City Council and Creeks Committee Meeting Page 1 of 50 October 23, 2023 7 City of Lafayette
City Council
Minutes
Lafayette Library and Learning Center – Don Tatzin Community Hall October 23, 2023 3491 Mount Diablo Boulevard, Lafayette, California 6:30 p.m.
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City Council and Creeks Committee Meeting Page 2 of 50 October 23, 2023 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, and Kwok
Absent: None
Present: Creeks Committee: Chair Will Elder; Committee Members MaryJo Cass, David Clark, Christine Lee, and Peter Norton. Absent: Ron Hufft Staff Present: Niroop Srivatsa, City Manager; Greg Wolff, Planning and Building Director; Sonia Urzua, Assistant Planning and Building Director; Renata Robles, Senior Planner; Diana Elrod, Housing Consultant; 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/Gerringer) to adopt the agenda. Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
5. PLEDGE OF ALLEGIANCE – Mayor Anduri led the Pledge of Allegiance.
6. PUBLIC COMMENTS – (For closed session items) – None.
7. CLOSED SESSION
A. Public Employee Performance Evaluation (Gov. Code Section 54957) Title: Niroop K. Srivatsa, City Manager
B. Public Employee Performance Evaluation (Gov. Code Section 54957) Title: Mala Subramanian, City Attorney
OPEN SESSION – 7:00 p.m.
Mayor Anduri announced there was no reportable action taken in Closed Session.
8. PUBLIC COMMENTS – (For items not on the agenda)
LAUREN HERPICH invited the Council, City staff, and residents to the second annual Lafayette Community Sunrise Stroll at the Lafayette Reservoir to be held Sunday morning, November 12th at 8 AM. This is a great opportunity to meet new neighbors and give thanks to the great town in which they live. All ages are welcomed, as well as leashed dogs, but there should be no bikes, roller skates, or scooters. Donuts and coffee will be served courtesy of local Dunkin Donuts owner and resident Matt Cobo.
City Council and Creeks Committee Meeting Page 3 of 50 October 23, 2023 JENIFER PAUL spoke about the Council’s receipt at the end of the October 10th Council meeting from outside agencies regarding Israel; one from the American Jewish Committee urging the City to adopt a resolution in support of Israel, and the other from JCRC (Jewish Community Relations Council) who recommended the City not issue a resolution. She noted the excerpt from the email was extremely misleading, and not shared was that the JCRC stated it unequivocally condemned the Hamas terror campaign and its unwavering support of Israel’s rights to defend its citizens. The JCRC was not requesting the Council stay silent, but quite the opposite. They stated that they appreciate the partnership with local elected officials and offered many ways the Council could support its Jewish constituents such as speaking out on social media and attending events in solidarity with Israel, calling and texting those who might be impacted by the conflict and sharing their support.
The JCRC was suggesting action instead of words printed on a paper proclamation. She requested copies of those emails which were intended for the entire Council and not just Mayor Anduri and therefore requests the Council create consistent policy and procedures surrounding communications for when one Councilmember receives something that is very clearly intended for the entire Council to see. Lastly, she requested an update to the policies and procedures for proclamations, resolutions, and recognitions and asked that the same should be done for flag raising of other nations and groups.
STACY SCHIRMER said she also tuned into the October 10th City Council meeting expecting to hear members issue full throated repudiation of the recent terrorist attacks in Israel and spoke of then Mayor Anderson’s 2020 broadcast regarding George Floyd and said at the June 8, 2020 meeting, Councilmembers agreed to write a letter or proclamation as urged by Pittsburg Mayor Killings condemning the actions of the Minneapolis police officers. At the February 28, 2023 meeting this Council authorized the purchase of a Ukrainian flag, and on March 5, 2023 the Council also voted unanimously to fly that flag in the place of the U.S. flag in Lafayette Plaza for one month to show solidarity with Ukraine.
She truly expected to hear something from the current Councilmembers regarding events in Israel. To her surprise, the only mention was towards the end of the October 10th meeting when the Mayor spoke of the two communications received where the JCRC opined that it was not productive for local bodies to weigh in on international affairs because such efforts may “create or exacerbate unwanted community tensions.” She then described the silence after Mayor Anduri’s statement regarding the JCRC’s comment about their belief that issuing resolutions was not productive and the fact that the Council had been willing to speak out loudly regarding other national and international violent tragic events. Therefore, she asked the Council to stop all proclamations and be consistent with its policies.
JEAN FOLLMER suggested that going forward, in addition to thoughtfully procuring a system for proclamations and other sorts of recognitions, the Council should also carefully review and consider any type of support or perceived support for certain political groups. In particular, she asked the Council that for future references to BLM or Black Lives Matter, to be very careful and specific as to whether or not they are referencing the statements or the group because the group as recently as last week issued some very anti-Semitic statements that she cannot imagine any Councilmember would be comfortable with.
She sent a screenshot of one of the Twitter feeds to the Lafayette School Board and reminded them that she had cautioned them against using references to certain groups when she was still on the school board, and she urged the Council to take great caution going forward.
9. CITY MANAGER’S UPDATE
City Council and Creeks Committee Meeting Page 4 of 50 October 23, 2023 City Manager Srivatsa gave a shout-out to Chief Ben Alldritt, his team, and the Chamber of Commerce for a very successful Res Run on Sunday. The Police Department oversaw safety and security for the event.
From Engineering, there was a slide in the City’s most recently acquired property—the Batwing property which is south of St. Mary’s Road. The slide occurred during the December storms and the City will be filing a request for reimbursement from FEMA. They await FEMA funding and will repair the slide before the next winter storm.
From the Parks, Trails and Recreation, today the Lamorinda Village and the Spirit Van held a joint luncheon at the Community Center. It was very well-attended meeting and luncheon. The play area at the Lafayette Community Center is closed for construction and the existing play equipment is being donated to Choice in Learning, which is a pre-school associated with Choice in Aging. The non-profit will renovate the equipment and provide it to the Montessori Preschool.
Lastly, she announced that the Government Finance Officers Association of the U.S. and Canada has awarded the Certificate of Achievement for Excellence in Financial Reporting to the City of Lafayette for its annual comprehensive financial report for the last fiscal year. Its attainment represents a significant accomplishment by a government and its management. This is the 8th award for the City of Lafayette, and she recognized the City’s Finance team.
Mayor Anduri opened the public comment period, and there were no speakers.
10. PRESENTATIONS
A. Beth Needel, Executive Director, Lafayette Library and Learning Center Foundation Update from the Lafayette Library and Learning Center Foundation Recommendation: Receive and file.
Beth Needel, Executive Director, Lafayette Library and Learning Center Foundation provided a short video created for the foundation over Labor Day weekend in 2022. The Barlow and Mulvaney families underwrote Kelly Corrigan’s, “Tell Me More” PBS television series to support and promote their Library and City. The series premiered last Spring on PBS as Series 5, and she displayed and described appearances in the video.
Mayor Anduri thanked Ms. Needel for all she has done over the past 10 years. The title of an article when he first met Ms. Needel in the Vistas refers to her as “Impossibly, Impressively Qualified.” He then presented Ms. Needel with a proclamation and read it into the record.
Ms. Needel recognized the level of dedication of those who volunteer and serve in the community, and thanked the City Council.
Councilmembers thanked Ms. Needel for her dedication, cited their gratefulness for her commitment and contributions to the community, and wished her well in her retirement.
Mayor Anduri opened the public comment period.
RITA IORFIDA said she and Karen Mulvaney were part of the founding board members and worked hard with Beth Needel over the years, and Beth has always come through for them. Beth loves the Library, has given more than 100%, and is a lifelong friend as well.
City Council and Creeks Committee Meeting Page 5 of 50 October 23, 2023 KAREN MULVANEY said she remembers when they interviewed Beth and went through the process to find a new Executive Director. She would say what Beth brought was exactly what they needed. Beth is a tremendous team builder, has blossomed partnerships throughout the City, and they have all grown from her dedication. She is truly more about the group and team than about herself, and this is the reason it has been so successful. She thanked her and wished her well in her retirement.
CARRIE BARROW said she knew Beth before she came to the Library and was very fortunate to work with her at the Oakland Zoo on many events. When she found out Beth was moving to Lafayette she was very excited. She has been part of the library as a donor; however, also knowing Beth was going to lead the Foundation was an extra bonus for the Library. She came on as a board member right after she joined as the Executive Director and she would not have done that if it had not been for Beth. She thanked her for the many years they had and will have forever.
LISA SPIEGLER, President of the Library and Learning Center Foundation and on behalf of the Board of Trustees, she honors and celebrates Beth. She spoke about meeting Beth during the pandemic and meeting her virtually. Beth was a person who dug deep to bring them back to what the Library offers as a sense of place, connection, and grounding the community at a time when they needed that. The programs and events Beth spearheaded during the pandemic kept the Foundation running and thriving. She referred to the Virtual Night at the Library they put together which was very impressive, cited her vision for teens, pre-teens, and seniors, and said she will miss her.
SUZY PAK said she was on the Foundation Board 10 years ago when Beth was hired and she remembers thinking about how she was coming with experience from the Oakland Zoo. She thought about the comparison of animals and humans, and realized they all need great care and feeding and great use of resources. She admires Beth for her ability to take what the existing resources are and stretch them to include everyone. People come from all over to the Library because there are great programs and events.
Beth was able to take the vision of the founders and expand them to everybody who wanted to be a part of them. She will miss her nurturing in quiet ways and her welcoming character. She is a great ambassador of Lafayette and is very happy to have known and worked with Beth.
Mayor Anduri called for the next speakers who were Zoom bombers, provided comments not on topic, and were muted. The City Attorney reminded people that if speakers continue to deviate from the speaker process, they will be cut off and not allowed to speak.
He then asked speakers associated with the Library Foundation and others to come forward for a photo opportunity with Ms. Needel.
B. Lt. Ben Alldritt, Chief of Police
Recognizing Police Academy Graduates from Fall 2022 and Spring 2023 Recommendation: Receive and file.
Chief of Police Lt. Ben Alldritt recognized Police Citizens Academy graduates from the Fall 2022 and Spring 2023 Citizen Academy and spoke about their interaction with law and traffic enforcement. They worked with investigations where they staged a bank robbery, worked with crime scenes, learned how process a scene, went through various scenarios with the use of force simulator, held a day at the range learning firearm safety, held tours of the coroner’s office, dispatch center in Martinez, and took a tour of their main jail. Chief Alldritt stated they will be hosting a Spring 2024 Academy and commented that they had many couples participate in the last two classes.
City Council and Creeks Committee Meeting Page 6 of 50 October 23, 2023 He introduced Judy Peterson from the Crime Prevention Commission and said Denise Brown could not be present. Both individuals help to put on the Academy, conduct logistics, communications, and attend sessions. There were 11 graduates in the Fall 2022 Academy and 12 in the Spring 2023 Academy. He then presented certificates to graduates and took a group photo.
Councilmember Kwok said as Council Liaison to the Crime Prevention Commission and on behalf of the City Council, he expressed his thanks to those who volunteered time to learn police work. They do fantastic work and he recognized the time taken to learn about the Police Department. He also recognized Judy Peterson and Denise Brown for their work.
Mayor Anduri opened the public comment period, and there were no speakers.
A photo was then taken of graduates.
C. Thomas Adams, Avenu Insights and Analytics
Sales Tax Presentation
Recommendation: Receive and file.
Thomas Adams, Avenu Insights and Analytics, said he is the City’s sales tax consultant and meets every quarter with the City staff. Their company provides services to audit the City’s sales tax to ensure the City is getting all the sales tax the City is entitled to and to maximize its revenues. The other service is going through every quarter to see how businesses are performing and forecast revenues for the upcoming fiscal years. He will provide information on Q2 data of the calendar year which is April-May-June and how it corresponds to the last quarter of the fiscal year, so it is the closing quarter of the fiscal year.
Mr. Adams presented a snapshot of the many things that occurred since the pandemic. They had a downturn for close to one year in 2020, a significant recovery for about 5 quarters in 2021, and starting into 2022 they had some post-recovery digits where they seemed to be getting to a new normal. However, every time they turn a corner something else pops up and it has been a topsy turvy few years. They had the federal funds rate which has been going up, inflation has been coming down, gas prices are all over the place, and it has been challenging from their perspective to try to project sales tax. It is getting a bit more stable over the last few quarters.
In terms of drivers, one main driver is the City’s restaurants. Retail continues to hold its number 2 spot.
The third is internet non-local and pool, which is called use tax. It is typically coming in from out of state.
Some others are local food markets, as well as gas stations. Some of the smaller sales tax producers are construction, B2B, and miscellaneous.
Regarding recent cash performance, the City was number 14. For this quarter the City is up 8% for cash which was good compared to the County overall which was flat. Regarding economic numbers they look at it from a cash perspective which is how much money is coming in the door. They look at it from an economic perspective which looks at how much cash is coming in the door and this is what they forecast.
Total receipts are at an all-time high at $3.45 million. They net out the County pool which is the use tax item, administrative costs to the State, other adjustments for different re-allocations and cash adjustments, and they get to the local business line which is what they are tracking over this time period.
City Council and Creeks Committee Meeting Page 7 of 50 October 23, 2023 They also track different elements of the economy so the Council can see retail, food, and restaurants.
Much of the report is confidential and they cannot share individual business performance but they try to break things out to show what the City might be interest in.
Restaurants was one of the most impacted areas of the pandemic. For Lafayette it lasted longer than much of the rest of the state, but they have come back pretty strong in the last 2 years. Transportation shows pretty similar numbers. For retail, the City is a little below where they were pre-pandemic which is not unusual. Retail was eroding a little bit due to internet. Brick and mortar retail was slowing down even before the pandemic occurred and, in some areas, it never came back. Also, they are looking at price increases of 15% to 20% over this 4-year period. Ordinarily it will be about 2% a year or for a 4-year period, 8%. Vehicles were much higher but for restaurants and retail, price increases were 20% over during this time period. Construction and B2B are smaller pieces of the City’s overall pie, and the food item is the biggest piece of the overall pie.
Mr. Adams then displayed the 5-year history with column totals and said for this quarter the City is just slightly down about 1% or flat from an economic perspective. Retail is slightly down. Food continues to have a bit of growth and restaurants have a longer trail to the recovery for many areas. Transportation was an area down which is largely due to the price of gasoline being down in Q2 compared to the same quarter the prior year which is when prices for gas went “through the roof.” They have since seen prices remaining high and the third quarter will remain a bit of a drag on the City’s overall sales tax.
About 20% of the City’s sales tax comes in through the County pool. These are things like e-commerce, construction, or B2B, materials coming in from out of state where use tax is applied there. For this quarter, the City is up about 10%. The County pool is how local businesses are doing as a percentage of all businesses throughout the County. If the City’s businesses are doing better than everybody else, the City’s percentage is going to come up, acquire a larger slice of the pie, and this is why the City is up 10% where the overall County is up about 2 ½ %, which is a good thing.
In terms of sales tax future, they try to predict where the City will finish the year and what upcoming years might look like. For last year, they thought the City would finish at $3.435 million and, for the current year, at about $3.459 million. More this year, the City was at $3.452 million or about $17,000. For this year they are looking at slow-ish growth, as they are seeing slowdown overall in the economy for the next few quarters. This is not necessarily a recession but more of a slowdown.
Mr. Adams then presented an historic chart showing where the City has been in the past. Ordinarily, with inflation boosting prices 20% they would expect the City to be above the dotted line. This could be seen as a good thing where there is lingering recovery, but that has not quite happened yet for the local business community.
In terms of current assumptions, there is a mild slowdown starting right around the middle of the year.
They have not seen the data for Q3 yet but are saying Q3, Q4, and Q1 will be fairly slow. The Federal Reserve interest rate increases are cooling down the economy to a certain extent, but the economy seems to be cooling on its own, and whether the interest rates is the reason or not is still up for debate. But, inflation has been coming down so this is a good thing. Inflation during the pandemic has been very unusual because of supply side issues as well as demand side issues.
City Council and Creeks Committee Meeting Page 8 of 50 October 23, 2023 They are looking at more moderate levels of inflation next fiscal year. Most analysts think that if a recession does happen it will be fairly mild and of short duration, and the delta between a recession scenario and a non-recession is not that much difference. They hope the City will turn a corner and start seeing the new normal, but they are still seeing turning the corner and having a fuzzy picture of what is going on ahead. Greater levels of uncertainty means that greater potential variance for the forecast, but this City tends to be more steady-eddy and a little bit easier to predict than some that have more volatility.
Even if they did have a bit of a recession, he did not think it will impact Lafayette as much as what they might see in other areas that, for instance, are more reliant on car sales.
In summary, there is the recession uncertainty, the federal election this upcoming year, as well as leadership events going on and how that will affect the economy, a potential federal shutdown, whether they will experience a downturn recession, how deep, how long, gas prices remain volatile especially in California, and lingering inflation and how the feds are going to approach that in the next few quarters.
