City Council & Public Art Committee Meeting Page 1 of 28 February 26, 2024 7 City of Lafayette
City Council & Public Art Committee
Minutes
Lafayette Library and Learning Center – Don Tatzin Community Hall February 26, 2024 3491 Mount Diablo Boulevard, Lafayette, California 6:00 p.m.
We acknowledge that Lafayette is part of the unceded, ancestral homeland of the Bay Miwok people. The Bay Miwok and neighboring Ohlone people have lived in and moved through this place for thousands of years. They stewarded and shaped this land for hundreds of generations. We express our appreciation and gratitude for this profound legacy, which enhances and contributes to our lives to this day. We will strive to honor this land and strengthen our ties with the Indigenous communities that continue to live and work in our East Bay region as our neighbors and community members. We acknowledge and honor them and their ancestors, elders, and next seven generations.
As a courtesy, and technology permitting, members of the public may participate virtually. However, the City cannot guarantee that the public’s access to teleconferencing technology will be uninterrupted, and technical difficulties may occur from time to time. Unless required by the Brown Act, City Council/Board meetings will continue despite technical difficulties for participants using the teleconferencing (Zoom) option. To participate virtually in the City of Lafayette’s public meetings and provide public comment, please follow these steps:
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City Council & Public Art Committee Meeting Page 2 of 28 February 26, 2024 Mayor Dawson called the Regular City Council meeting to order at 6:00 p.m.
2. ROLL CALL
Present: City Council: Mayor Dawson; Vice Mayor Kwok; Councilmembers Anduri, Candell, and McCormick
Absent: None
Present: Public Art Committee: Chair Patrick Dunne and Committee members Dave Dondero, Yukie Fujimoto, and Erling Horn
Staff Present: Niroop Srivatsa, City Manager; Greg Wolff, Planning and Building Director; Sonia Urzua, Assistant Planning and Building Director; Matt Luttropp, Engineering Manager; Jenny Rosen, Staff Liaison to the Public Art Committee; Suzanne Iarla, Communications Analyst; Mala Subramanian, City Attorney; Joanne Robbins, City Clerk
3. Disclosure and/or Take Action on Remote Participation due to Just Cause or Emergency Circumstances Pursuant to AB 2449 (Gov. Code section 54953(f).)
4. ADOPTION OF AGENDA
ACTION: It was M/S/C (Candell/McCormick) to adopt the agenda. Roll Call Vote: 5-0 (Ayes: Dawson, Kwok, Anduri, Candell, and McCormick; Noes: None).
5. PUBLIC COMMENTS – (For Closed Session items only) – None
6. CLOSED SESSION
A. Conference with Real Property Negotiators (Gov. Code Section 54956.8) Property: 3483 Mt. Diablo Blvd., Lafayette (APN 243-231-022-1) (Lease and Real Property) Negotiator: Tracy Robinson, Administrative Services Director and Niroop Srivatsa, City Manager Negotiating Parties: Bill Stuart
Under Negotiations: Price and terms of payment
Open Session – Report out of Closed Session – 7:00 p.m.
Mayor Dawson announced there was no reportable action taken in Closed Session.
7. PLEDGE OF ALLEGIANCE – Mayor Dawon led in the Pledge of Allegiance.
8. PUBLIC COMMENTS (For Items not on the agenda)
ANGELA ADAMS, Northern Cal Carpenter’s Union, proposed and emphasized their labor standards which includes livable wages, affordable healthcare, local hiring, and apprenticeship programs. She described the vital role labor standards play in skilled development and ensuring quality work, as well as local hiring, spoke about high quality health care, and urged the City Council to implement labor standards for all construction workers.
City Council & Public Art Committee Meeting Page 3 of 28 February 26, 2024
9. CITY MANAGER’S UPDATE
City Manager Niroop Srivatsa gave the following bi-weekly update on activities on department activities:
• From the Planning Department, progress is being made on two approved, multi-family projects; the Terraces of Lafayette continues with preparations of plans for a mass grading permit, and site work could begin this fall; and the 23-unit Half Avenue project has received its construction loan and the City should be seeing on-site activity fairly soon. Staff will be meeting with HCD tomorrow to discuss that department’s letter on the Housing Element, which the Council will be discussing later at this meeting.
