% or she asked if he was saying 1.6% in addition. Mr. Whipple confirmed the 1.6% is inclusive of everything. It is the current taxes from an ad valorem perspective which is 1.1% to 1.2%, any existing maintenance districts they think that would show up in the conditions of approval, plus the new proposed BOLD CFD to finance fees and infrastructure. Altogether, that comes up to about 1.5% to 1.6%.
Mike Howl, Miramar Group, thanked the Council and hopes the project can move forward. He wanted to clarify that the affordable portion of this project they are sponsoring the BOLD initiative for the city and using Lafayette Lane as an example is that it does not work well for rental housing because the tax is increased to the owner of the property and they end up paying a higher tax that they pass through back in rent.
Therefore, he wants to clarify they are using this only for for-sale units so the Council might want to clarify that for the City’s purposes in that there will be other for-sale projects which will have a percentage of affordable housing that would be for sale at a certain price. He thinks he calculated the City was at 1.3% now with all taxes for their project, and that they added .2% which includes both city and they expect this to reach out to both the school district and some of the utility districts which is included in their percentage. Assuming they can get that, they are at the 1.5% or 1.6%, but there is a good chance they would be lower than that just because of City fees and the school district.
Mayor Anduri said when Mr. Howl says the Council should clarify, he asked what exactly should be clarified.
Mr. Howl said he is just trying to point out how it is different for a for-sale versus a rental project, but he does not know how many apartment developers would finance that so they can pay a higher tax rate later because it changes the pro forma and financial capacity. He just does not see it used much in multi-family, but possibly Mr. Whipple and Mr. Smith could talk more about that. For their project, they are not going to do any taxing of affordable because their affordable is rental anyway. The Miramar Group looks at some of the tax issues and they have chosen not to do that because of the higher taxes that are passed back to the developer.
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Mayor Anduri asked if his comment is related to zones that allow for multi-family use. Mr. Howl said yes, but he is referring to rental versus for-sale. There is a big difference there. He said he was not sure the Council has to include something related to this, but he is just providing a perspective from an apartment developer of why they would never do that. And, he wants to make sure if they are doing it to spur housing, they will have some affordable for sale units that make sense for that program, but it does not work well for affordable rental units.
Vice Mayor Dawson said as these projects come up, there may be other offsets in terms of flexibility, such as impact fees that may need to be covered regardless of one over multiple owners of the property. She thinks that would still allow for that. Mr. Howl said it is at the discretion of the developer or the property owner as to how they want to address that, as it does allow flexibility. He was just making the point it may not apply well to the rental portion of affordable.
Mayor Anduri closed the public hearing.
Ms. Robinson stated she has an amendment from the City Attorney which would be in Section 3 of 2270.
To clarify, staff believes at this point that they want the Council to be able to make the final approval on these and not staff. So, the third line down states, “The form of such agreement will be subject to approval by the City Council appropriate staff of the City.” After Exhibit A, it will state, “…shall meet the requirements for BOLD financing set forth in Exhibit A hereto and any other requirements imposed by the City Council.” This gives maximum flexibility if the Council decides it has other things to impose such as for specific projects for specific reasons.
Councilmembers agreed with these amendments.
ACTION: It was M/S/C (Dawson/Kwok) to 1) Adopt Resolution 2022-69 approving, authorizing and directing execution of a Joint Exercise of Powers Agreement relating to the California Municipal Authority.
Roll Call Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
ACTION: It was M/S/C (Dawson/Kwok) to 1 Adopt Resolution 2022-70 Authorizing use of the bond opportunities for Land Development (“BOLD”) program and authorizing the California Municipal Finance Authority to Accept Applications from Property Owners, Conduct Proceedings and Levy Special Taxes Within the Territory of City of Lafayette Pursuant to the Mello-Roos Community Facilities Act of 1982, as amended; and authorizing related actions; approved “Exhibit A” as amended for Resolution 2022-70 specifying the eligibility requirements for BOLD financing. Roll Call Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok, and Anduri; Noes: None).
14. ITEMS REMOVED FROM CONSENT
A. Minutes
March 27, 2023
Recommendation: Approve.
Vice Mayor Dawson referred to page 3, italicized 3rd paragraph, and asked to strike the word “alone” after “There has been more vintage pipeline that has not been tested.” On page 3, second paragraph, there is a reference in Michael Dawson’s comments of FIMSA, which should be changed to “PHMSA” which is the Pipeline Hazardous Materials Safety Administration.