They have seen unusual savings rates come down, debt going up, and again, ultimately they are trying to see when they are going to achieve that new normal and what it will look like. They are not quite there yet.
Mayor Anduri asked and confirmed there were no questions of Councilmembers.
Mayor Anduri opened the public comment period, and there were no speakers. He and Councilmembers thanked Mr. Adams for his presentation.
D. Creeks Committee
Annual Update from the Creeks Committee
Recommendation: Receive and file.
Will Elder, Creeks Committee Chair, thanked the City Council for their continued support of their projects.
This year, the Committee lost Phil Bradley who was an 8-year member, and his work was very much appreciated. Christine Lee is now on the committee and replaces the vacancy. He said each member will say a bit about things they worked on over the past year.
Chair Elder said most, if not all Councilmembers were present for the opening event of the First Street Rain Garden project, which was fun. They thank the Council and City staff for their work on it, as well as the PTR Commission for their support on the project, and cited it as a great public amenity.
David Clark reported that after about a 5-year effort, the group successfully were able to codify the Downtown Creeks Plan.
MaryJo Cass said Ron Hufft is not able to attend tonight, and she said he is spearheading the restoration work they have been working on in the Gazebo area and at the West Reach, which is across the street from the Veterans Building. They have also worked on restoration at Las Trampas Creek at Leigh Creekside Park. During this process, they have collaborated closely with the Walnut Creek Watershed Council. Their creeks fall under this watershed, so the Committee collaborates closely with them, and Ron Hufft is also on the Board of the Walnut Creek Watershed Council. They are using volunteer events, and when the City organizes volunteering it helps the creeks a lot. They make huge strides forward with removing invasive species and planting native riparian plants.
City Council and Creeks Committee Meeting Page 9 of 50 October 23, 2023 Peter Norton reported that they completed installation of signage where their roads in Lafayette cross all seven creeks. They were fortunate to secure the help to dig holes by Brayden Christy who received his Eagle Scout award through this effort. As a commemoration, two meetings ago the Committee awarded Mr. Christy with a nice plaque with one of their creek signs in his honor. It was a very positive result and hopefully when walking and riding at certain creek heads, people will see their work.
Chair Elder said one other thing they have done this year is update of their Homeowners Creek Guide to Maintenance and Riparian Planting. It was 20 years out of date and they have tried to work on it for years.
Over half of the things in it were things people should not be doing to the creeks themselves but rather hiring someone and obtaining permits. They also updated the City’s website with new information that takes people to other websites such as the County website, in particular, for guidance.
Christine Lee said the Creeks Committee will continue to monitor City meetings. They have Committee members who have been assigned to track other City commissions and committees and are looking for any impact the Committee can have on other business and vice versa and what is happening that may affect the Creeks Committee. They will bring the information they learn back to their committee.
Chair Elder concluded and said they are hoping to be successful in obtaining money for the West Reach project and are looking forward to implementing it if and when monies come in. In the meantime, they will look at additional options to obtain grant funding to support that project, as well as others in town.
They will continue obtaining funds from the Walnut Creek Watershed Council for restoration work at several sites in the City and obtaining mitigation monies that comes through them to continue that work.
They will also hold more volunteer events and will take part in the Community Day.
Lastly, they are looking at how they might implement the Riparian Vegetation Plan that was identified in the 2017 Downtown Creeks Plan. They are looking for creative ways of getting that funded. They welcome Council ideas and said they will continue in their search in how they will get the Plan developed.
Mayor Anduri thanked the Creeks Committee members for all work and accomplishments for the year, as well as for ambitious projects coming up. He commented that the signs by the creeks exceeded his expectations and really look nice, stating they familiarize people to the actual names of the creeks.
Councilmembers cited creeks as an asset to the community, recognized the work and research by committee members, and welcomed Christine Lee to the committee.
Mayor Anduri opened the public comment period, and there were no speakers.
11. CONSENT CALENDAR
Mayor Anduri requested removal of Item 11C for the City Attorney to address an issue. There were no other requests for removal of items or public comments.
A. Minutes – October 10, 2023
Recommendation: Approve.
B. Ordinance 687 Updating the Lafayette Municipal code Section 6-25 Signs and 6-26 Public Art CEQA Determination: Exempt pursuant to California Code of Regulations Section 15061(B)(3) Recommendation: Waive second reading and adopt Ordinance 687.
City Council and Creeks Committee Meeting Page 10 of 50 October 23, 2023 D. Memorandum of Understanding by and Between the City of Lafayette and All Ages Recreation Downtown Regarding Funding for Design of the Two-Park Collaborative Concept.
Recommendation: Authorize the City Manager to execute the Memorandum of Understanding by and Between the City of Lafayette and All Ages Recreation Downtown Regarding Funding for Design of the Two-Park Collaborative Concept.
ACTION: It was M/S/C (Gerringer/Dawson) to adopt Consent Calendar Items A, B, and D. Vote: 5-0 (Ayes:
Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
12. OLD BUSINESS – None.
13. STAFF REPORTS – None.
14. PUBLIC HEARINGS
A. Greg Wolff, Planning & Building Director; Renata Robles, Senior Planner; Diana Elrod, Housing Consultant
GP01-23 Housing Element & EIR – The City of Lafayette 6th Cycle Housing Element and the Environmental Impact Report (EIR) analyzing impacts of growth stemming from the housing plan and housing opportunity sites identified to accommodate the mandated Regional Housing Needs Allocation of 2,114 assigned to Lafayette, plus a buffer, which total approximately 3,000 new housing units between 2023-2031. The Housing Element is also required by State law to contain programs to Affirmatively Further Fair Housing. The draft Housing Element Update can be found at www.planlafayette.org; the draft and final EIR can be found at www.lovelafayette.org/CEQA.
Recommendation: Provide feedback on revisions and direct staff to submit the Revised 6th Cycle Housing Element to HCD for review.
Diana Elrod, Housing Consultant, gave a PowerPoint presentation regarding update on the Housing Element, and said staff requests feedback and direction from the Council, and will provide the timeline leading up to this meeting, follow-up steps, opportunity sites updates, addressing public comments regarding DeSilva South, discussion on realistic capacity and future development, and redlines to the Housing Element. The Council and staff will talk more on the zone density, consider adding a program requiring future multi-family housing to be built at least 88% of zone capacity or what is called a minimum density requirement, direct staff to submit an approved revised draft Housing Element to HCD on October 26th, direct staff to prepare necessary General Plan and zoning amendments to enable adoption of the Housing Element and zoning components by January 31, 2024.
Ms. Elrod provided background of things which have happened in the recent past, stating they had a 7- day public review period that began on October 19th and will end on October 25th which is a statutory requirement. After submitting the revised Housing Element on October 26th HCD had a statutory 60-day review which will end on December 26th. Rezonings must be complete by January 31, 2024 which includes adoption of the revised Housing Element done in that month. Not meeting the January 31st deadline would increase the City’s exposure to the builder’s remedy projects. She noted the City already has exposure but the statutory deadline for rezonings is January 31, 2024, which increases exposure at that time.
City Council and Creeks Committee Meeting Page 11 of 50 October 23, 2023 Ms. Elrod then provided an historical background of the work of staff and the Council on the draft Housing Element, its submissions to HCD and review letter, preparation of a variety of revisions, discussion of AFFH programs, meetings with the HCD reviewer, Council review of the Safety Element, further discussion of opportunity sites and the Safety Element, and further discussion of opportunity sites.
Regarding next steps, if the Council decides staff should resubmit to HCD, staff will do so on October 26th.
During November and December, staff will prepare rezoning documentation, objective standards for areas to be upzoned, and FBO (faith-based organization) sites. December 26th is the deadline for HCD to return with comments. December 18, 2023 would be review of the Housing Element, GP designation, and zoning including objective standards at the Planning Commission (PC) meeting. January 8 and 22, 2024 would be review by the City Council including GP designations and zoning including objective standards, and January 31, 2024 is the statutory deadline to rezone after which time exposure to builder’s remedy becomes more significant.
Ms. Elrod then discussed follow-up work by staff from the last meeting as:
1. Increased the ADUS to 27 units per year over the 8 years for 216 units total;
2. Developed scenarios including FBOs in the sites inventory at 35 du/acre;
3. Retained the 88% capacity analysis;
4. Kept the Lafayette Plaza Shopping Center site at 1.32 acres; and
5. Added back in the Desco parking in front at 3675 Mt. Diablo Boulevard, as well as the vacant building at 3687 Mt. Diablo Boulevard
There has been no change in the downtown density since the Council adopted in January. Governor Newsom did sign SB 4 on October 11th which allows development on both faith-based and higher educational institution lands. It would be required at 30 du/acre as a minimum density for Lafayette. This also requires project labor agreements or prevailing wage, and developments are not subject to CEQA review. Regardless of what the City plans to do with FBOs, it will need to ensure objective development standards are in place by January 1st when the law becomes effective, should a church wish to develop on their property.
Ms. Elrod referred to FBO income distribution and said the distribution would be heavily skewed towards very low and low, some moderate, and some above moderate, which is consistent with SB 4. The question has come up whether or not the City can use FBOs in the sites inventory, and the answer is “yes.” It has been occurring in Orinda, Los Altos, Long Beach, Redondo Beach, Laguna Beach, and El Monte, and the State is accepting the use of FBOs as opportunity sites to meet RHNA.
Based upon all information Ms. Elrod provided, the City roughly has a 19% buffer for the low and very low income, an overall buffer of 52%, and this includes FBOs, and all of the rezonings they have had in place since January.
Regarding DeSilva South, there have been many public comments requesting putting up to 16 acres of DeSilva South back into the inventory. This site was originally removed by the Council in November 2022 as specifically the Council elected not to include any sites that were in the very high fire severity zones in the scope of the FEIR. The DeSilva site is not already in the EIR. In discussions with the City Attorney, these amendments will push the City further beyond the January 31st deadline if they were to go back and add in the DeSilva South site.
City Council and Creeks Committee Meeting Page 12 of 50 October 23, 2023 Regarding realistic capacity, Ms. Elrod said staff has shown in its documentation that recent non-density bonus developments average about 88% of zone density; however, HCD is not certifying Housing Elements with realistic capacities closely approaching 100%. Some jurisdictions have attempted to use but have not been permitted by the State. Orinda’s Housing Element is certified and their actual development averages 88% of zone density, but their inventory projects only 60% of zone density. San Ramon’s Housing Element was also certified. Their average development was 80% but their inventory projects only 75% except in mixed use zones which is 60%.
Ms. Elrod said the Council will see from repeated public comment included in this round where some advocates are arguing that Lafayette’s 88% proposed realistic capacity should be based on a different mix of developments which would yield a lower number. They can discuss what those are, but the overall thrust is that some advocates are saying 88% is too high. Should HCD disagree with Lafayette’s proposed 88% realistic capacity, they fear there will be additional comment rounds with the State and the City will not meet the January 31, 2024 deadline.
To address this and other similar issues some jurisdictions are requiring a minimum density to be built in future developments. The Council and staff have discussed this in the last Housing Element of this possibility but it did not happen. In this cycle, Danville adopted zoning changes in January 2023 that provide a range of densities from 30 to 35 du/acre with the minimum at 30 du/acre. In other words, future developments must build at least 30 du/acre which is 86% of the 35 du/acre density range. In other words, Danville’s minimum density is therefore 86% of total zone capacity.
Requiring all future multi-family housing developments in Lafayette to be at least 88% of zone density as a requirement would render the realistic capacity arguments moot. Staff has deep concerns that the State is traditionally opaque when it comes to telling the City what it can and cannot do and simply says the City has not given them enough information. They could go round and round on this for a very long time.
Ms. Elrod then referred to revisions to the Housing Element which are all redlines in the packet:
• Staff has updated the prior Housing Element’s review accomplishments to address some questions that the State has asked for.
• Staff provided additional narrative for local factors impacting AFFH. • Staff has a revised AFFH inventory analysis that also includes FBOs showing FBOs do not increase concentrations of lower income households in already impacted areas, etc. • The inventory methodology was revised to address concerns expressed about each individual site’s feasibility for development and realistic capacity. Staff did this through analyzing each site through a lens of a variety of objective criteria and determined which ones they could include and which ones they could not include. For example, part of the reason the whole Desco Plaza was not included was because they felt the one parcel in the middle did not meet enough of the criteria.
• Staff made modifications to the inventory to add FBOs in the portions of the Desco Plaza properties, as well as new narrative to describe these changes. • Staff provided additional analysis on non-vacant sites and their suitability for inclusion in the inventory.
• Staff has new discussion on constraints analysis in areas HCD specifically asked them to provide smore information on.
• Staff has added programs to address mobility opportunities in high resource, lower density areas of the City which was an AFFH concern which, in fact, the FBOs help do amongst other things.
City Council and Creeks Committee Meeting Page 13 of 50 October 23, 2023 • Staff has made revisions throughout the documents to provide additional clarity, commitments, and timing. They have gone from a handful of programs in the last Housing Element to many now.
The number of programs they actually make commitments to doing things is far beyond what they have ever done before.
With that, Ms. Elrod asked that the Council provide feedback on the draft and its attachments. Ideally, staff would like the Council to approve the addition of a program to require future multi-family housing to be built at least 88% of zone capacity as a minimum density requirement. Staff would like the Council to direct staff to submit the Housing Element Update to HCD following completion of the 7-day public review, and direct staff to begin drafting necessary zoning amendments to ensure the City can adopt by the end of January 2024. She stated she was available to answer questions.
Mayor Anduri referred to the slide covering timing and next steps. Staff has the date of December 18, 2023 for review by the PC. He asked if it is possible to go to the PC if HCD takes the full 2 months to get back to the City.
Ms. Elrod replied staff will be asking HCD for an expedited review. HCD has until December 26th and sometimes they will do an expedited review and sometimes they will not. She thinks staff probably has enough information to go to the PC with what they have and then can re-apprise them in January, if needed about any other changes or things staff did not think of which HCD returned with. But ideally, staff wants to get started on the GP changes and zoning, including objective standards because that will take time to implement and have read.
Mayor Anduri asked if staff is therefore aiming to get the second reading of the zoning changes in before January 31st, and Ms. Elrod said yes, ideally.
Mayor Anduri noted that while HCD has 60 days, it is entirely possible that they would come back in 30 days. Ms. Elrod said they must plan for the worst case scenario which is the 60 days. Staff has tried repeatedly with the State to get them to meet and talk about AFFH concerns and site selection criteria, and they have only had limited success and they have fallen on deaf ears. So, they will ask for a meeting with them and ask for expedited review, but they cannot guarantee it.
Councilmember Kwok referred to the second to the last slide with the four “asks” staff had. The second ask related to the 88% and having that as a minimum requirement to build to. He asked to describe how the City would implement that and, if staff did implement that, he asked if this is something that stays there forever or asked if it could be adjusted later on.
Ms. Elrod said theoretically it could be adjusted later on; however, because they would need it to meet RHNA they would have to be very careful about not changing it during the cycle unless they could prove developments were coming in differently. In terms of the underlying zoning and the 88% yield, they cannot demonstrate less than 88% right now. To invoke a minimum density requiring it would “cement” that into the Housing Element, rendering some other arguments that they will go back and forth on moot.
City Council and Creeks Committee Meeting Page 14 of 50 October 23, 2023 Councilmember Kwok said by setting it at 88% he asked if it discourages less housing that might be built.
Ms. Elrod said they would have to do 88% at least in terms of the Housing Element opportunity sites. This is what the requirement would be. They are required in the Housing Element to say they will zone “x” acres at this density and “x” acres at this density, etc. She would defer to the City Attorney about whether the 88% would apply across the board or only to opportunity sites, but thinks overall the 88% zone capacity as a minimum density is the only way the City can move forward without having a long back and forth with advocates about what their actual realistic capacity is. Regardless of doing many density bonus projects, it does not matter to the State.
Overall, the City is doing everything to try and guarantee that it can get certified by the end of January.
This is why they have made their recommendations. Some jurisdictions in Southern California are still going through new iterations with HCD, are still not certified, have builder’s remedy projects, and this is something the City would like to avoid.
City Attorney Mala Subramanian said at a minimum it would have to be all of the opportunity sites at the 88% minimum capacity as staff mentioned to address the question of whether it would be other sites.
They would have to look closely at whether they could strategically make it uniform and in other ways if they do not want to apply it across the board. However, she could not guarantee it would be everything, but at a minimum it would be those opportunity sites.
Mayor Anduri asked why cities have not done this, and asked what is the downside to requiring 88% of zone capacity.
Ms. Elrod said cities have done it, but what could happen is a developer might want to do a very large development of townhomes and leave half of the site undeveloped. She thinks it changes the potential product type the City gets. The City is in a position where it must meet the RHNA number, and this is one of the only places they can see being able to commit to it.