• The Land Acknowledgement Task Force has met twice this year and has finalized plans for new street signs to be installed at the intersection of Mt. Diablo Boulevard and Lafayette Circle. The signs will be modified to include the Ohlone name for Mt. Diablo, which is Tuyshtak. The task force has also finalized the educational sign that, once completed, will likely be installed in the Rain Garden, at the Community Center, and perhaps even at the Reservoir. The plan is to have all signs installed within the next 3-4 months.
• Public Works has begun weed abatement in medians and weeds are very prevalent this year.
People will see crews replacing the mulch layer in the spring and summer to help reduce the growth of weeds and help reduce water consumption during the summer. • The Parks, Trails, and Recreation Department would like to thank Lamorinda CERT for their generous donation of 12, 5-gallon emergency water containers for the Community Center.
Lamorinda CERT can be found at www.lamorindacert.org.
• She reminded everyone that the Lafayette Green Award nominations are due February 29th and anyone is encouraged to nominate a Lafayette neighbor, colleague, organization, or a local business that has contributed to making the City a greener place through individual or collective actions. The awards will be announced in April at the joint meeting of the City Council and the Environmental Task Force.
Mayor Dawson opened the public comment period, and there were no speakers.
10. PRESENTATIONS
A. Mayor Dawson Recognizing Engineering Department Assistant Therese Kain for her recent lifesaving actions.
Recommendation: Receive and file.
Mayor Dawson introduced and recognized Engineering Department Assistant Therese Kain who acted to help a resident with life-saving actions.
Mayor Dawson opened the public comment period.
CLAUDIA BUBECK said she suffered a stroke the morning of February 2nd. She was on the phone to the Planning Department asking about getting a permit to take down a tree. In the middle of the call, she suddenly began using words that had no relationship to anything else. She sat down and about 3 minutes later, EMT’s arrived thanks to Therese Kain.
City Council & Public Art Committee Meeting Page 4 of 28 February 26, 2024 ERLING HORN thanked Therese Kain for her perception in this crisis situation was absolutely remarkable.
He added his thanks for recognizing Ms. Kain for her life-saving efforts.
City Manager Srivatsa then provided additional background, stating on a Friday Ms. Kain answered the phone and spoke with Ms. Bubeck. The call ended but Therese went through records to determine a callback number, left a message with the Police Department, and googled the phone number knowing the resident lived on Moraga Boulevard. She found a number and called 9-1-1.
MIKE MORAN echoed Ms. Srivatsa’s comments, said although Ms. Bubeck called the Planning Department she was talking to Engineering staff in the Public Works Department. Ms. Kain is an Engineering Assistant and she had to go through investigative techniques to find an address and phone number and get the EMT’s to the house. She only had a name and remembered a street name, and this does not surprise staff and is happy everything worked out well.
DANA ANDERSON said he has had the pleasure of sitting next to Therese for 18 years. He described Therese saying she had a weird phone call and she left her desk and returned quickly and proceeded to work, but he had no idea until Monday what had happened. Therese is calm and reserved which she uses every day and he recognized her for her efforts.
Mayor Dawson acknowledged Therese Kain for her life-saving efforts, said it is exemplary in the way she works and cares about residents in the community. She presented Ms. Kain with a plaque and a round of applause followed.
A SPEAKER thanked Chief Ben Alldritt and CSO Kathy Surges-Moscato for the plaque, thanked all first responders and medical personnel involved to bring this medical emergency to a successful conclusion, and also paid special tribute to the invaluable services of the 9-1-1.
B. Tracy Robinson, Administrative Services Director
Introduction of New Employee – Ashlyn Brookshire, Planning Technician Recommendation: Receive and File.
City Manager Niroop Srivatsa introduced and welcomed new employee, Ashlyn Brookshire, Planning Technician, provided an overview of her background, education, and experience in transportation planning, working for Fehr and Peers, worked on the Napa Valley Vision Zero Plan and the Merced County Active Transportation Plan. The City is delighted to have Ashlyn on their planning team.
Ashlyn Brookshire said she is excited to be part of the Planning Department team and work for the City of Lafayette, and Mayor Dawson and Councilmembers welcomed her.
C. Public Art Committee
Update on Goals and Accomplishments
Recommendation: Receive and File
Jenny Rosen, Public Art Committee Liaison, stated the Public Art Committee (PAC) will present their goals and accomplishments, and she briefly described and recognized the Committee’s endless hours devoted to the aesthetic beautification of the City.
City Council & Public Art Committee Meeting Page 5 of 28 February 26, 2024 Out-going Chair Dave Dondero gave a PowerPoint presentation, introduced the members on the Committee and Ad-Hoc Committees they are engaged with, and provided the presentation which included the Committee’s key accomplishments of 2023, the PAC’s 2024 Work Plan, and new initiatives the PAC intends to pursue as outlined in the staff report.