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Mayor Anduri referred to Councilmember Candell’s comments on page 10; “Councilmember Candell said it looks like YIMBY NIMBY and Branagh Development attorneys wrote letters.” ACTION: It was M/S/C (Candell/Dawson) to approve the Minutes of March 27, 2023, as amended. Roll Call Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok, and Anduri; Noes: None).
15. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Mayor Anduri thanked Suzanne Iarla for organizing the mugs celebrating Lafayette’s 175+ year anniversary. What they would ask is Councilmembers who are liaisons to commissions and committees if they attend their meetings to bring the mugs and hand them out to members and thank them for being part of Lafayette’s 175+ years of history and part of history going forward. If not, he asked staff to determine an alternate way to accomplish this.
Councilmember Gerringer reported that they extended the Call for Projects to April 12th from April 7th.
They got many great ideas and will put them together and have volunteer opportunities for those projects on May 1st. She asked those interested to go to [email protected] and find the RFP and she will reach out to some City staff in the next day.
Councilmember Kwok wished everybody a Happy Earth Month. Earth Day celebrations for Sustainable Lafayette will be held Sunday, April 23rd from 11AM to 2PM in Lafayette Plaza. In addition, this month is the Contra Costa Zero Waste Challenge where the City is challenging Orinda and Moraga. It became effective last Monday, April 4th and everyday an email is sent regarding actions to take. He asked everyone to sign up in Lafayette, noting they were slightly behind Orinda, and to take positive actions for the planet this month.
B. Mayor Anduri
Proclamation recognizing the Gold Coast Chamber Players and Pamela Freund-Striplen on their final concert on April 15th.
Recommendation: Approve the proclamation recognizing the Gold Coast Chamber Players and Pamela Freund-Striplen on their final concert on April 15th.
Mayor Anduri stated this Saturday will be the final concert for Gold Coast Chamber Players and Pamela Freund-Striplen, who have been an asset to the community. He was open to any amendments to the proclamation and asked if there were any public comments. There were no speakers.
Councilmember Gerringer commented that tickets are sold out, but there is a waiting list.
ACTION: It was M/S/C (Gerringer/Candell) to approve the proclamation recognizing the Gold Coast Chamber Players and Pamela Freund-Striplen on their final concert on April 15, 2023. Vote: 5-0 (Ayes:
Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
C. City Manager’s Update
Recommendation: Receive and file.
City Council Meeting Page 27 of 27 April 10, 2023
Administrative Services Director Tracy Robinson, on behalf of the City Manager, gave the following report:
• The City invites everyone to participate in the First Street Rain Garden Dedication Saturday, April 15th from 10AM to 11AM. The new Rain Garden is in downtown Lafayette at the corner of First Street and Golden Gate Way. In addition to treating stormwater runoff, the garden features a pathway and seating area to provide a quiet respite amidst mature trees and new landscaping; • Engineering staff is completing designs for the summer’s capital projects and planning specific projects and scopes for 2024. They will be sharing those with the Council at their first meeting in May;
• Spring Break Camp and Bunny Brunch were a huge success and staff thanked the Lafayette Youth Commission for volunteering at the event;
• Spring and Summer registration is open, and many camps and classes are filling up. Residents are encouraged to plan and reserve summer camp soon. Registration information can be found on the City website.
Vice Mayor Dawson thanked Mr. Katayanagi and family for help setting up the Easter Brunch.
16. CLOSED SESSION
Mayor Anduri opened the public comment period on the Closed Session item, and there were no speakers.
Mayor Anduri adjourned to Closed Session at 10:38 p.m.
A. Conference with Real Property Negotiators (Gov. Code section 54956.8) Property: 3370 Sweet Drive, APN 239-111-015 (trail easement) Agency Negotiators: Niroop Srivatsa and Jonathan Katayanagi Negotiating Party: Keith Magic and Marisa Magic
Under Negotiation: Price and terms of payment
REPORT OUT OF CLOSED SESSION
Mayor Anduri announced no reportable action was taken in Closed Session.
17. ADJOURNMENT – 10:54 p.m.
APPROVED:
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Carl Anduri, Mayor
ATTEST:
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Joanne Robbins, City Clerk