Senior Planner Renata Robles added that minimum densities were discussed early in the process among GPAC. There was determination made by the group to exclude this program since it has not been necessary to require this level of development on properties in the past because the City was getting density bonus projects. Now that the State is pushing the City to not account for those projects they are now in this position.
Mayor Anduri said as an example, if the Terraces project were coming along today he asked what would be the minimum number of units. Ms. Elrod said it would be 22 x 35 x .88 which is 677 units.
Vice Mayor Dawson asked and confirmed the City of Danville adopted the zoning changes with their Housing Element adoption in January before the deadline so they have already done the rezoning.
Vice Mayor Dawson said San Carlos is also looking to adopt minimum density at 75% and they are supposed to find out tomorrow from HCD, and she thinks this idea makes sense. She looked at their rationale which is to ensure they can achieve the minimum density for their opportunity sites.
Councilmember Candell asked and confirmed this would also apply to the FBOs. She asked if it is only for the amount of acreage they include as realistic capacity. Basically, she said they are only including 1.6 acres and will only make them do 88% of 1.6 acres or she asked if it would be the total lot size.
City Council and Creeks Committee Meeting Page 15 of 50 October 23, 2023 Ms. Elrod said they must research more, and, for the McCaulou’s site, it is 1.32 acres and 88% would apply to that site.
Councilmember Candell asked how it works if they would upzone the whole property.
Planning Director Greg Wolff explained that the necessary yield from it would be from the portion of the site which is identified as an opportunity site.
Councilmember Candell asked and confirmed with Mr. Wolff that it would then cut the acreage from the total site just for this particular criteria to achieve it for the City’s Housing Element.
Mayor Anduri asked if this is what other cities have done, stating here again, this is a larger piece of property and they have identified a portion of it as an opportunity site. If they talk about 88% of zoned capacity he asked if they are really talking about a portion of the zoned area identified as an opportunity site.
Ms. Elrod said she would defer to the City Attorney on that as she was unsure of how that works.
City Attorney Mala Subramanian said, in theory, they would have a density of “x” such as 50 unit/acre and then if they are only using a portion of the site they might have to determine the minimum density for that site which would be “x” which is the 88% of the portion of the site that they are calculating. However, staff will have to doublecheck on this.
Councilmember Candell noted this would change the overall zoning of the property which is probably not what they want. The other way to do it is to change the zoning of the site to achieve the number of units they want based on the number of acreage of a percentage of a site. Ms. Subramanian said she thinks what Councilmember Candell is saying is they do not want to have it just be 88% of the entire site.
Councilmember Candell confirmed.
Mayor Anduri said they are working now from the chart Mr. Wolff sent out on Friday that currently shows the direction the Council gave at the January meeting; that the Area 3B was to be 35 du/acre and Area 4 was also to be 35 du/acre. Ms. Elrod confirmed.
Mayor Anduri asked whether the City would be losing any opportunity sites if they zoned Area 5B from First Street east to Second Street 35 du/acre. In other words, he asked if they would meet RHNA numbers if they were to keep the existing zoning in the portion of the block that faces Mt. Diablo Boulevard between First Street and Second Street.
Ms. Robles said referencing Area 5B is the area on the east end along Mt. Diablo Boulevard. As the Council can see in the summary table, the east end actually contains a large proportion of the City’s opportunity sites. Mayor Anduri said he is not talking about the whole east end--just between First and Second Streets.
He did not think there were any opportunity sites there.
Mr. Wolff said on the map the Council will see there are 2 opportunity sites up there, but they are pipeline projects as part of the Miramar Lafayette Lane project and they have already been done at 35 du/acre.
There are no opportunity sites that have not been entitled so it would not affect the numbers on the RHNA worksheet.
City Council and Creeks Committee Meeting Page 16 of 50 October 23, 2023 Mayor Anduri said staff talked about SB 4 and the FBO sites. There were many comments about the impact on evacuation potential and other safety issues if the Council were to upzone those properties.
He can see that SB 4 as it stands is 30 du/acre and the City would be upzoning it at 35 du/acre. Other than the difference in the 30 to 35 he asked if there is any impact on public safety in rezoning as opposed to just going with SB 4.
Ms. Elrod said the difference between SB 4 and what the City would provide is that SB 4 specifically exempts them from CEQA analysis of any kind. Staff is currently working with the EIR consultants to discuss what the impacts of upzoning the FBO sites would be, and an individual project would have to go through CEQA as well. So, it is possible there are impacts but they first will have a first level of the programmatic aspect which ESA is currently undertaking and then an individual project would be subject to CEQA as well, which would not be under SB 4. This is why staff wants to try to make the City’s program more enticing than the State’s program because they want the projects to go through CEQA to ensure they deal with things like evacuation hazards and other things.
Mayor Anduri said, therefore, if they stay with SB 4 as it is there will not be review of evacuation hazards or safety impacts. Ms. Elrod said correct, none. Mayor Anduri said if the City zones it then that becomes part of what must be done, and Ms. Elrod confirmed.
Vice Mayor Dawson said if they rezone it, she asked if this would be an overlay for the FBOs. Ms. Elrod said it is not an overlay. It would be underlying zoning. There is no way to use an overlay because of the Clovis case. If the Council wants to use housing sites as opportunity sites in the Housing Element, the underlying zoning must be that.
Vice Mayor Dawson asked if they are proposing 35 du/acre versus the 30 du/acres so they can get the “bang for the buck” on the very low and low numbers. Ms. Elrod said the numbers embedded in SB 4 do not split between very low and low income. They did it this way so as to demonstrate meeting RHNA.
The SB 4 allows developers to do anything from zero to 80% of median so they could put them all towards 80%. The City has not developed a program yet but the way they are looking at it is to get more very low income units out of it.
Councilmember Kwok referred to the FBOs and said the underlying zoning would stay in place if it were to be sold to a new buyer. Ms. Elrod confirmed it runs with the land. Councilmember Kwok asked if it comes with the requirement that the new buyer would need to adhere to whatever levels of income was in place. Ms. Elrod said there would be deed restrictions on the property to begin with so this is what is for the City’s ordinance, and not SB 4. The 5% in the bill is actually for people who work for the church so it may not be above moderate. It may be all lower income individuals. The City is taking the stance that they could have 5% above moderate.
Councilmember Kwok asked and confirmed what the Council sees on the screen here would be for Lafayette. He said if the property were sold to someone else he asked if this is what the requirements would be for building up to 35 du/acre. Ms. Elrod said she would defer to the City Attorney as to whether the distribution of income for the units run with the land.
Ms. Subramanian said they would have this in the ordinance and then if someone actually developed in this capacity the City would require a deed restriction to require this for a set period of time which would run with the land. But, they would have it in the ordinance that in order to take advantage of this certain criteria would have to be met. If the property were sold that would still have to happen.
City Council and Creeks Committee Meeting Page 17 of 50 October 23, 2023 Councilmember Kwok said if they did not do that he asked if there is any underlying zoning, as it is still 35 du/acre with these restrictions. Ms. Subramanian confirmed, and said alternatively they could remain an FBO in its totality without providing affordable housing.
Councilmember Kwok referred back to the 88% minimum density requirement and said it was mentioned this is a way to address housing advocates’ comments. If they impose the 88% minimum density requirements he asked if it would be favorable in the eyes of HCD approving the City’s Housing Element.
Ms. Elrod said yes; it is because it is a level of certainty in the discussion about what the track record has been becomes moot. The arguments by certain advocates are that the City should have a different mix of developments; even in the most recent letters in the packet stated the City should include the Terraces and take out Town Center, etc. This will go back and forth between the City and HCD and it has elsewhere where HCD is taking a very strict understanding of what the average capacity has been built and what you include in that. Frankly, staff wants to get this over the finish line and not go around and around over whether this project be included. This is going to obviate those discussions which will push the City further past January 31st. They are adamant to get the City over the finish line here and this is what staff recommends to do to get them there.
Councilmember Candell said a comment on that was that half of the building in Lafayette in the 5th cycle was outside of the opportunity sites, but HCD does not look at that number. She said there were different opinions about the timeline and she would like an explanation about that.
Ms. Subramanian said she thinks what the Council saw in the schedule presumes HCD comments before the 60 days is completed. As Ms. Elrod noted, HCD has until December 26th. If staff can get them to comply and provide a letter in advance then the December meeting can take place by the PC. If HCD takes the full 60 days and they do not respond until December 26th the City will be looking for the PC to hear this in January. The Council hears the first reading of the ordinance at the end of January and adoption of the ordinance at the Council’s regular meeting in February, so it pushes it out.
Councilmember Candell said if HCD wants the City to make any changes, then there is no way to meet the January 31st deadline. Ms. Elrod said, not necessarily. HCD does not give conditional certification letters, but they do say if the City does “x, y and z”, they will certify the City. They can hope for that as well if the changes they want are minor enough that even though they may be statutorily past the deadline, they are essentially in compliance as far as HCD is concerned and presumably can forestall any builder’s remedy projects.
Councilmember Candell said if they get HCD’s return by December 26th with or without comments, it sounds like the City cannot make it. If they get HCD with comments she does not see how that changes getting through by January 31st. It sounds like the only way would be for HCD to come back early. Ms.
Elrod said she agrees but thinks HCD has taken the position that jurisdictions close to certification get a letter that states they are close and all a City needs to do is to do “x, y, and z” and a difference of two weeks does not matter. The City could argue with potential builder’s remedy projects that they have a certified Housing Element even if it is a week after the 31st. They are still figuring out these kinds of issues in Southern California, as well. This is not specific to the Bay Area. It is a state-wide problem whether a City will get a builder’s remedy application. The City could get one now but the likelihood goes up after January 31st.
City Council and Creeks Committee Meeting Page 18 of 50 October 23, 2023 Councilmember Candell said if the City has not gotten everything rezoned by then their vulnerability increases. Ms. Subramanian said yes, the City’s vulnerability increases. It is hard to say the City would be in substantial compliance with Housing Element law if they have not completed rezonings.
Councilmember Candell said she thinks this is unfortunately the City’s reality right now. While she is not saying this is right or wrong, this is what she is hearing so she thinks it is unlikely that the City will be able to make the deadline in any case, even as much as they want to. She asked if the City must also upzone the FBOs by January 31st. Ms. Elrod said yes, because they are using FBOs to meet RHNA they must complete it by January 31st.
Councilmember Candell asked and confirmed with the City Attorney this is what they have anticipated in their timeline/schedule. In AFFH, there were actions 2.3 through 2.8 and 2.3 are the FBOs and she confirmed these are in Appendix D and G. She said there were new ones in the matrix on page 98 of the PDF. Action 2.3 talks about generating a program, which needs to be changed. The Council agreed on
2.4. In 2.5, it states, “Allow conversions of existing single-family dwellings within “x” miles of the downtown” and there was a proposed map. She asked and confirmed the “x” is one-quarter mile. She remembers discussing things like it had to be in the same footprint and she is not seeing the language included.
Ms. Robles said this is an oversight and changes were made in Appendix G which were programs and not copied over to Appendix D, so she apologized and agreed to add the language.
Councilmember Candell referred to 2.6 and asked if there was a map that should be included. Ms. Elrod said staff can include and identify the map.
Councilmember Candell referred to 2.7, stating it states, “Incentivize developers to provide a range of unit sizes to provide more affordable housing.” She said she did not remember the Council talking about this.
Ms. Elrod said they originally discussed having a maximum unit size on average in developments. In discussions with HCD’s Accountability Unit, they had concerns this might run afoul of SB 330 specifically pertaining to changing downzoning results. So they said they will incentivize to provide a range of housing types rather than require a maximum average.
Councilmember Candell said this talks about “missing middle”, and she thought they were going to talk about this in large multi-family developments and ask for larger unit sizes. Ms. Elrod said they have that for large families but this is specifically to get smaller unit developments that would address missing middle concerns; that theoretically, the smaller the size of the units the more affordable they would be.
Ms. Robles agreed this was the Council’s original intention of the program but it was not to be included in the Housing Element, so 2.7 is included in Appendix D in error and has been removed.
Councilmember Candell asked about 2.8, which is also in Appendix D called, “Monitor implementation of missing middle options to determine if mid-cycle changes are needed.” She understands this is one of the comments in one of the letters they received. There are 2.5 and 2.6, and in Appendix D they are saying they are doing missing middle across Citywide, and she did not think that was their intent. If their programs or actions are within one-quarter mile of downtown and in the low density multi-family zones in downtown, then they should be monitoring these to match the City’s actions.
Ms. Robles stated staff can correct that language.
City Council and Creeks Committee Meeting Page 19 of 50 October 23, 2023 Councilmember Candell said she thinks the Council can discuss whether they want to include a mid-cycle correction. She was trying to clarify what this was which is known now, and they can discuss later if they want to implement it. Mayor Anduri agreed.
Councilmember Candell said in other FBOs in which cities have done it was not clear whether they actually upzoned those projects or if they could take advantage of SB 4. She asked if other cities also upzoned their FBOs. Ms. Elrod said some did and said she knows Orinda did. Some cities have underlying zoning that has density for churches and some do not. She would have to do a city-by-city review and figure that out.
Mr. Wolff said to his knowledge, other cities did an overlay as well before the Clovis case came out but none to his knowledge have relied solely on SB 4 to count them as opportunity sites.
Mayor Anduri said if the Council was to include DeSilva South, he asked if it is correct that the maximum acreage they can include as an opportunity site is 9.75 acres, and Ms. Elrod confirmed. The reason is that State law says that sites that are less than one-half acre or more than 10 acres are not considered suitable for affordable housing. What she has asked the State specifically is that if the site is 12 acres, whether they could include it and have the distribution according to the RHNA allocation, and the answer was “no.” They could only use their inclusionary zoning ordinance. She did not understand the rationale for this, but this is what HCD told them. Every jurisdiction has paired it down to less than 10 acres so they could use the RHNA distribution of units. This is why the City cannot go beyond that because they would lose all of the available lower income units that they want to achieve.
Mayor Anduri said if the City were to upzone 9.75 acres to 30 du/acre he asked if that would increase in dwelling units and eliminate the need to upzone the downtown. Ms. Elrod said no, not at all. She asked Mr. Wolff if staff did this analysis—that if they upzoned DeSilva South to 30 or 35 du/acre, she asked what would be required in order to not upzone the downtown. Mr. Wolff said it would be 45 or 50 units across the 9.75 acres which would potentially obviate upzoning in the downtown.
Mayor Anduri asked again and confirmed that upzoning 9.75 acres to 30 du/acre would not be able to avoid upzoning the downtown, or at least some.
Councilmember Kwok returned to FBOs and the minimum density requirement. He asked if the Council adopted the 88% minimum he asked if they have a choice between an SB 4 path and/or the City’s program.
For instance, if they are 35 du/acre meaning 45 units but only want to build 10 units for now, he asked if they can build 10 units. Ms. Elrod said under SB 4, yes, but not under the City’s program because they need those units to meet RHNA. If they invoke an 88% minimum density they would also have to comply with that. The City cannot meet RHNA without that.
Councilmember Kwok asked and confirmed a church can pick between an SB 4 and the City’s program but the City cannot count it against the RHNA allocation.
Mayor Anduri said if they upzone it the City can take credit. Ms. Elrod said this is correct.
City Council and Creeks Committee Meeting Page 20 of 50 October 23, 2023 Councilmember Kwok said if they upzone and SB 4 prevails, if a church at 35 du/acre with an 88% minimum where ordinarily they would have to build 45 units or nothing, he asked if it is permitted or not if they wanted to build 10. Ms. Elrod said no, not under the City’s program. Mr. Wolff said if they invoke SB 4 it would be permitted, granted what the City has projected for that parcel under the City’s zoning and what they are actually building. They are coming in lower than what the City projected. So, over the span of the 8 years of RHNA production it reduces the slope and so it creates effectively a deficit for the City.
Councilmember Kwok said it creates a deficit for the City but the church has the right to build a smaller number, and Mr. Wolff confirmed.
Vice Mayor Dawson said if the City is putting in moderate income housing she asked if this would assume there is a profit factor under SB 4 for non-profits because it is for very low and low income. Ms. Elrod said no; moderate housing in Lafayette is less than market rate so it is still considered lower income in Lafayette. Above moderate is a different story. The 20% is specifically through the SB 4 bill.
Councilmember Candell referred back to DeSilva South and for clarification she asked if the Council chooses to include it, she asked what delay would there be in terms of the EIR.
Ms. Subramanian said in terms of the EIR it would not put in a delay. She had their firm’s CEQA attorney review the EIR and this issue, and she said it did appear in the FEIR. It was analyzed as a less than significant impact so the City would not need a supplemental or subsequent EIR and no circulation. However, there would be delays and she would defer to staff in order to include it in terms of the Housing Element, but it would not necessarily be a CEQA delay.