Mayor Dawson opened the public comment period, and there were no speakers.
Mayor Dawson and Councilmembers thanked the Committee for their hard work and accomplishments, for recognizing the 175+ year anniversary and walking tour, the Mural Program, for beautifying the City with visual art, and for educating residents on the importance of art.
11. CONSENT CALENDAR
Mayor Dawson asked if there were any public comments or items Councilmembers or the public wish to remove from the Consent Calendar. Councilmember Candell requested removal of Item 11.B and Councilmember Anduri requested the item be heard prior to Item 12. There were no other requests for removal or public comments.
A. Minutes
February 12, 2024
Recommendation: Approve.
C. Letter of Support for Contra Costa County Public Works Application: Olympic Corridor Trail Connector Project
Recommendation: Authorize the Mayor to sign and send the letter of support to Contra Costa County Public Works Department in support of a RAISE grant application.
D. Resolution 2024-10 Ordering the Preparation of a Report Proposing the Levy of Assessments for FY2024-25 for the Core Area Landscape and Lighting District 1979-1 Recommendation: Adopt Resolution 2024-10.
E. Resolution 2024-11 Ordering the Preparation of a Report Proposing the Levy of Assessments for FY2024-25 for the Residential Lighting District 1979-2
Recommendation: Adopt Resolution 2024-11.
F. Resolution 2024-12 Stormwater Pollution Prevention Program - Establishing the Rate Per Equivalent Runoff Unit for FY2024-25 and Requesting the County Flood Control and Water Conservation District Adopt an Annual Parcel Assessment for Drainage Maintenance and the National Pollutant Discharge Elimination System Program Recommendation: Adopt Resolution 2024-12.
ACTION: It was M/S/C (Anduri/Kwok) to adopt Consent Calendar Items A, C, D, E, and F; and to move Item B up to be heard before Item 12. Roll Call Vote: 5-0 (Ayes: Dawson, Kwok, Anduri, Candell, and McCormick; Noes: None).
15. ITEMS REMOVED FROM CONSENT
B. 599 Silverado Drive – Request for Construction withing the Creek Setback City Council & Public Art Committee Meeting Page 6 of 28 February 26, 2024 Recommendation: Approve the request for a creek setback exception at 599 Silverado Drive and authorize the City Manager to execute the required standard agreement with the property owner.
Councilmember Candell stated the Council received some letters regarding the project, and the staff recommendation is to approve the request with modifications and with the geotechnical report. She asked the City Attorney as to whether the City could enforce this because of ADU laws and setbacks. She confirmed the City can enforce this but wondered if there was support from Councilmembers to go against the staff recommendation so the owner of 599 Silverado Drive cannot go into the creek setbacks and not set a precedent.
Engineering Services Manager Matt Luttropp said this is the construction of a deck within the creek setback area off the back of an ADU so it has nothing to do with the ADU specifically. The deck is small enough and close enough to the ground that it did not require a building permit. The issue was that the County Building Inspector told the owner and contractor that they did not need a building permit, so they moved forward with it under the assumption they were fine to install the deck.
He subsequently spoke with Gary Farria who is in charge of the Building Inspection Department at the County asked him what happened, and whether their staff look for creek setback violations. He indicated not really, but what they are supposed to do is send people back to the City to receive approval for things that deviate from the approved set of plans. The approved set of plans did not show a deck so the owner moved forward with her project, built the deck, the City received a complaint from a member of the public, inspected the site, and found the deck was built in the creek setback area, let the homeowner know the process they must go through to obtain approval to leave the deck in the setback area, and she has subsequently gone through that process, and staff has recommended approval for this partly because of the extenuating circumstances in that she was told by a building official she did not need anything further for building the deck.
But, to avoid these problems occurring in the future, the Engineering Department will put holds on all building projects that have a creek setback on the parcel so the City can inspect the site to confirm that nothing additional was added to the project within the creek setback area before the owner receives occupancy. This way, the owner is not left holding the bag because they still have a contractor presumably they have not given a final payment to. If there is a problem, they have some measure of being able to remedy that with their builder without all costs being entirely on them.
Councilmember Candell asked how many exemptions the City has issued. Mr. Luttropp said he believes there are more than 20 and fewer than 40. Most of them are for things like additions to a master bedroom or additions to a kitchen where the person could not do the addition on a different part of their home.
Those where staff typically does not approve them are requests like building a swimming pool in the creek setback area. He knows of none that have been appealed to the City Council he has rejected, so people have accepted those rejections and moved on.
Councilmember McCormick said he appreciates the explanation, thinks there is remediation of due process so the City ensures it does not get stuck in this process. It sounds as though there were misunderstandings and it also sounds it is not unprecedented but common for this type of structure.
Councilmember Anduri said he wants to confirm that the primary condition that must be made before this can be approved is that there is no likelihood of danger to public or property, and Mr. Luttropp confirmed this is correct.
City Council & Public Art Committee Meeting Page 7 of 28 February 26, 2024 Councilmember Anduri said if the owner had come with an application before building it, he confirmed Mr. Luttropp had told him he would have asked them if there was somewhere else to put the deck and, if there was no other place, he would have approved it in this location.
Mayor Dawson added that the City does not want this to be precedent-setting, but she thanked Mr.
Luttropp for explaining the situation, exception, and that the Department put in place a process to hold these types of requests.
Mayor Dawson opened the public comment period.
DEBORAH BRUBAKER spoke of her needing to move from her San Francisco home to help her parents who are in their 90’s. Her mother has mobility issues and her father has Alzheimer’s. They do their best, but having an overlay of anonymous complaints takes a further toll. Her parents are on limited incomes and she is, as well and could not afford to purchase a home in or near Lafayette, so their solution was to put an ADU next to the family home that her parents purchased over 50 years ago. She and her two rescue cats moved into the ADU in May of last year.
In response to the complainant’s letter, she trusted the company she hired; Adore Homes, to build and permit the ADU properly and to do what was needed. The ADU company contacted the County about permits for a deck. The County was fine with the deck size and shed because they were undersized for requiring permits. Since the County’s inspection and approval of the project, it was finalized in January of 2023. She has additionally completed the request of the City’s approval. When walking the trail of the park behind her house, the creek cannot be seen. One must stand and stare hard through the trees to see the deck of her small ADU but what the complainant is asking for her to do is creating a very serious financial hardship, which is to tear everything down. It is her wish to finish this without any further acrimony or legal actions and to be able to focus on helping care for her parents. She respectfully asked the Council to abide by the staff recommendation for approval of this matter. She also provided pictures of the ADU and deck.
Councilmember Anduri said he had a conversation with a Creeks Committee member who also spoke with staff, and he asked him to speak on the matter regarding impacts on the creek.
DAVID CLARK said his thoughts were whether the Council supports it or not. He spoke with Mr. Luttropp last week about the item and he explained to him how it got there and how he made the decision he made in order to grant the exception which made sense to him. So, in a perfect world, they do not want to see decks encroach the easement area, but this was done before Mr. Luttropp saw it, so it became a balancing act on the choice to undo it or live with it and change the procedure so it does not happen again in the future. It is a relatively small impact so he was okay with Mr. Luttropp’s decision. He also checked with Will Elder, Chair of the Creeks Committee who concurs.
Councilmember Candell said she appreciates the explanation and she thanked the owner for building an ADU which is needed in the City. She now supports staff’s recommendation and voiced support for approval.
Mayor Dawson asked if staff could send a letter to the builder with a copy of the creek regulations, and Mr. Luttropp agreed.
City Council & Public Art Committee Meeting Page 8 of 28 February 26, 2024 Councilmember Anduri made a motion and commented that regarding precedential issues, he is not taking into consideration at all who owns the property, why the ADU is built, etc. and said it does not factor into his vote.
ACTION: It was M/S/C (Anduri/Candell) to adopt Consent Calendar Items B. Roll Call Vote: 5-0 (Ayes:
Dawson, Kwok, Anduri, Candell, and McCormick; Noes: None).
16. OLD BUSINESS
A. Greg Wolff, Planning and Building Director and Sonia Urzua, Assistant Planning and Building Director, Diana Elrod, Housing Consultant California Department of Housing and Community Development Review of Lafayette’s 6th Cycle Housing Element Recommendation: Receive status update and continue the matter to March 11, 2024.
Planning and Building Director Greg Wolff said staff is before the Council with the Housing Element update process. They were last before the Council in November of 2023 at which time the Council gave direction to make final revisions to the Draft Housing Element and submit it to HCD after the statutory 7-day public review period. This was submitted and received by HCD on December 14th at which time it began the 60- day period during which time HCD had to review and provide comments to the City as to determination with State law. On day 60, staff received a letter which was shorter than prior letters which indicates progress has been made and the City is closer to certification but not fully compliant with State law according to HCD’s findings. Staff is back before the Council with a brief update on this.