Mr. Wolff concurred with the no requirement to re-circulate or prepare a subsequent EIR. He believes the City would need to amend the scope or at least the language included in the FEIR which eliminated those and articulate why now DeSilva South is back in. The site is in a very high fire severity zone, so it is that and the preparation of the resolution and ordinance, if necessary, to articulate. Therefore, it is the changes around the scope of the project and buttoning up all of those. Staff could likely do this within 2 weeks and much shorter if they were required by CEQA to do a re-circulation. But the analysis of the impacts was done in the DEIR and reflected in the FEIR.
Mayor Anduri suggested that when the Council returns from a break, it will ask for public comments and then bring the matter back for discussion by the Council. In terms of breaking down the issues, they can take them one by one, recognizing it is not all decided until everything is decided since all these things impact each other. He suggested starting with discussing what the Council will do with the FBOs— whether to upzone them or not, then discuss whether to include DeSilva South or not and if so, how they do it, then talk about the downtown and whether there is anything else the Council would like to do, such as the one block or other things the Council might want to look at in the downtown, and then discuss the 88% of zoned capacity. When these are decided, the Council can go back and ensure there is direction on all factors that lead to the number of units. They can also discuss the Housing Element and talk about the suite of AFFH programs.
BREAK
Mayor Anduri called for a break at 9:22 p.m. and thereafter reconvened the meeting at 9:33 p.m.
Mayor Anduri opened the public comment period.
City Council and Creeks Committee Meeting Page 21 of 50 October 23, 2023 LIBBY HENRY ceded her 3 minutes to Robert Lavoie.
ROBERT LAVOIE, 872 Moraga Road, said the current staff proposal for massively upzoning downtown represents the most important decision the City Council will make in its current term. An incorrect choice at this inflection point is likely to compound in 4 years with another round of mandatory upzoning if the City does not meets its aggressive housing goals. He called on the Council to carefully choose the best option for City residents and for downtown merchants and not to rush into a poor decision based on fear the builder’s remedy, which some argue the City may already be exposed to. He asked to consider DeSilva South which is the best place to add significant new housing. The Appendix in his notes he sent earlier explains all the reasons why not to upzone downtown. The current zoning downtown allows the City to meet the housing numbers they need to get because they limited the DeSilva South to 10 acres. They probably will have to do upzoning in Area 3A but with the ADUs and FBOs. Otherwise, the existing downtown zoning is sufficient. If HCD allowed the City to do the entire DeSilva property, the City could leave downtown alone and upzone DeSilva South. In reality, the City will probably have a development agreement with DeSilva in the future and will probably end up being able to develop more than 10 acres.
He said he is glad to hear that DeSilva South can be added back into the EIR. He read much of the EIR and there were no negative concerns about fire evacuation. The whole model talked about a fire at the Reservoir going east and everyone had to go east to First Street and get on the freeway. But, the residents in DeSilva South can hop right onto the freeway and be out in 5 minutes. So, he thinks the impact of DeSilva South, even though it is in a very high fire zone is, by default, legal. Therefore, he does not believe the high fire zone is an issue for the EIR. His current recommendation which has fluctuated a bit with changing rules is for 10 acres at DeSilva South. The law states anything over 10 acres is not allowed so he does not see why the City cannot go to 10 acres at 35 du/acre. He recommended downtown remaining as it is today except for Area 3A which goes to 50 du/acre. If absolutely necessary, he suggested going to 75 du/acre. If for some reason the FBOs are taken out he would say Area 5A as the next thing he would consider upzoning. He asked to keep downtown the way it is. The Council does not want to see this kind of thing in the downtown. He was recently walking around downtown Danville and it is all one and some two-stories and here, Lafayette is talking about 6 to 8 story buildings which is crazy for a town the size of Lafayette. Also, he spoke with the Fire Chief and they have 3 ladder trucks which are available; one at the Concord Airport, one in Walnut Creek, and one in Orinda on Moraga Way. Those take between 10 minutes and 40 minutes to respond, depending on traffic. He asked if the Council would want to put a 7-story building in downtown Lafayette and be the one that voted for it, and then there is a fire where someone has a problem.
The builder’s remedy has been discussed and he is somewhat under that although it has never been litigated, so there are many questions there. The point is, no one has tried to submit a 50-story building yet and so he does not think it is as big a concern as people say. Also, if the City has a builder’s remedy project it is one project and not upzoning a swath of downtown. The builder’s remedy is a risk for possibly a week to two months while the City gets the EIR straightened out. The biggest issue is getting the zoning in by January 31st. He suggested the Council state this is what they think is the best for the City and to make it happen in the plan, and then make it happen in the zoning, and get it done by January 31st. If HCD has not approved the Housing Element by then, too bad. The City can deal with this if they reject it. He said the 88% minimum is somewhat concerning considering that the whole zoned yield is such a fraud where they exclude all new projects which has used bonus density. He asked to make sure that if they do require 88% at a minimum they make sure it will not hurt development like DeSilva South or other big projects.
City Council and Creeks Committee Meeting Page 22 of 50 October 23, 2023 Councilmember Candell said in Mr. Lavoie’s calculations she asked if he was suggesting DeSilva South is 30 du/acre or 35 du/acre. Mr. Lavoie said he recommends 35 du/acre and questioned why make it less.
It is great place to hide density because there is so much land. Green spaces can be included and, architecturally it can be better managed than a compact site downtown where development is 5 feet off of the setback and they add an extra story.
DAVID CLARK said he has heard some things tonight he wanted to highlight and point out. He thinks the builder’s remedy applies to either one of the two options the Council is seriously looking at now. When the presentation started, the implication was that builder’s remedy did not or might not apply to the situation to develop downtown. They have heard it is unlikely it will meet the January 31st deadline in any event, so he thinks the builder’s remedy already applies now. The impact may increase after January 31st whether they go with staff’s recommendation or something Mr. Lavoie just described. He likes Mr.
Lavoie’s explanations and likes using DeSilva South for a number of reasons. First, it is not as congested.
The City has sort of been forced into the situation where all development to occur must occur downtown.
BART is gone and the City no longer has the options it used to have. DeSilva South is a nice option and he thinks allowing downtown to stay at a relatively low density is a real plus for not just steady purposes but for others. If downtown is 100% upzoned along the lines being discussed he thinks it increases value and it will increase the incentive to completely build out all parcels. So, it is almost the opposite of a death spiral. It is a growth spiral because they will wind up with all big buildings the City would prefer not to have because there will be incentives to build each one out.
The other thing is he thinks it will drive businesses out of the downtown area where the City winds up with absence of any businesses. So, there are economic reasons in addition to the aesthetic he believes that dictates not developing downtown and not putting 100% development downtown which makes DeSilva South a nice option. He thinks the builder’s remedy applies equally to the DeSilva South option as well as to the extant option heard tonight. So, they have the same risk in both places. Given the same risk in both places, he questioned why pick the worst of the two options for development. Another thing heard tonight is that the change to the EIR which is a requirement for DeSilva South probably can get done in two weeks, so he questioned which would take longer.
STELLA WOTHERSPOON said what she is hearing is that the City should preserve downtown heights on the backs of FBO neighborhoods. She wants to make it clear for all in the room and on-line that upzoning FBOs means allowing 6-story buildings in Burton Valley, in Condit, in Hamlin, and Acalanes Ridge. SB 4 is not the same as the City’s proposal. The upzoning plan goes beyond SB 4 and its density and its transferability, and City upzoning will be permanent. The City upzoning plan also cannot ensure that projects go through CEQA review because SB 4 is still in effect. So, City upzoning is no guarantee that fire evacuation concerns will be addressed. Regarding opportunity sites, she asked the Council to please follow the HCD site inventory guidelines which say, “When determining which sites are best suited to accommodate the RHNA for lower income households the jurisdiction should consider factors such as proximity to transit, to high performing schools and jobs, to amenities such as parks and services, to health care facilities, and to grocery stores. The only FBOs that satisfy those are Our Savior’s Lutheran, Temple Isaiah, and United Methodist because they are all near all of these amenities. DeSilva South also checks these boxes and fulfills the AFFH mandate. So, she is very concerned that placing high density buildings in neighborhoods with narrow, two-lane roads will exacerbate fire evacuation conditions.
City Council and Creeks Committee Meeting Page 23 of 50 October 23, 2023 During the 2019 Tennis Club fire, people were stuck crawling in long queues, and adding up to 250 housing units in outer neighborhoods will make atrocious evacuation conditions worse. If the Council rejects DeSilva for being in a high fire hazard severity zone, the Council should also reject high density buildings in neighborhoods where roads do not support efficient massive evacuations. She asked to reject Sun Valley Bible, Living Hope, St. Anselms, and St. Perpetua.
The City needs DeSilva South for the units, and she believes the fire risk is actually lower at DeSilva than at the remote churches for all the reasons others have mentioned. It fronts a 4-lane arterial, is one-minute away from low volume highway ramps, buildings can be designed with modern mitigation measures and landscape can be Firewise. So to her, if the fire risk is the deciding factor, DeSilva South is the better choice. There is space to implement the recommended mitigations in the AG Bonta guidelines and the City cannot really mitigate the risk in old established neighborhoods with old wood houses covered in dense vegetation. In her spreadsheet, there is a 21% lower income buffer and 1,849 units which uses the Council-approved Area 1 through 13 densities that were in the packet with DeSilva South and only Temple Isaiah, United Methodist and Our Savior’s Lutheran as opportunity sites at 35 du/acre.
Regarding the EIR, she agrees with what everyone said—if you are already analyzing FBOs and the Council can add DeSilva South and re-circulation is not necessary, even if the EIR analysis is completed shortly after January 31, 2024 the City will only be exposed for a limited time, and she thinks the trade-off is worth it. She thanked the Council for its consideration and for all efforts in drafting the Housing Element.
Councilmember Candell said it looks like Ms. Wotherspoon did not change any of the downtown zoning, but just added DeSilva South and reduced the number of FBO’s. Ms. Wotherspoon confirmed and said she left Areas 1 through 13 as staff had them in the report, but that can be changed.
BILL BUCHER, Lafayette Homeowners Council, said with the idea of saving time he concurs with the three previous speakers. They would like to see the DeSilva South property included in the calculation. He wanted to bring up for consideration the idea of a minimum. He would like to keep the downtown at what it currently is or possibly goes up to 45, 50 or 60 du/acre because if the City is now going to do the minimum, it gets to a developer. They want to build a project that is economically feasible and, just like the Terraces project, he always knew that was zoned for 720 units and they picked 315 units. They did that because they must rent them. So, when something is 75 units and now there must be a minimum of 85% of that max, it may not be a feasible project and the City may get nothing developed or something atrocious. So, he would like to bring this issue up particularly since they will get density bonuses anyway and they will increase in size.
The issue on the table that was taken off was about when a development happens, having more units in the development than larger units. He actually supports that same concept. If they want smaller units to meet their affordability goals, he asked to have the number of units be smaller. He thinks that had been removed as one of the items, but they think that is a good idea.
City Council and Creeks Committee Meeting Page 24 of 50 October 23, 2023 ANDI BROWN said she is here to express her support for the revised Housing Element. She thinks it is an example of thoughtful compromise and it represents years of input from numerous stakeholders. It balances those differing viewpoints and needs. It builds upon what is realistic, practical, is the best use of both new and existing State laws to meet the extremely high RHNA threshold, and it creates new AFFH opportunities. She thanked staff and the City Council for the years they have devoted to this extremely difficult process. In terms of the new programs announced tonight for a minimum density, she thinks that makes sense to meet the yield numbers. She has a slightly different take on builder’s remedy, did not hear things exactly the same as others tonight, and still thinks it is very real. If someone is living near the property where the one building occurs as someone brought up, she thinks they would feel differently if they are a property owner right around that one spot that has a builder’s remedy building take place. So, this is something to take very seriously.
She had thoughts on discussion of the Portland’s infill project, which was in the staff report. She commented that she does not think Lafayette needs to further examine that at the moment. The revised Housing Element already provides explicit methods to increase missing middle housing opportunities and the City just needs to give those programs and policies time to take effect.
Councilmember Candell asked if Ms. Brown supports the current staff recommendation with the downtown-only plan or asked if she supports the plan that was discussed adding back in DeSilva South.
Ms. Brown said she supports what staff presented.
COLIN ELLIOTT said he is sorry he cannot be present at the meeting, but he has always been in favor of DeSilva South, and still is. Mr. Lavoie has put in his numbers and he thinks he may have only 3 of the FBOs in his numbers. Staff may need to look at that, but if the City can put DeSilva South back, it does not sound like the EIR is an issue after all and not doing all the upzoning of the downtown. On the question of yield, it is frustrating. He would say of cities he has seen he thinks the cities are playing games with those yields.
When you hear about other cities being low, he knows on some he has looked at they will be looking at a large shopping center of maybe 5 acres. They agree to put 50 units on with the owner which is what Lafayette is doing but only taking one acre. But then they back into that and say that means the yield is way low on that site. So, there are games being played with that and this is one thing the Council can look at. If they are only putting so many units on the Plaza Shopping Center then over that whole area that is actually a very low yield.
He also would like to look at the AFFH in Appendix D and G, and 2.5 is where they all talked about before.
These are the properties within one-quarter mile and being able to do 4 units. He would ask not to include anything north of Hwy 24 and anything in a high fire hazard severity zone. He does not see why the City should include that because it is putting more people in harm’s way. Finally, he would ask to look at the mix. Many cities particularly in this location are saying they actually need more 2- and 3-bedroom units for families. Developers love to build studios and 1-bedroom units. There are many cities saying you have got to be at least 20% 2- and 3-bedroom units. He would urge the Council to look at the sites and when looking at the yield, particularly if going to a minimum 88%, they could do it more by units. You can say on that parcel you shall not build less than 50 units and just leave it at that. So, you get to the same effect.
They can say they have an 88% minimum but you are really just saying you shall not build this number of units and do it that way.
City Council and Creeks Committee Meeting Page 25 of 50 October 23, 2023 JANINE CROWE said she would like to speak in favor of the DeSilva property. Her concern are high rises anywhere where the current Fire Department stations in Lafayette can handle high rises. She does not think it is equitable to ask lower income people to live in high rises in upper floors that cannot be reached by fire engines. It is also not fair to the firefighters who may try to climb up to get people out and not have any cover from fire trucks on the ground. The City cannot rely on Walnut Creek, Orinda, or Concord and must rely on themselves in an emergency. She is against having high rises the City’s own fire stations cannot reach. The City should also have its own ladder trucks, and asked to build a new station that can house a large ladder truck. She asked to keep any new buildings within their current reach of the City’s current fire engines. It seems like using the DeSilva South property is a way to do that so high rises do not have to be built in downtown Lafayette.
She also agrees with the speaker about the churches. There are churches like Perpetua Catholic Church for example. If they had high rises there it would be very hard to evacuate without having an influx of a huge amount of new residents trying to get out in an emergency. Therefore, not all churches are in the right place to do a lot of building.
MEGAN CONNER said she is currently a law student and grew up in the Lafayette area, attending Lafayette schools from kindergarten through high school. She really loves this community and has high hopes for how it can grow in the future under a new Housing Element. However, it is her opinion that the City should take the builder’s remedy more seriously and put forth a more practical draft Housing Element. She is also concerned over the talk of increasing the real estate capacity earlier tonight. The real estate capacity proposed in this draft already appears too ambitious, giving historical precedence that appear closer to 70% to 75% instead of 88%. Ultimately, it feels like the current draft Housing Element is trying to stretch the truth on real estate capacity and it is misleading for actual development prospects which bodes poorly for Lafayette’s chances of getting this Housing Element approved by January 31st to secure bike lane funding.
She believes implementing more opportunities for missing middle housing downtown will help resolve some of the issues the City is facing. This is a more practical way of building out affordable housing density in the City and, if the City wants to meet the goals it is setting in this Housing Element and wants to avoid legal concerns, it should more seriously consider missing middle opportunities.
CHRISTIAN ISRALIAN said he also goes to UC Berkeley Law School and thanked the Council for having a very diligent process. He appreciates how Councilmembers are taking notes after each speaker. Not many Councils do that and this is something he admires. He referred to FBOs added to the opportunity sites inventory and just because Clovis has added those sites does not necessarily mean that HCD will approve those. A previous speaker mentioned that HCD has criteria for how they approve these inventory sites and there was a list of cities staff pointed to. He wondered if those cities have a similar track record of development at those FBOs organizations and whether it justifies adding those FBOs to the RHNA numbers, and also because SB 4 was signed just this month. He reiterated that 88% is unrealistic from the previous numbers the Council has put out and thinks this would be a little suspicious for HCD.
He referred to the builder’s remedy and said SD-423 is real. Many speakers have said this has not been litigated, but it has been litigated in Santa Monica and that City settled with the developer who was using builder’s remedy. This is real and it is coming from many cities that do not have their Housing Element approved, and he strongly encouraged the Council to get this into HCD by January 1, 2024. It is sad to see this process has come to a last minute decision on the Council’s part, but this is what the Council must do.