After receiving the letter on February 12th, staff immediately reached out to HCD and requested a meeting to further understand several of their comments because there is consistent language used between the letters and themes, whereas the City has made its best efforts previously to address those in re-submittals.
Clearly, it is not satisfactory to HCD so they need their engagement and direction on what constitutes a satisfactory response.
Mr. Wolff said the City’s new reviewer, Joanna Chang was very responsive. They set up a meeting date that is tomorrow which is positive movement. Tomorrow will not be their one and only meeting with HCD. They will request additional meetings and bring back to the Council in March the initial set of policy analysis and guidance based upon the outcome of the meeting. Staff has also engaged Veronica Tam and Associates who has assisted a multitude of other communities with getting certification for their Housing Elements including those Diana Elrod has worked on in the Bay Area. Ms. Elrod will provide a PowerPoint presentation and staff is recommending the Council continue the matter to March 11th where staff will provide the Council with additional information.
Diana Elrod, Housing Consultant, said Ms. Tam is also on-line who is from Southern California and has extensive experience with the earlier deadlines for those jurisdictions. She has been helpful in a variety of ways in the North Bay here and can answer any questions. Tonight’s recommendation is to receive the presentation, direct staff, and continue the matter to March 11, 2024.
City Council & Public Art Committee Meeting Page 9 of 28 February 26, 2024 As background, she said on October 23, 2023, the Council endorsed the Housing Element Update revisions made and directed staff to send the revisions to HCD. On November 13, 2023, the Council considered additional information on the income distribution methodology and directed staff to make further revisions to the Housing Element Update and submit it to HCD which was done on December 14th, and staff received a letter from HCD on February 12th, exactly 60 days later.
Regarding key takeaways, this is the first time in a letter from HCD that they have signaled the City is closer to certification. The quote is, “The Element will meet the statutory requirements of State Housing Element law once it has been revised, adopted, submitted, and reviewed by HCD to comply with the above requirements pursuant to Government Code section 65585.” It is very important at this time that the changes noted in the letter are not requests but requirements. The State is very clear that what the City has to do is being required by HCD to do. The City will not be able to receive certification unless the City does them.
When meeting with HCD tomorrow, staff will obtain some additional guidance on some of their comments, specifically what they mean are the concrete actions the City must take to satisfy the comments. Once they receive this information from HCD, they will bring it back to the Council at the beginning of March.
She provided a summary of the overall required changes include:
1. Revise the implementation programs to add specific metrics, geographic targeting, or specific commitments, and what actions the City will take if those metrics are not met. Some of these include monitoring the so-called missing middle actions including faith-based organizations and other actions to address mobility concerns. So, adding an action in the middle of the cycle to say, we will look and see how they have done. If they have not gotten to where they think they will, then what will they do to change it to facilitate further development;
2. A further explanation and status of pipeline projects, the redevelopment of small sites, and the criteria against which sites were measured for suitability in the inventory; and
3. Additional narrative discussing how the City’s suite of AFFH actions will address mobility opportunities since the City is an all-highest resource community, and they want further commitments around the same. For example, metrics of we are targeting “x” number of units for these actions.
In addition to these general changes, there are 5 different aspects that staff is presenting tonight but will not be discussing them, per se, but can answer questions about them, but that the Council will need to give direction on when they come back to meet in March. Specifically, they expect to provide recommended actions for the Council to consider.
With respect to the first one which is about lot consolidation, since the City uses a number of sites that would consolidate lots, the State wants the City to commit to establishing certain incentives by a specified date. Staff highlighted the specifically important note in their comment: “These incentives should be significant and include density incentives not limited to State density bonus law.” She does not know exactly what they mean by that, which is one of the things to be asked, but essentially, they want to know if they are supposed to give more density to a developer in order to get them to consolidate lots.
City Council & Public Art Committee Meeting Page 10 of 28 February 26, 2024 Regarding Number 2, publicly owned sites, the program should add discreet timing for assisting with funding and issuing permits and should commit to alternative actions by a specified date if the sites are not developed in the planning period. This is in reference to 949 Moraga; the City’s parking lots. The Council should know the requirements connected with the Surplus Land Act are getting much more stringent. There is a concern the City would have to do a number of discrete actions such as list when the RFP for the site would be submitted, when a developer would be selected, when would any sort of agreements be made, etc. to the point where it might make it very difficult to comply.