City Council and Creeks Committee Meeting Page 26 of 50 October 23, 2023 MICHAEL GRIFFITHS said so many good things have been said this evening. He knows it has been very busy for the Council to absorb everything, but he say that he thinks Orinda included a church in their Housing Element which was certified by HCD in 4 days, so he would add that to the comment about Clovis. Also, in talking with Mr. Lavoie, he indicated typically in this FBO situation, the standard is a neighborhood fight for one or two stories, so we are not looking at 6- or 8-story buildings. It is important to note that the Chamber of Commerce repeated their position supporting DeSilva South and also GPAC which was appointed by the Council to research this topic. They also supported DeSilva South which is something he thinks the majority of residents also want to take advantage of because it will allow the City to retain the current 35 du/acre. It has the charm and appeal for people who want to buy things, products, and services on Mt. Diablo Boulevard which would not otherwise exist if a developer builds 8-story residential buildings with little charm and a canyon effect.
Regarding the DeSilva South he thinks it would offer a healthier, safer environment for residents and can potentially set up the opportunity for much needed play fields. It would also slow down the loss of businesses and jobs where recently 700 jobs have departed from Lafayette and this will only continue.
So, it is important to support the Chamber of Commerce and local businesses. As a point of reference, the staff proposal runs counter to the City’s mission statement which is all about small town ambience and charm. Eight stories on Mt. Diablo would not be small town or ambience or charm, so it is important to leverage the opportunities to spread this quota around. He asked to spread it around to DeSilva South, the FBOs, and so on which would be very valuable and, if need be, Areas 3A and 5A as Mr. Lavoie pointed out.
MAX HENNENGER referred to the builder’s remedy and said he thinks the Council should think about it less as a binary thing and more about the time they are past the builder’s remedy. The more days they are past it the more likely it is that the City will get a proposal. They might be past the deadline no matter what. He thinks it matters if it is one week versus two months or more. Regarding timing, he thinks the loss of the MTC grant for the pedestrian and bicycle safety improvements by the middle school is a big deal. It would be a real policy failure if the City ends up losing that money and having less resources to improve bike safety downtown and by the schools. So, he hopes the Council can take that into consideration in terms of the risk of not having a Housing Element less likely to be approved by HCD.
Regarding downtown versus DeSilva South, the households that are going to be living in more dense buildings downtown are more likely to be zero car households or one-car households versus a two or three-car household. If living out at DeSilva South, it would be great if those residents could bike to BART or biking into the downtown but, realistically, given bike safety on Mt. Diablo it likely would occur versus people living right in the downtown corridor. He also said in the letter Inclusive Lafayette sent over, they proposed a backstop policy where if Lafayette is unable to hit its low income housing targets mid-cycle, they would automatically upzone downtown. He thinks this is worth considering.
Finally, while discussion of the missing middle housing policy in Portland, Oregon was in the staff report, he does not think the Council has discussed that tonight and thinks he would be interested in hearing the Council’s thoughts on proposing a missing middle policy specifically with a bonus for low income units.
City Council and Creeks Committee Meeting Page 27 of 50 October 23, 2023 CHERYL MACDONALD said she wanted to agree with many speakers that have talked about DeSilva South and she is in support of including this. She thinks it is a good idea to take a little weight off and keep building heights low in the downtown. She is worried about what would happen in 4 years if the City needs to upzone. She would rather start at 35 du/acre than 50 or 75 du/acre and then go from there.
Many residents have been talking about fire safety and accessibility of fire engines through the Boulevard.
A few years ago when Chief McAllister came to talk to the Council he said the City needed at least one acre for a ladder truck. There are not very many parcels that big. Someone else talked about not depending on Concord, Orinda, or Walnut Creek for ladder trucks, and she also heard that it would take 8 to 10 years to build a station that would house a ladder truck. If many high rises are developed, the City will not have the ladder trucks or possibly the land to house the ladder truck. So, she asked that this also be considered in fire safety and accessibility to protect people on the top floors of these structures.
In summary, she voiced support for DeSilva South and keeping density low in the downtown all the way through to the east end. Regarding housing by right, it is already in place on the east and west and now in the core. So, developers do not have to replace any businesses. This is the concern she has and she voiced the need to protect commerce if it means keeping density low.
CHRIS said he would ask the Council to ask the consultant and City Attorney whether other cities that have used FBOs as opportunity sites have instituted specific ordinances to limit development to 95% below market rate housing. Restricting development 95% affordable makes development much more difficult than development at market rate. He questioned what the City’s response will be if HCD comes back and says everything looks great except this deed-restricted affordability requirement on the FBO sites. If the affordability requirement is dropped and the City makes these opportunity sites just like the rest of the City’s opportunity sites, the City will be golden. He asked if the City will let 6- to 8- story developments into all residential neighborhoods because they are squeezed up against a deadline. He has looked at many other Housing Elements and none of them, including Orinda’s, have mandated affordability requirements with their FBO upzoning.
Another thing he would like to be discussed is the belief that if the City upzones FBOs to 35 du/acre and institutes an 88% yield requirement, a church can come in and say they just want to build 5 units for their pastor and other staff. If a church owned 1 acre downtown and was zoned to 50 du/acre with an 88% yield requirement, somehow SB 4 will then build 2 units, and he does not think this is how zoning and yield requirements work. He thinks FBOs would be required just like everyone else to build to that yield density. SB 4 is not magic that lets them do whatever they want.
Finally, he also supports DeSilva South. He is against FBOs. He thinks density in downtown makes sense.
People worried about business opportunities in downtown and he suggested looking at large cities like Walnut Creek, New York City, noting that density breeds business. Business depends on people and more people means more business.
BRIAN GREEN said he supports limited FBO rezoning if those FBOs are near the downtown corridor. As other callers have said, he does not support rezoning in other places that are more in residential areas.
He also supports the DeSilva South alternative discussed and thinks the City should maximize that to the extent it can. As much as he does not like it he would rather see upzoning in downtown than in residential areas. If that means more density downtown he thinks it helps preserve semi-rural feelings in the community that people like so much and he thinks this should be defended.
City Council and Creeks Committee Meeting Page 28 of 50 October 23, 2023 He also does not think that the Council should let the January 31st deadline be rushed to a less than ideal solution. He knows it has been a long road, but in looking the risk of builder’s remedy, in his mind he believes that is a limited risk for going over that deadline a few weeks if that is what it takes to put the plan in place they really think is the best plan. Finally, if the Council is going to rezone all the FBOs he thinks they should limit it to the density required by SB 4. He did not think there was any reason to go beyond that. The more they could minimize that, the better in some of those communities.
OLA PELEKY said she would like to reiterate the high risk of upzoning FBOs allocated from the freeway.
Just thinking of evacuations during a fire will be a nightmare. She also added she is in favor of using the DeSilva South parcel and agrees with comments everyone has said to maximize this opportunity.
JEREMY LEVINE thanked the Council, Diana Elrod, and Renata Robles for an excellent presentation which gave a compelling justification for the inclusion of FBOs in the inventory. From the start of the Housing Element process, Inclusive Lafayette’s goal has been to help the City create a realistic plan for new homes that unambiguously complies with State law. They sent a letter earlier today to help suggest further improvements, but he is here today to talk about a specific proposal that he overlooked in the staff report of minimum density. He actually thinks there is a decent chance that the minimum density strategy would work in the sense it would help the City get to a number on a page in the Housing Element. However, he is worried that a minimum density would have unintended side effects.
Lafayette needs businesses in their downtown and a minimum density actively discourages commercial development. We want more mixed use development which really could be more difficult to get with rigid guidelines. The City is talking about having business-friendly downtown that is not just a wall of residential.
The City has to actually allow that if they want it. Fortunately, a minimum density is not the only way the City came demonstrate the necessary capacity to meets its RHNA. The City can rezone. The two feasible options of rezoning for the Council would be to pursue further rezonings in the downtown than what is currently proposed, or to pursue additional rezoning on DeSilva South. He does not think it is an either/or option. If the Council is pursuing some rezoning downtown it could do this and it can pursue more rezoning at DeSilva South.
Whatever the Council does, the City’s Housing Element will more likely be approved if they include this backstop policy that Max Hennenger mentioned and which he described in their letter. Everyone is saying to try things out, but this is fine if the City wants to try the zoning out and see how it works and add a policy in the Housing Element at the mid-cycle review that will make sure the City analyzes whether or not it is on track to meet its RHNA and has a backup plan if it needs to do more. He appreciates the Council’s discussion and questions tonight and is looking forward to the rest, and he thanked the Council for their consideration.
LAUREN HERPICH, 3382 Moraga Boulevard, said in reviewing all public comments she wanted to make note of two, in particular—that of Robert Lavoie, someone who has worked tirelessly to create wellthought through alternative plans, and that of David Clark, who clearly demonstrated that this is a consistent series of choices between the lesser of two evils. No housing plan the Council approves is going to be perfect, but they need to decide on a plan that works best for Lafayette and its mission statement- - A mission statement each Councilmember voted for in favor of last year. She admitted that the term “semi-rural” has always given her pause, but the Council voted on it and so it needs to be honored. That said any plan that does not include DeSilva South as a way to help keep the small town charm while also meeting their housing goal is a mistake. It is a mistake for this cycle and the next.
City Council and Creeks Committee Meeting Page 29 of 50 October 23, 2023 From tonight’s discussion it does not sound from staff that adding it back in will cause any high end delay.
Plus, it actually may help give the town another amenity it has been asking for—a sports field. This will never happen unless it is part of a more comprehensive plan such as housing. Downtown is already zoned for multi-unit housing. We can have the vibrant downtown that has been made a priority by this Council at its current rate. Bigger does not always mean better.
As for the FBOs, like Ms. Wotherspoon, she has her own personal objection against further upzoning more than what SB 4 requires. Again, the State has mandated a series of bad choices and if the City has to, she would like to keep it to those near downtown despite our inadequate infrastructure. Lastly, based on comments, she has heard talk of this ideal vision about downtown. It is not realistic to think that people who live in high density downtown will not have cars. Families will have cars. Teachers at Burton Valley will need cars to get to school. Any trades professional will need a car to get to their clients. If anything, focusing on DeSilva South, they are actually moving their evacuation routes across more of their highway entrances. The First Street/Deer Hill entrances are the main evacuation points for already existing downtown, trails, St. Mary’s corridor, Burton Valley, and Moraga residents. She does not think it would be smart to add more people here. Lastly, she thinks it is safe to say Lafayette is not Portland. A population of 25,000 people is a lot different than one of 2 million people.
LYNN MACMICHAEL thanked Diana Elrod, Greg Wolff, Renata Robles, and Mala Subramanian for the seemingly impossible task of meeting all demands by the State and residents here, and continuing to push on. She is hopeful that development on FBO and higher educational lands can be one solution to affordable housing here. She thinks the Council needs to encourage those organizations to approach staff with interest in that housing. She will come down to the City offices and get its recommendations on how they can approach those organizations, and she hopes that would be a help. As everyone sits here and the crisis of inequity in housing grows here and nationwide, she would like to see many more sites made available for multi-family housing units throughout the town. Staff shared photos with residents a beautiful multi-family housing units and it would be a credit to our neighborhoods including hers. She has seen houses here in her neighborhood that are the size of hotels and many of them not inhabited but half the year. Affordable housing must be provided to the many who need it, and Lafayette can be a great example for all other towns in the county if the Council does so.
Mayor Anduri thanked speakers and asked how the Council felt about discussing issues he set out before the break, and asked for any follow-up questions, as well.
Councilmember Candell said one question is whether they can add a height maximum to the FBOs, or she asked if there are any limits on SB 4. Ms. Elrod deferred to the City Attorney about SB 4, and she assumes they would have height maximums at 35 du/acre.
Ms. Subramanian said she did not think SB 4 has any reference to height maximums or minimums.
Councilmember Candell asked if it has to be the same height plus one story which is what one speaker said. Ms. Subramanian said she can double check that.
Vice Mayor Dawson said she recalled it is one story above the maximum height, so there is a height limit.
Councilmember Candell asked if this could be implemented in Lafayette’s, or she asked if the 35 du/acre has the same as the downtown. Ms. Subramanian said this can be implemented. She thinks they just need to be doing it as part of their upzoning process to comply with SB 330.
City Council and Creeks Committee Meeting Page 30 of 50 October 23, 2023 Councilmember Candell referred to the 88% yield and asked if it will reduce the City’s chance of getting mixed use projects downtown. Mr. Wolff said he did not believe necessarily that it would. He can go back and see what the ultimate residential density was because the City has had projects that are mixed use but they have included residential at ground level towards the street and behind and above. So, he does not think in and of itself it would. The City has worked and will continue to work towards having a vital street elevation and dynamic sidewalk. Largely, it is a function of what the builder and developer want to do. His experience is they generally want to do the right thing and make a project that pencils. So, he does not believe the 88% would diminish the likelihood of ground-floor commercial.
Councilmember Candell asked what other cities have done a forced mid-cycle review that is proposed for their AFFH. Ms. Elrod said they are being asked all over the Bay Area jurisdictions to have a forced midcycle review for missing middle, for ADUs, and other things.
Councilmember Candell asked if they have imposed the forced direction of a change to respond to whatever deficiency they have or will they do a review. Ms. Elrod replied that if deficiencies are found, for some jurisdictions HCD has said you must rezone, find new sites, or some other language to fix it.
Councilmember Gerringer asked if there were any other cities that staff knows of that have this backstop, where the City knows it will have a mid-cycle and meet HCD halfway by saying if they do not do “x” they will do something else. Ms. Elrod said she wanted to clarify something about what the backstop that the advocates are requesting. From what she understands, if the City is not producing housing for lower income then the City is going to do “x, y and z” and get a rezone. That is not the purpose of the RHNA allocation and that is not directly what the cities are responsible for. The City is responsible for planning for housing and making concerted efforts to make sure if can be developed. The City submits quantified objections as part of their Housing Element, saying what they think will actually be built. So the backstop action staff would look at would be something like they are not getting any middle income units, not that they are not producing to meet RHNA.
Ms. Elrod clarified that producing to meet RHNA is a separate question from all these other things. There are mid-cycle reviews for things like ADUs. If the City does not meet its projections, then they need to either adjust its projections or figure out new incentives. But, that is not the same as not meeting their very low and low income units halfway through, and therefore, we have to rezone. That is not what is required.
Mayor Anduri said several people have addressed the builder’s remedy and he wants to make sure it is clear in everybody’s mind. If they take two alternatives—one of them being the proposal in front of them.
What he understands is that if they get an HCD response at the beginning of December, then they can meet the January 31st deadline, and he asked if this is correct.
Mr. Wolff said yes, this is feasible. He qualified that the HCD response, if positive on the Housing Element, or if it says they are certified, or there are still additional changes, and if they make them bulleted, discreet, understandable actions, that this is feasible. If it is obtuse and lengthy, then it is not achievable.
Mayor Anduri said then the alternative is if the Council includes the DeSilva South property and as he understands it, the City is okay on the EIR but it would take an additional 2 weeks for staff to get the submission ready to turn in. So, they would not submit on October 26th, but more like November 11th.
City Council and Creeks Committee Meeting Page 31 of 50 October 23, 2023 Ms. Elrod said they just checked and she confirmed DeSilva South was never analyzed as part of the AFFH of sites. They have had two iterations—one that did not include FBOs and one that does include FBOs.
They have never had an analysis of the DeSilva South site as to whether or not it meets AFFH concerns and they would have to go back to that consultant to have them redo that analysis. They would also have to go back and rewrite sections of the Housing Element that talk about the sites analysis so there is a lot more than just getting the EIR information back. They would be put out further than those two weeks.
Mayor Anduri said if the earliest they could submit would have been November 9th; 14 days after October 26th but now staff is saying no, there would be more time needing to be spent. Ms. Elrod said it is possible it could happen but what the Council is asking for is for staff to do many revisions to the Housing Element.
They would have to rewrite the section on inventory and methodology and see if Root Policy is available to do this analysis. She is just letting the Council know there are many moving parts here aside from just the EIR.
Mayor Anduri said he understands but he asked and confirmed that this needs to be done before they submit. Therefore, he is looking for a rough estimate of how long it would take, again assuming if they move forward with what is before them, to submit on October 26th. If they include the DeSilva South property, he asked what is staff’s best estimate of when they would be able to submit to HCD.
Ms. Elrod said they would probably be one week beyond November 9th in order to get everything put together if the Council decides to include DeSilva South and the Council wants staff to take out certain sites. They may come up short with sites and not have what they think they have, there is not a level of certainty. However, there is a level of certainty with what is before the Council right now. If they start changing that, they must go back and make sure it will really work if the Council wants to take out FBO sites, etc., etc., so there may be a requirement they come back with further changes to the Council. All of these parts will push them beyond where they can get adoption taking place.
Councilmember Candell asked if they must redo their AFFH if they include DeSilva South. Ms. Elrod said yes, because it is an opportunity site and the analysis has to discuss how many people of various incomes are in the neighborhood, how would this impact that area, whether it would skew the distribution, and would it increase concentrations of lower income households because there are lower income households in Lafayette. They must have that analysis done.
Mayor Anduri said one of the speakers asked if other cities that have used FBOs had affordability requirements in their zoning. Ms. Elrod said she has no idea and would have to look into that. Many jurisdictions have land use designations for institutions that do not come with residential densities associated with them so they would have to upzone them, and staff does not have that level of detail in front of them. They could obtain that for the Council which will take time and again, all these things are adding up to a pile of getting to the end goal.
Mayor Anduri suggested starting by discussing FBOs, then DeSilva South, then downtown, then the 88% zone capacity issue, and then go through chapter by chapter during which they would pick up the AFFH suite of programs.
Starting with FBOs, the proposal before the Council is to upzone to 35 du/acre and prescribe in the zoning levels of affordability.
City Council and Creeks Committee Meeting Page 32 of 50 October 23, 2023 Councilmember Gerringer said one of the suggestions/alternatives was to only include the three and the other churches, including the one with the creek going through it could opt to do an SB 4 project and then they have 5 units less, but also not having to do CEQA to address the public safety and those concerns. It seems that by applying ours to all of them, at least they require CEQA and can apply the height requirements already in SB 4. She appreciates keeping them near services, but she is also currently grappling between making those exceptions for the others and only applying it to the three FBOs. She saw a head shaking about the height requirements and thought the same thing in SB 4 would apply, or the City can put it into the City’s.
Ms. Subramanian said Vice Mayor Dawson is correct. There is a provision in SB 4 that says, for development projects located in a zone that allows for residential uses, the height would be a height of one-story above the maximum height otherwise applicable to the parcel.
Councilmember Gerringer summarized she is leaning towards not picking and choosing the FBOs in order to have the City’s requirements match SB 4 except for the 30 du/acre versus the 35 du/acre.
Vice Mayor Dawson said she asked this question earlier. In Appendix D where they have AFH Action 2.3, at the time they thought they would develop a housing overlay for FBOs, so she asked what has changed in that approach. Ms. Elrod said this was a discussion at their last meeting where the City Attorney explained that because of the Clovis decision, if a City is relying on an FBO to accommodate its RHNA allocation the underlying zoning has to be in place. There is no underlying zoning of density on the FBOs and, therefore, the City would have to rezone in order to count them towards the inventory.
Ms. Subramanian added that they cannot just have another residential zone in order to count it for the opportunity site so they could not keep the single family zone with an overlay. There could be another non-residential zone so they could have the commercial or, in this case, a faith-based zone with an overlay of the residential. But, you cannot have an overlay residential on top of a lower density residential if you are using it for an opportunity site.
Councilmember Kwok said he is in favor of the FBOs. He heard concerns from the community, but in adding onto Councilmember Gerringer, he would like to give the opportunity to all FBOs to develop low income housing if they so choose. He thinks congregations have a special ability to raise funding in creative ways that private entities and others do not, and some may choose to develop and others may choose not to, but he thinks offering it to all of them equitably seems like a right approach. He is concerned about what happens if the property were to be sold and what happens to the person that acquires it. But, after hearing there would be deed restrictions that the acquirer could continue to run a FBO or be subject to the 35 du/acre and have to build low income housing according to the same requirements. As long as they step into the shoes with the same conditions, he feels comfortable with that approach. Nothing is perfect, but he favors that approach of offering it equitably to all and not just earmarking a few.
Mayor Anduri clarified that Councilmember Kwok was referring to the FBOs listed.
City Council and Creeks Committee Meeting Page 33 of 50 October 23, 2023 Councilmember Candell said she agrees with that for different reasons. She honestly believes that these FBOs have a unique capability. The projects she has seen done by these institutions have been a combination of all resources to go along with these communities. They are not big, and she does not imagine any of them needing residents to come to their congregation in their neighborhoods. She does not think they are going to be building massive developments but rather delightful low income units that will serve people not otherwise served. Hopefully, they will choose the City’s and go with the CEQA, but she does not think they will be massive projects on these facilities that will cause the kinds of problems they are and should be so afraid of. She has to have faith they will be good neighbors on this, keep their congregations and neighborhoods happy, and develop some much needed housing in places they would not get otherwise.
Vice Mayor Dawson clarified that if they upzone that to a minimum density she asked and confirmed with Ms. Elrod that it would apply at this time, as well. Vice Mayor Dawson said she supports the FBOs for all of the reasons Councilmember Candell stated. She thinks it is a unique opportunity. It is what the State advocated for, and she voiced support of equity of all FBOs and educational institutions having that opportunity to pursue or not.
Mayor Anduri said he agrees with his colleagues.
The DeSilva South property:
Vice Mayor Dawson said the Council is hearing from the community overwhelmingly that this site is an opportunity they would like the City to take advantage of. She would prefer that as opposed to the numbers of upzoning downtown and thinks the numbers are very high. She has studied other cities on the peninsula where she used to live and has seen what is going on there. Their numbers actually were lower and they still have some pretty high buildings. She is concerned particularly with the 75 unit numbers in downtown. She sees DeSilva South as an opportunity to at least bring down some of those numbers in the core.
Councilmember Candell said she also agrees with Vice Mayor Dawson. She wished they would have done this earlier of course, and doing it now is risky. In terms of whether it is very risk in terms of what the City is facing anyway, if the City does not upzone everything by January 31st, on February 1st if developers are ready and want to do it they will submit. She did not think 1 to 3 days is any different than 2 to 3 weeks to her the way she has seen these things come in other cities. She agrees with Vice Mayor Dawson that the 75 units is really high and they are rezoning the entire area and not just the opportunity sites. In the 5 th cycle, almost half of the units came from outside of opportunity sites so Lafayette may be looking at very big buildings and not just the pieces they have identified. If they go in big now and do not achieve their goals she wondered where they would go. This leaves an exit valve in case the City is forced to do something else later.
She does believe a development agreement would be an opportunity at DeSilva South that is unique, and if they can make that happen there are many people with interest in getting something that possibly does not conform to exactly how they are going to zone it but maybe they will come in with something delightful so she is in favor of including DeSilva South.
Mayor Anduri said when they are talking about including DeSilva South, it is 9.75 acres or under 10 acres at 30 du/acre or 35 du/acre, and Vice Mayor Dawson said she would say 9.75 acres and would want to include the affordability factors, and Councilmember Candell agreed.
City Council and Creeks Committee Meeting Page 34 of 50 October 23, 2023 Councilmember Gerringer said when putting in DeSilva South at 9.75 acres, she asked what zoning they were talking about.
Councilmember Candell said 30 or 35 du/acre and suggested figuring out how numbers play out. She knows it does not quite get there but the options Robert Lavoie mentioned. So, everything would go back to 35 du/acre but Area 3A would go to 50 du/acre.
Mayor Anduri said they would have to ask the Planning Director about that, but he suggested figuring out what they get from the FBOs, figure out what they get from DeSilva South, and then work backwards.
Councilmember Candell agreed there will be some rezoning downtown but it will not be anywhere near what is before them today.
Councilmember Kwok said he will offer a different viewpoint. He said DeSilva South has some pros and cons. It is something he has thought about for months and months. It has been on the table but it has not been on the table. Starting with the pros, it is a large property and is the largest the City could develop so they could be very thoughtful aside from the BART spots about what to do with that. It is a great opportunity.
Another advantage is the owner is interested in development so the likelihood that housing would be built within this next cycle is high on a large property, so it could be a high probability. It is near a freeway entrance which is a good sign, and since it is a large property it has the opportunity to provide parks and open spaces and other amenities that a downtown development does not offer. So, definitely there are things he likes about that property.
That said, some of the cons he would list are that it is not walkable to downtown or walkable to any schools. Therefore, if you put 400 units there this is 2-vehicle household or 800 cars. So, everybody will have to come downtown, drive to school, and it will be several hundred more vehicles crossing the City’s streets for everybody that has to do their errands and go to school as compared to putting housing downtown so people can walk to their stores, walk to the 2 schools downtown, and walk to shopping.
Some will have to drive a car for some reasons but they will really reduce the VMT in downtown density.
From a lower income point of view, those of lower income would need to get a vehicle if they are living in DeSilva South whereas they may not need a vehicle or fewer vehicles downtown. In his mind, one is more walkable versus one less walkable.
He is committed to closure of this process. It has been a long journey and they are at the finish line. They have a deadline to work with and he does not feel good with having such a large thing come to the Council at the 11th hour from a process point of view. He thinks they have already moved beyond that. So, he believes where they have gotten in putting the density closer to the downtown, this has not made everybody happy, but this is where they are and they are being asked to close this out. He would suggest to be disciplined in what has gotten them to this point and to finish what they need to do. DeSilva South can always be a project in the future but he thinks they should put their investments in the downtown core and invest in a vibrant downtown that is more walkable. So, he is leaning towards a “no” on DeSilva.
City Council and Creeks Committee Meeting Page 35 of 50 October 23, 2023 Vice Mayor Dawson said she too would like to keep the walkable city concept, but if they look 20 years into the future and see a considerable growth this could be a part of that if they include DeSilva South now and at least preserve the idea of upzoning downtown later if they need to. She thinks there are ways such as the Lamorinda Bus and other ways to be sustainable to group those people living out that way to have better transportation options that a developer might even be able to build into programs for this area.
Also, the City is looking for space for a fire station and possibly that could be the area. She thinks they should stretch the idea of how their City can grow with residents, services, businesses, and she thinks right now it is zoned for single-family homes and it would be a shame if that is what goes in. So, she just thinks it is a good opportunity.
Councilmember Gerringer said she is supportive of putting DeSilva South in, but concerned about having it go in at this point in the process, similar to what Councilmember Kwok stated. Part of it that she thinks for meeting AFFH and the other elements of the programs, they will be pushing it farther down. She appreciates looking at the downtown and lowering some of the densities but not so much where they get back into another round with HCD where they do not get a certified Housing Element. There are reasons they got to this point in the densities approved in January, so she is having a hard time making that change at this point. She has heard arguments for doing it. She thinks they also got to this point because they did not do some of the things outside of the downtown that they could have potentially looked at. She is not suggesting to go back and do those now, but if they put DeSilva South in, she wants to be very thoughtful about how they change the densities downtown. She does not think it is an easy/or.
EXTEND MEETING
ACTION: It was M/S/C (Dawson/Gerringer) to extend the Council meeting until 12 midnight. Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
Mayor Anduri asked that in putting DeSilva South back in it basically means zoning 60 acres at 30 or 35 du/acre. They zone the whole thing but they only take 9.5 acres as an opportunity site.
Mr. Wolff said since the City incorporated there have been properties or parcels that are divided by district. There is a zoning district line that bisects the parcel in some way, shape, or form, and the code prescribes how that situation is handled. While staff worked diligently to try to snap a zoning district line to a property line, it is not always realistic or possible. In this case, just the lower portion or 9.5 or 10 acres was identified as an opportunity site would be rezoned and not the entirety of the 62 acres. The remaining acreage would remain LR5.
Mayor Anduri said it sort of ties their hands if they go down this road, and he is not sure he would want to do that. At least one of the things people talked about was getting a playing field out of it. So, they wanted to expand beyond the 9.5 acres for that purpose. Mr. Wolff said the area identified by GPAC early on as an opportunity site, there was significant discussion around this being an opportunity site for athletic facilities and fields which the City is currently deficit in and has the Blue Ribbon Task Force on it is 15 or 20 years old now. It has been that long that the PTR Commission has been working to identify a site and bring a new field to fruition. That was a significant part of the discussion at GPAC, and by the PC and Council previously when the Council previously discussed it and gave direction on it in November and again in January before the Council adopted and staff submitted to HCD.
City Council and Creeks Committee Meeting Page 36 of 50 October 23, 2023 Mayor Anduri said his concerns are that GPAC voted 6-5 to recommend the site so it was not a unanimous vote. The PC took it out, so it is not as if it came to the Council and they made that change.
Councilmember Candell said if they do upzone for 9.5 acres for a development opportunity site she asked if there is an opportunity to rezone outside of the Housing Element parts of it for fields and park as part of this process. So, they put in a package that is not all for the Housing Element but it is all for the City’s goals.
Mayor Anduri said they can do it now or later. Councilmember Candell agreed, but she asked if that leaves the City open to do that.
Mr. Wolff said the challenge becomes if an area is rezoned in light of housing. Coming back and modifying that is subject to SB 330 which the Council is aware of and so he is concerned that not considering both of those features or desired outcomes simultaneously and considering both of those and doing them at once could paint the zoning into a corner.
Mayor Anduri said he does not want to go too far down this road. It seems like it is very difficult to do that because the Council has no idea at this point what they would need to rezone in addition to the 9.5 acres in order to get a playing field. But, coming back to it he is concerned because he agrees with Councilmember Kwok that putting an additional 500 or s0 cars there. He understands that if people live in the downtown they will want a car, but if they are in the DeSilva South development, they are more likely to have more than one car, so he is sure there will be many more cars with a development at DeSilva South. They almost have to have a car to get everywhere except the Reservoir, Community Garden, or Oakwood, so you are spreading out the town and he does not think they are at a point where they want to do that. But, he is also very concerned this is the only large plot of land within the City that can be used for multiple playing fields. Once it is gone, it is gone and there is nowhere else to put playing fields. They are planning for 2,000 additional dwelling units, 4,000 more residents, 1,500 more kids, and who knows how many of those will be soccer players, pickleball, and they will lose this site as a complete recreational facility.
He also stands by the existing General Plan which calls for the entrances to the City that should be as open and undeveloped as possible, so putting playing fields there is the highest and best use of that property.
So, he was still in favor of the plan before the Council without DeSilva South. He can certainly be persuaded and understands the arguments on both sides, but once that property is developed they will not be able to use it for recreational facilities other than perhaps one field.
Councilmember Candell asked if staff imagines a way they could somehow get under 10 acres zoned for housing and try to somehow get some of the City’s other goals on that site as well. Mr. Wolff said he thinks a development agreement could be an effective tool in realizing that.
Councilmember Candell asked if this will help the City towards a development agreement or she asked if this will hurt the City in terms of a development agreement if they upzone. Mr. Wolff said it would diminish it and would hurt it. Councilmember Candell asked with it not zoned at all is it better, and Mr.
Wolff said correct because a development agreement is a negotiated contract wherein the City gets something and the developer gets something. Starting from the status quo would be the most advantageous even if it was just the 10 acres.
City Council and Creeks Committee Meeting Page 37 of 50 October 23, 2023 Vice Mayor Dawson said in the downtown development agreements, some things might be zoned differently than what actually goes in based on a new development agreement. Obviously it cannot be in a different zone, but if someone wanted to build more units, a new agreement the City would allow for that as long as it is getting something back in that agreement. So, she asked if that could still be the basis if they zoned it differently than what it is now. Mr. Wolff said then the new baseline for giving up more would increase.
Mayor Anduri said when this was before the GPAC, he thinks it was 16 developable acres, with the idea that 5 of those would be for the field and 9-11 would be for developing housing. If the Council was to do nothing and it is decided they want to have housing on that site and do a development agreement, then they cannot use this property for opportunity sites for RHNA purposes. Mr. Wolff said this is correct. It could not be achieved in the timeframes the City is under.
Mayor Anduri said if the City were to rezone 9.75 acres and then the property owner said this is what he needs and he goes ahead and builds an apartment building there, the City would get nothing out of it.
Mr. Wolff said correct, unless there is some accrued benefit for the developer through the development agreement. If they do not need anything from the City then the City does not have anything to offer.
Mayor Anduri said he believes there are 2 Councilmembers who are supportive of rezoning 9.75 acres to either 30 or 35 du/acre, and that would mean they would look at what would happen to the downtown.
That would mean a longer time period the Council discussed because they would need to look at the AFFH and other things and a November time period rather than the October 26th.
There are 2 Councilmembers who want to keep it out and we heard the reasons.
Councilmember Gerringer said for all of the reasons outlined by Mayor Anduri and Councilmember Kwok, she is still concerned with putting DeSilva in at this time. While they were talking about the yields, she is also concerned with the minimum 88% requirement and how that impacts housing production. One of the things she wrote down earlier was if you put DeSilva South back in and you maybe make some adjustment in the downtown, she asked could you lower the yield which requires them to go back again, and play games with the yield and then require minimum densities.
She was going back and forth with putting DeSilva South in, which pushes it back down. She asked if they can use it to fill another piece of that in how this ties the Council’s hands on some of the ways they might want to use that property down the road. By changing the zoning they increase the land value for the developer and the developer would have less motivation to work with the City for a community benefit.
Therefore, she is very torn but is leaning towards not putting DeSilva in unless it can provide the City an option on requiring the densities to get HCD to approve it. Therefore, at this point she is supportive of not putting DeSilva South in.
Mayor Anduri asked if she was suggesting that if we were to put it in, Councilmember Gerringer would want to use it to lower the 88% yield. Councilmember Gerringer said she does not know how they would do that, but you are getting more units by putting DeSilva South in as an opportunity site. The tradeoff presented has been to lower everything in the downtown except for 3A or 3B to 50 to get them back.
Right now having it north of Mt. Diablo Boulevard at those higher yields, is there a place in there where you get DeSilva in, a great development and hopefully a sports field, and you don’t have to tie the city’s hands that every opportunity site has to be at 88% and effectively doubling like the Terraces, the numbers.
City Council and Creeks Committee Meeting Page 38 of 50 October 23, 2023 Mr. Wolff said with respect to the reference to the Terraces, he sees the Terraces as an anomaly and not an opportunity site like all opportunity sites that are not pipeline sites; it is called the Terraces because of its steep topography, and this is the primary limiting factor on that site—the topography of it. He thinks it is correct that all along and current still there are three factors that bear on the bottom line and those are density, yield, and land area that goes into each of those. There are a myriad of rules of what can and cannot go in and these have been discussed at length. So, yes, it is a possibility to change any one of those numbers and be able to inversely change the other factors.
Councilmember Gerringer said for all the reasons they are trying not to do 11th hour changes, right now if she was making a decision, she would say that they not put DeSilva back in at this point in time. They can still circle back after they talk about the downtown densities.
Mayor Anduri asked to move onto the Downtown. He said from Dolores to First Street on both sides of Mt. Diablo Boulevard, there is no change. He clarified that the zoning strips 3B and 4 are 35 du/acre and the core of the downtown along the boulevard stays the same, and recognized staff was displaying the map showing this.
Mayor Anduri said it continues on the south side in Area 6 from First Street to Pleasant Hill Road and that stays the same at 35 du/acre, so no change. What he is suggesting the Council consider is on the north side in Area 3B they consider First Street to Second Street and keeping it at 35 du/acre for this cycle because that would not affect the RHNA numbers. So, the big change in what they have now is all along the freeway from Risa to Pleasant Hill Road it is 75 du/acre. Mr. Wolff clarified it is actually more of Carol Lane.
Councilmember Gerringer asked for the Mayor’s rationale for that piece, and Mayor Anduri said it is because there are no opportunity sites other than those in the pipeline. He said he knows there is a lot of controversy on this. There are some polar views and he was in the middle on this. He would prefer to keep the zoning as much as possible along Mt. Diablo Boulevard in the core at 35 du/acre. In his view, with density bonus, that provides plenty of height for new development along Mt. Diablo Boulevard.
When going above that, there is a risk of much higher stories and larger development. The difficulty with what they have now is the 75 du/acre from the freeway down to the properties along Mt. Diablo Boulevard, which can be quite dense.
Councilmember Candell asked how much of a change would that be for staff to add the First and Second Street to 35 du/acre. Ms. Robles said it would not be much of a change since it would not affect any opportunity sites; however, they do want to keep in mind continuity as far as planning principles and trying to create contiguous areas in the downtown, or having a block where it is substantially different from the surrounding areas. The Council might want to consider the implications of that.
Councilmember Candell said basically the City already has approved projects that are filling most of it.
Mayor Anduri agreed and said the bank on the corner is not an opportunity site and Corporate Terraces surrounds that, and that is already in the pipeline. Then comes the 9 or 11 townhouses which are already in the pipeline. This takes them all the way to Second Street.
Ms. Robles said, however, there are other prominent parcels like the bank on the corner and the convalescent home across from Whole Foods. She just raises this to be mindful of the context, but if that is the direction of the Council, staff will pursue it. It would not be a huge change on staff’s end.
City Council and Creeks Committee Meeting Page 39 of 50 October 23, 2023 Mayor Anduri said the other reason he is suggesting it is that First Street is a main corridor into the town and that corner across from the Library is a very visible corner, so he would not want to see a 10-story building across the street from the library.
Mr. Wolff said the Mayor’s suggestion is consistent with what the City has done in the downtown, using streets as the boundaries between districts both in the current zoning and in the DSP. He believes they have stuck with streets being the boundaries between districts. That said the PC and Council have already made the direction on the stepping up or down of the density along that line, kind of mid-block. To the degree they can snap the district boundaries to property lines, they will do so but it is not creating a new precedent of lots divided by district.
Mayor Anduri said in thinking about how it appears, assuming Corporate Terraces is built, they have a series of 3-story buildings and again on the corner, he thinks the tall buildings belong off the street. They will be tall enough on the boulevard.
Councilmember Candell said she can support that idea, and other Councilmembers concurred.
Mayor Anduri asked for other changes to the downtown.
Councilmember Candell referred to Area 1B and she understands the continuity comment, but it is West End north where there are no opportunity sites and they are still upzoning it to 50 du/acre. Mayor Anduri said he went back and looked at the minutes on that and he believes staff’s recommendation on that one involved planning principles and keeping it a uniform area.
Ms. Robles expanded, stating since those conversations staff and Councilmembers have met with developers discussing best practices for mixed use development and residential development. A lot of direction was those areas—West End and East End are prime for residential development and that was the thinking. Although there are no sites similar to the last cycle, many things that were not opportunity sites were developed. It may be the case that this change can create symmetry across the street and also result in more development.
Vice Mayor Dawson said understanding the further one is away from the core, the less commercial viability of those mixed use buildings. She could see helping to stretch that commercial zone. Frankly, it would be nice to serve those people closer in, but she is just trying to preserve their zoning as much as they can because there is density bonus. At 88% minimum density which she thinks is a great idea, they will definitely get those larger buildings.
Mayor Anduri asked and confirmed there were no other comments on the downtown. He is hearing staff make the one change but otherwise keep it as is. When they circle back to DeSilva South, if they decide to make a change, they will be making additional changes in the downtown.
Councilmember Gerringer referred to retail and restaurants. She knows GPAC, the PC, and Council has discussed this. They have had and were sort of criticized for having multi-use as well, but having that multi-use retail residential in this, she asked if they were assuming they do not have that any longer. She thought they still had that as their goals, or she asked if they are just saying to build residential all the way through.
City Council and Creeks Committee Meeting Page 40 of 50 October 23, 2023 Ms. Robles asked and confirmed Councilmember Gerringer was referring to programs and not realistic capacity. Councilmember Gerringer said the Council talked about it. The Chamber of Commerce said if they are going to do that, one side said not to have those limits because the City will not meet its numbers and just let the market take care of itself where developers will be services. If they are going to say they need retail, they need to make sure they have certain ceiling heights or all of those pieces, and she just needs to be reminded where they are in that conversation or if they did anything with that.
Ms. Robles said there is Policy 2.2; Support for a mix of residential and commercial developments downtown, but she thinks the feedback received from developers who work in the Contra Costa region is those kinds of requirements are extremely challenging to meet, but it is included as a policy to support mixed use development.
Councilmember Gerringer asked if it will not serve as a barrier to create housing if they leave that policy in there. Ms. Robles said since it is not a requirement, it is not something they are mandating and so it would not be considered a barrier.
Councilmember Candell asked if it is true that one-half mile from BART is housing by right no matter what, so the City does not have the ability to force mixed use any longer. Ms. Robles said that is parking requirements. There are many stipulations under the bill like road width and many other things so it was not entirely clear whether that applied to parts of Lafayette, but staff can look into mixed use where they cannot force it one-half mile from BART.
Vice Mayor Dawson reiterated that the Chamber of Commerce did recommend adding DeSilva South earlier and they resent that letter. The Council heard the sales tax presentation tonight that they need to preserve as best as possible their base and grow it. Mr. Wolff weighed in that the 88% minimum density might incentivize people to put in mixed use with retail at the bottom, and she thinks it is a good idea to have a minimum density, but if they are starting with a high number, she can see where that might be cost prohibitive to have the commercial part there depending on the mix. So, she thinks if they can relieve pressure on the 50 units in the east end, she is just making more backup for why she thinks DeSilva South could make sense, granted knowing they are down to the wire.
Mayor Anduri moved onto the 88% of zoned capacity and asked how Councilmembers feel about that.
Vice Mayor Dawson thinks a minimum zoned capacity is a great idea and they have come up with the 88% because they are confident it is a compromise with what they have done historically, granted with the density bonus. Her only question is whether the Council is still confident, knowing if they create that as a minimum across all opportunity sites they would stay with the 88% and asked if there is any flexibility that would be helpful if they lowered that a bit.
Ms. Elrod said right now, no because they have it baked into the spreadsheet and they need to have 88% to meet their RHNA. Councilmember Gerringer brought up a point which is if DeSilva South were to be added in and they kept the zoning in the downtown the way it is, they likely could reduce the 88% to some other number. But, without a minimum density they will still going to be in a battle of whether or not they should have included the Terraces in their analysis, whether or not they should included this or that even though they have lots of good reasons why they did not include the Terraces specifically.
City Council and Creeks Committee Meeting Page 41 of 50 October 23, 2023 This has consistently been brought up by the advocates as proving that the City does not allow development at more than 50% of zoned density. Obviously, that is not true because of all these projects with density bonus, but the City is not allowed to use those as the argument. So, absent a minimum density requirement she feels strongly they will go round and round with HCD until they tell the City that they have to use something akin to what the advocates have said, or 46% of zoned density. Then, they are back at square one with everything, and they do not want to go there.
Vice Mayor Dawson said she is for the minimum density and 88% is right. Barring them doing anything different with DeSilva, she thinks it is a good option.
Councilmember Candell agreed. Out of all options they have it seems like this is one of the ones that makes the most sense for the City to implement.
Councilmember Kwok said he will offer a different viewpoint. He worries about the unintended consequences with the 88%. They had a speaker who talked as a developer and he has heard other developers say the taller and bigger the building, the more expensive they are to build. You go beyond a certain height it triggers a different type of building style. That’s a more expensive cost and may not pencil out, so 88% is an average. Some development will be higher and some lower, but if you make it the floor, then everybody has to be that or higher and the City will likely be something higher than that. So, he worries they may end up with less housing or just working on paper to say what 75% and 88% is. This is not what reality is when you build a building and you pencil it out. They had one developer in the room, but he would be curious to see how many developers would say this is a good idea.
Ms. Elrod said as a point of contrast to that, most developments have been over 100% of zone density so the 88% would not matter for many of them because they get the density bonus. Councilmember Candell agreed and said they have come in around 110%. Ms. Elrod said it is 111%, so the 88% would be essentially meaningless because they are already coming in over 100%. The City cannot use that as the justification.
Councilmember Candell said she thinks the math makes sense and she thinks the developers are coming in. They have 50% density bonus which is getting them up at 110% to 115% consistently. Every single one of them over the last 3 or 4 years has come in over that. So, she is not thinking 88% will thwart it and thinks it may encourage them to use density bonus. It will be less people coming in and saying they do not want to use density bonus which does not help at all. So, to her it seems like the better choice to encourage them to put in the affordable housing.
Vice Mayor Dawson added she would love it more if they had DeSilva South once again and take the pressure off that. If they had 75% she thinks it would be tough for someone to do the 88% and make it something that is reasonable for the town. Either way, she supports a minimum capacity.
Councilmember Gerringer thanked Councilmembers for the discussion and explanation and Councilmember Kwok’s comments. She had concerns about limiting themselves in terms of product, but she will support the minimum.
Councilmember Kwok said if the City does the 88% minimum density, obviously they do not want to remove it during the cycle because it is part of the Housing Element. But, if they found it was unsuccessful at some point it does not have to be in perpetuity, and he asked if they could remove it after the 8th year of the housing cycle. He heard they could not do mid-cycle because that is part of the Housing Element.
City Council and Creeks Committee Meeting Page 42 of 50 October 23, 2023 Ms. Elrod said if the Council had new opportunity sites or pipeline projects or something, they could adjust the inventory to reduce that number. She thinks what they want to guard against is not dipping below the net units and do not want to invoke a net loss of units. She thinks a mid-cycle review makes perfect sense.
Some things might get adjusted. They might have new projects they never envisioned they might be able to put in there and adjust as time goes on. But, she does not think necessarily they are stuck with it 100% of the way.
Mayor Anduri said his understanding is that all Councilmembers have agreed to include 7 of the FBO sites at 35 du/acre, upzoning to 35 du/acre. They are not including DeSilva South. They are keeping the downtown the way it is in the chart other than keeping along Mt. Diablo Boulevard from First Street to Second Street at 35 du/acre, and they will have the 88% of zoned capacity.
He said in coming back to DeSilva South, he asked someone if they could persuade him why they would not want to keep that available for recreational facilities. Secondly, he asked why they would not want to keep the entrance to the town low density and scenic, as he is open to persuasion.
Vice Mayor Dawson said in the East End, they are proposing zoning up to 75 du/acre as you come in and 50 du/acre. This is quite high. Also, if you zone the 9.75 acres at DeSilva South, there could still be, depending on how it is built, room for parks and fields. She thinks this is part of the creativity of the developer. She thinks there is still room and if it is going to be developed, she would like to see it count towards their RHNA numbers, as this is potentially 300 units. Once they upzone they cannot downzone it, and those are pretty high numbers.
Councilmember Candell added that any developer is not just going to look at Lafayette. They will be looking everywhere right now. Regardless of the market conditions and high interest rates, the ability for a developer to go into a town like Lafayette and have these streamlined, easy things. She asked what developer they would attract over to DeSilva South that will all of a sudden want to give the City a lot of stuff when they can go to another city and build something completely streamlined with density bonuses and all these incentives or gifts. She does not know what the City needs to do to make DeSilva South be attractive to a developer agreement in this current environment and State laws and giving them all these gifts. So, as much as she would love to get something great, it may be a thing of the past. So, this is why she favors putting in DeSilva South because she does not think the City will get a developer to come in like they used to. Those days are past.
Mayor Anduri said he is not looking for a developer coming in. He is looking to use that for municipal purposes and potentially buying the entire 62 acres. He asked what the City will do for recreational facilities. Councilmember Candell said they can keep the 5 acres to not be upzoned and the City can buy that, so they keep the prime acreage for the sports field and not part of the Housing Element. Mayor Anduri said he is thinking of buying the entire property and questioned what the City will otherwise do.
Councilmember Candell said she thinks a developer agreement is the only way they will get that, and the City does not have the money.
Vice Mayor Dawson said they are at a place now where the City will need to look at its fiscal sustainability and it is a big ask, but that could be part of what they are looking to do—get funding for preserving that space for what they might want to do for municipal uses.
City Council and Creeks Committee Meeting Page 43 of 50 October 23, 2023 They will also be looking at the downtown corridor and how to make that more safe and feasible for people to travel, so there are things they will do as they look into the future. She is just thinking by preserving the opportunity right now by zoning it and also having it count towards RHNA numbers, that is a good thing. It still lends itself to a vision for the future.
Mayor Anduri asked how that preserves the opportunity to use that for recreational purposes.
Vice Mayor Dawson said as Councilmember Candell said, they are not zoning everything—just the part which will count towards RHNA numbers. She also agrees there is also an opportunity to work with the developer because it is an attractive spot. She questioned what other spot in the county is as attractive as that site and she hopes it is something the City could proactively look for a developer for it who would work with the City on what they are looking for. It does have the opportunity for that kind of creativity.
City Manager Srivatsa said it is approaching midnight and the Council has 2 new items; one is time sensitive and the Council also pulled an item from the Consent Calendar but that can be considered at another meeting.
Mayor Anduri suggested hearing Item 15 and consider Item 11.C which was removed from the Consent Calendar. They will try and hear Item 17A and B as well.
OPEN ITEMS/EXTEND MEETING
ACTION: It was M/S/C (Gerringer/Candell) to open Item 15 to hear Item 11.C, 16, 17 A and B. Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
ACTION: It was M/S/C (Gerringer/Kwok) to extend the Council meeting until 12:30 a.m. Vote: 5-0 (Ayes:
Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
Mayor Anduri moved up Item 15 on the agenda.
15. ITEMS REMOVED FROM CONSENT
C. Ordinance 689: City-initiated update of the Lafayette Municipal Code (LMC) regarding Senate Bill 9 (SB 9), making the provisions of LMC Section 6-38, Housing Developments and Urban Lot Splits, a permanent part of the LMC. CEQA Determination: Exempt from CEQA pursuant to Government Code sections 65852.21(j) and 66411.7(n)
Recommendation: Waive second reading and adopt Ordinance 689.
City Attorney Mala Subramanian stated staff received correspondence from the California Housing Defense Fund that came in very recently. They made several comments. She reviewed the letter and one of the comments related to a height limitation the City has in the ordinance for ADUs of 17 feet and reference that this should be amended to reflect ADU law.
Given where the City is in the process, staff is recommending the Council adopt the ordinance. Staff agrees this is not enforceable so staff will note that and staff’s recommendation is that at a future date either when staff brings back amendments to the ordinance given the law has changed or if there are other zoning text amendments, staff can make this particular revision at that time and not enforce that.
City Council and Creeks Committee Meeting Page 44 of 50 October 23, 2023 She also noted the City’s ordinance has a severability provision so anything that is not in compliance with law does not invalidate the rest of the ordinance. She recommended the Council waive second reading and adopt Ordinance 689.
Mayor Anduri opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Kwok/Candell) to waive second reading and adopt Ordinance 689. Vote: 5-0 (Ayes:
Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
14. PUBLIC HEARINGS - GP01-23 Housing Element & EIR – Continued….
Councilmember Kwok referred to comments on the DeSilva property and while he was not here to convince the Council one way or the other but given what he has heard tonight there are many complicated matters. This is a big topic and with so many new issues brought up, he did not think the Council should be discussing this at midnight without the public. He does not feel comfortable moving this forward given how large the issues are. He would still say as a matter of procedure and process, they saw that downtown densities have been unchanged since January 23, 2023, so he questioned how is it now 10 months later they are unhappy with it and they need to add in DeSilva. He did not think that made sense to him. While there are things he likes about it, it is a much longer discussion of how to do it the right way, and it is a big topic the Council should not address at this time.
Councilmember Gerringer said for many reasons she agrees with Councilmember Kwok. She has had discussions with a number of people in the community who would like a sports facility at DeSilva which includes a pool because many members in the community do not have a way to swim. They also have laid out a plan for money and resources to actually help to fund that and do not feel it is mutually exclusive.
So, she thinks they have options for housing down the road. She appreciates having it in this cycle as an opportunity site has certain appeal, but at this point in the process she is not willing to support including it.
Councilmember Candell said an argument against that is that the City has had HCD throw them into knots.
They just approved FBOs which was a big deal and a functional shift based on the fact HCD would not let them use their buffer, and all of a sudden there were not enough affordable units. Law changed, and they had to change the EIR to do it. The Council is actually changing its EIR in order to make that happen. So, the fact there is the January deadline does not make sense. Many people just do not agree with upzoning the downtown like this as a good idea for so many reasons. If these things can go to 113 units with a density bonus, they could be 8 or 9 stories tall and to her, the City just cannot support it. She does not think their infrastructure is built for that. Walnut Creek is with big wide streets, huge entrances to the freeways, and Lafayette does not. They have stop signs at their freeway downtown.
So, she questioned whether they really have the infrastructure to support all of this downtown. She thinks they will be very hard pressed to maintain their level of service to support all of this if it all gets built, and she thinks they will run out of money. It is fire, police, sewage, the traffic, everything, and she thinks this is a big decision and she never agreed with it. She just does not think this is good planning by the Council.
City Council and Creeks Committee Meeting Page 45 of 50 October 23, 2023 She does not think they will be able to support the level of services and handle all these people downtown because they do not have the resources and the land to do it right. So, she struggles with this. She would much rather put people out at DeSilva even if it risks losing the entire site so they do not make it a municipal park. As much as she would love it, she thinks it is a pipe dream, but having DeSilva is their outlet right now. This is why she is willing to look at it. She thinks it is a worthwhile endeavor to release the pressure on this downtown.
Mayor Anduri said if they move forward with DeSilva South, they will have to take this up at the first meeting in November or he asked if this can proceed without that. Mr. Wolff said he thinks it would need to come back. There would be a net increase and they would need very clear direction and understandable outcomes on what the reduction would be. He has heard in general terms discussion about reducing densities in the downtown, but he would like to see clarity around that. He does not know that can happen tonight, but perhaps.
Ms. Elrod said she does not think it can happen tonight. Staff must go back and think through how it would work and test different scenarios if they leave this area here or that area there, so staff cannot do this tonight.
Vice Mayor Dawson said if there was more direction and if they considered this, she could see at least something down to 75 du/acre to 50 du/acre if they are looking for trade-offs or if they need to do tradeoffs. Ms. Elrod said that is a possibility but there was no way they would know that unless they did the work and brought back different scenarios to the Council. Again, it would be an opportunity for the Council to look at several different things.
Vice Mayor Dawson said this is a time where they will actually be changing the nature of their downtown and that is why she thinks it is worth considering. It is one thing to say it is last minute, but at the same time, to Councilmember Candell’s point, many things have been thrown at the Council recently. Just in September they were looking at opportunity sites and they are back to getting the FBOs in there. Once it is changed, they cannot go back from 75 du/acre back down to whatever.
Ms. Elrod said they can if they upzone other locations to accommodate it. It is a no net loss conversation, so to be clear, it does not necessarily mean they cannot change the zoning. It means they would have to find other places to accommodate that.
Mayor Anduri said in looking at DeSilva South, if they didn’t include it and they tried to develop it for sports fields over the next 8 years and they could not do it, theoretically they could upzone DeSilva South for the next cycle and at the same meeting downzone the downtown, which is the “David Clark method.” Councilmember Candell said she thinks downzoning their downtown is going to be very tough as a takings argument would be heard. Mayor Anduri said it is not a taking.
Ms. Subramanian said she thinks they might have some unhappy developers, but she is presuming the Council would downzone it back to 35 du/acre or something if that was still fairly high. So, it would be hard to argue there was a taking. They still may get that lawsuit, so she does not want to say this is so.
Vice Mayor Dawson asked if they could downzone after someone did take advantage and built. Ms.
Subramanian said they are grandfathered in.
City Council and Creeks Committee Meeting Page 46 of 50 October 23, 2023 Mayor Anduri said there are still 3 Councilmembers who are in favor of moving forward with what they have before them, but with the new things this evening being the 88% of zone capacity, keeping Mt.
Diablo Boulevard on the north side from First to Second Street at 35 du/acre, and FBOs were already in there so that stays the same.
Ms. Elrod said staff just received an email regarding if the City Council is making changes to the Housing Element, they must re-circulate for another 7 days anyway with the new changes. They must make all changes including adding a new program and then re-circulate for 7 days.
Ms. Robles said regarding the 88% zone capacity minimum requirement, they must make publicly available for review and comment the Draft Housing Element before it goes to HCD because of this change, but it does not need to return to the Council.
Housing Element Wording/Appendix Revisions:
Mayor Anduri asked if there were any comments on the Housing Element itself. He asked if they mention somewhere in here the $215,000 allocated for the Affordable Housing fund. Ms. Robles said not the recent adjustment, but staff can make reference to that. Mayor Anduri said he thinks they were doing that to enhance their changes for certification.
Ms. Elrod said they would add it both to the base document and to the resources and inventory appendix because they talk about what resources are available for housing.
Mayor Anduri asked if there were any other changes to the Housing Element document.
Councilmember Candell referred to page H-48 and said on the bottom of the page is Item 4; “Existing uses or similar uses have been recycled based on recent trends.” Item D was “lower density residential” and she believes that was struck at the last meeting.
Ms. Robles said the request was for it to add “in the downtown” and it looks like staff added that to Appendix C but not into the main document. She will correct that.
Mayor Anduri said in that same section there is a reference to Table “X”, and he asked if staff should insert a number. Ms. Robles confirmed.
Mayor Anduri referred to page 52 and several places that refers to the June 30, 2022 deadline which has passed, but it states, “If any of these sites receive their ….before this date the spreadsheet shall be modified.” This ship has sailed so he wondered if this should be removed and others like it.
Appendix A:
Mayor Anduri referred to Appendix A, on A-17 below Figure 6 it states “Figure 7 error – reference not found.” On page A-25, under Resources for ELI Households, the 3rd paragraph down it states, “The community, including”. He asked to delete the comma and including because the next sentence goes onto say “These include.”
City Council and Creeks Committee Meeting Page 47 of 50 October 23, 2023 On page A-70 in the first full paragraph, the bottom line there is a reference to San Ramon. Then on A-76 in the first paragraph added there is a reference to “Contra Costa County and the Tri-Valley Area” so he assumes that came from the same source as the San Ramon language, and it should say “Lamorinda Area” he guessed.
Councilmember Gerringer asked to double check on the reference to “Futures Explored” and she does not think it is still here in the community.
Appendix B:
Mayor Anduri asked and confirmed there were no changes in Appendix B.
Appendix C:
Regarding Appendix C, at the top of C-13 there is another June 30, 2022 reference and the chart below that needs to be updated. He wondered in this chart which are the pipeline projects, he asked why Lafayette Lane-Miramar is not included in there. It shows up in the next chart. He said the affordability section did not get in here either, and Ms. Elrod agreed to fix this.
Mayor Anduri referred to C-20 there is a reference to Table 3 and he is not sure where Table 3 is located.
Appendix D:
Mayor Anduri asked if there were any changes for Appendix D. Ms. Elrod said for D, staff needs to redo the programs because they messed that up. If the Council skips the programs in D and they can discuss the programs in G, staff will ensure they are both consistent.
Mayor Anduri asked if there are any other comments for Appendix D besides this.
Councilmember Candell said there are a couple of comments on page D-9 and D-12 about lawsuits and the City has had so many lawsuits and we are trying to reflect how good the City has been. The City has always done the right thing and they never denied a multi-family project. It seems like instead of saying these bad things they could flip it and indicate they have done good things.
Ms. Elrod said they are required by law to talk about lawsuits. They have a lot of information in other places of the great things the City has done which had been developed by GPAC and it is in another appendix. This particular portion requires the City to talk about lawsuits and what happened with them, and she confirmed it is part of AFFH.
Appendix E:
Mayor Anduri then moved onto Appendix E and said on E-17, they talk about Lamorinda Village. He thinks if they could talk about the collaboration the City has with Lamorinda Village and the commitment of $60,000 a year to support memberships would be helpful. Ms. Elrod stated staff can add this.
Appendix F:
No changes.
Appendix G:
City Council and Creeks Committee Meeting Page 48 of 50 October 23, 2023 Councilmember Candell asked if the policies were the same as the actions because she said the numbering is different. In Appendix D, it was AFFH Action 2.5. She asked if that is not the same.
Ms. Robles said because the requirements for their program/actions for AFFH are a little bit different, they changed the numbering which they are happy to change back. But, the policies are different than the actions. Actions are more comparable to programs. Goal 5 is all of the AFFH actions within Appendix G on page 8.
Ms. Robles said she also would like to correct one of her earlier statements regarding Action 2.7 which is the program that reads, “Incentivize developers to provide a range of unit sizes to provide more affordable by design units.” The direction from OPR was actually to change it to an incentive rather than a requirement and not remove the program entirely. That is why it is still in the list as Action 2.7.
Councilmember Candell said she remembers talking about it and it wasn’t necessarily missing middle.
They were trying to get larger units in their multi-family. Ms. Elrod said they have a program that says we want large units for family housing which is somewhat earlier in the goals, policies, and programs. This is specific to missing middle by having smaller units that would be “affordable” by design. So, it is similar but not exactly the same.
Councilmember Candell said Action 2.7 is citywide and they are trying to get multi-family units everywhere in the City. She asked if they would have to rezone the whole City. Ms. Elrod said no, it is a shorthand for any place where multi-family is allowed. If you want staff to clarify that this is essentially what they mean, they can do this. But, geographic targeting is required in AFFH requirements. Councilmember Candell said she thinks this would be helpful because the whole City is high opportunity and it states “Citywide.” To see that would imply they will rezone everything Citywide and that is not true. Ms. Elrod said staff can clarify that.
EXTEND MEETING
ACTION: It was M/S/C (Gerringer/Kwok) to extend the Council meeting until 12:45 a.m. Vote:
5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
Councilmember Candell referred to the AFFH Action 2.8; “Monitor the Implementation…” and she said monitor sounds great, and asked if all it is would be monitoring and then they would adjust things, so they are not choosing what they do today to all of a sudden happen. Ms. Robles confirmed and said there is a similar program for ADU numbers so the State asked to add a program for mid-cycle check in and see if the City was meeting its projections or not, and if not, to adjust.
Councilmember Gerringer said in one of the communications the Council received, the Council talked about waiving impact fees for 100% affordable projects. She does not remember where in the process they took this out, or she wondered where it was located. Ms. Robles said that was a program suggested by members of the public, but she does not believe it was ultimately included as a program.
Ms. Subramanian asked how long of a time would it take to make these corrections for realistic dates. Ms.
Robles said she thinks staff can make those edits very quickly.
Mayor Anduri asked for a motion to direct staff to make the revisions, re-circulate the Draft Housing Element and aim to file.
City Council and Creeks Committee Meeting Page 49 of 50 October 23, 2023 Ms. Subramanian stated staff will submit the Draft Housing Element to HCD, will receive a comment letter back hopefully with minimal comments, and then it will run through the process of hearing it by the PC making a recommendation, and then back to the Council with the rezone.
ACTION: It was M/S/C (Gerringer/Kwok) to direct staff to make the revisions, to re-circulate the document for 7 days for public comments; to file the revised Draft Housing Element with HCD as soon as possible, and to add a program to require 88% minimum density. Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok; 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.
Councilmember Gerringer said because there was a question on “Ask Me Anything” on Recycle Smart and picking up cans on a regular basis, David Krueger, Executive Director of Recycle Smart will be coming to the Council’s November 13th meeting and will provide an update. She thanked the Chamber of Commerce and the community for participating in the Res Run and said it was a beautiful morning.
Councilmember Candell said she would like to ensure the Council hears commenters at the very beginning of the meeting regarding the situation in Israel and Gaza. The first time it came to the Council, the messages they were getting was very confusing from these two communities. She is personally very humbled with everything going on. It seems like they might be able to come up with some way to address this where members of the community will be more open to what they are providing. She would be open to thinking about a way to respond in order to assure people the Council does care and is listening.
Mayor Anduri said it is unfortunate the way this has come up because he thinks each Councilmember would condemn the terrorism and it is pure evil. So, it might have been a mistake not to have done that at the last meeting to make clear where they stand. He thinks this Council has made clear where they stand with respect to both antisemitism within the community and their support of their Jewish neighbors. Their stand is against all hate, and they have seen expressions of hate against Muslims in the U.S. He has not seen it here in this area but that is also something they should be concerned about. He does not think there should be any doubt that there is no excuse and there is total evil of what happened on October 7th in Israel. Beyond that, he was not sure what they can say or do.
Councilmember Gerringer said the Council received the one email for sure but also pointed out that they also received the other email. Also, she personally am reaching out to friends and colleagues and others who are personally struggling even more with this because of being Jewish or those who have family and friends in Israel. The fact the Council is not specifically making statements in a public way she will take into consideration the messages from the speakers at the beginning of the meeting, but she also wants to do the right thing in an authentic way, so she appreciates them coming and talking to the Council and the public about how this might appear different. She did not think the Mayor was trying to keep anything from the Council.
City Council and Creeks Committee Meeting Page 50 of 50 October 23, 2023 Ms. Srivatsa said on the subject of speakers, she asked if the Council would like to revisit the Zoom option given tonight’s events. Staff can bring it back on the next agenda, and Mayor Anduri said this is unfortunate and a shame after they have gone to great lengths to encourage public comments from those who cannot attend the meetings and then to have to say they can watch the meeting but not provide public comment, but he agreed to put it on the agenda.
Vice Mayor Dawson reiterated that Lafayette does stand against hate and those comments were out of line. Even though she is glad they were able to stop the speaker, the Council respects First Amendment rights, but they stand against that hateful speech or acts. Mayor Anduri agreed and said they do not want anyone to doubt that is not in accord with community values.
16. WRITTEN COMMUNICATIONS
A. E-mail from Van Le, Youth Advocate and Shameka Bolds, Program Coordinator, Community Health for Asian Americans-Pride & Purpose Project, requesting a proclamation recognizing “Red Ribbon Week”, October 23-31 in Lafayette.
Recommendation: Adopt a proclamation recognizing “Red Ribbon Week”, October 23-31 in Lafayette.
Councilmember Gerringer stated she received this last year when she was Mayor and this year body did not know they are a rotating City Manager/Council governance structure. She thinks this does align with their values, knows that they make decisions at the beginning of the year about which proclamations they will approve and put information about other dates and things that come before them. She knows the District did not have a specific Red Ribbon Week, but in the past they have and she believes the Council is supportive of encouraging such programs that would lead to drug prevention. Therefore, she is supportive of having the Mayor sign this proclamation.
Mayor Anduri opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (Gerringer/Candell) to adopt a proclamation recognizing “Red Ribbon Week”, October 23-31 in Lafayette. Vote: 5-0 (Ayes: Anduri, Dawson, Candell, Gerringer, and Kwok; Noes: None).
B. E-mail from Elsie Mills from The Rainbow Community Center, requesting a proclamation recognizing November 20th as Transgender Day of Remembrance.
Recommendation: Discuss and direct.
Mayor Anduri stated this proclamation request came to the City Clerk, and it comes from the Rainbow Community Center. This is the organization that the DEIB group worked with to put on the webinar the week before last. He asked if the Council would like to put this on the next agenda, and if so, they will agendize it. Councilmembers agreed.
17. ADJOURNMENT – 12:39 a.m.
ATTEST: APPROVED:
______________________________
Joanne Robbins, City Clerk Carl Anduri, Mayor