The reason this is so important for the Council to consider in here is because the City is counting on that site as part of the inventory. One thing the Council can discuss at the next meeting is that if the City decides not to include it in the inventory but continue to work on developing it, this particular issue may go away.
They would still want to do something like reference it, but it would not be an action item, and they would take it out of the inventory. Right now, she believes there are 22 below market-rate units associated with that site. If they were to take out those 22 units, it would reduce the buffer for the inventory by a very small amount.
Councilmember Anduri asked if the City only had 22 below market on 949 Moraga. Ms. Elrod confirmed.
Councilmember Anduri said he thought the Council set that more than 50%, and Ms. Elrod said it is only at 35 du/acre to begin with.
Ms. Elrod said the third item pertains to local processing and permit procedures. Specifically, if the City has in its ordinance any discretionary triggers or any kind of discretionary language, the State wants it to be removed, such as things, “and it should fit in well with the community.” Ms. Tam is telling jurisdictions they must remove that language from their ordinances, which could be construed as discretionary. She pointed to a highlighted area, “Clarify that complying with objective design standards will be deemed to meet approval findings.” In other words, the City has to be clear it cannot deny a project because it does not fit in, so they want to remove any discretionary language from ordinances pertaining to this one, which all jurisdictions are being asked to do.
Regarding Number 4, this is one that is very difficult for the City to think about. The program should specifically commit to revising heights, setbacks, and upper story setbacks to facilitate achieving maximum densities. Translated, the City must commit to increasing heights and decreasing setbacks. How this works staff will ask HCD for language to include in the program. The State is clear that the City needs to commit to actually increasing heights and commit to doing that and decreasing setbacks.
The last one is allowing the conversion of existing single-family to them houses into 2-4 units, to redevelop them within the existing envelope. from the current program includes a geographic boundary that includes one-quarter mile from the boundaries of the downtown. Staff does not understand about the following clause and needs to ask the State about it: “Also allow the conversion of single-family space for new single-family uses.”
City Council & Public Art Committee Meeting Page 11 of 28 February 26, 2024 This is the third or fourth time this comment has come up from the State, both in writing as well as in conversations. The State has clearly stated it wants to see one-half mile from the downtown and not onequarter mile. There are ways to consider this which staff can bring back. One of those might be to say revise the boundaries to one-half mile from the downtown, pushing it southward exclude the very high fire hazard severity zones. So, aside from getting direction on what they mean by conversion of singlefamily space for new single-family uses, the Council will need to discuss changing the distance. Staff does not believe they will let this one go, considering that they brought it up at least three times.
In terms of timelines and tasks, right now minor revisions are underway, including changesthat are simple enough to clarify either timelines or fixing something caught in error. Tomorrow, staff will receive clarification on various items, will bring back the discussion items noted on March 11th, and then after that they will finalize documents for the Council’s final approval and re-submit to HCD following a 7-day review period. They may be able to have some back and forth with HCD for technical revisions, but they do not think necessarily that they will have to go back for yet another 60 days. They are hopeful that when they meet with HCD tomorrow, they will engage with them because this has not occurred until now.
Ms. Elrod said staff’s request is to receive this presentation, continue the matter to March 11th, direct staff to continue with the minor revisions to the Element and appendices, and prepare an analysis and recommendations on the five areas she outlined for Council consideration.
Councilmember Anduri asked and confirmed staff would be meeting with Joanna Chang, the City’s new reviewer, and Paul McDougal, who is the head of the unit.
Councilmember Anduri asked if it would be helpful to have a special Council meeting next Monday to brief the Council on that conversation. He would like to know as soon as possible what was learned from HCD.
He does not think they would need a staff report and have a single-item meeting for the Council to be briefed.
Mr. Wolff said he does not know staff would be prepared a week from today following tomorrow’s meeting to provide substantive analysis and recommendations because the staff report would need to be prepared in advance. He heard there may not be a need for a staff report; however, if there is discussion and policy direction, staff would want to have that analysis ready to present. He thinks they could have a largely one-way delivery of information of what they heard from HCD which would be informative to the Council. They would need the extra few days to have the staff report done for the March 11th meeting.
So, possibly an informational email could go out to the Council which can also be posted to the website in advance of what staff heard HCD say.
Councilmember Anduri said he is happy to hear staff say they do not understand what they are saying on some of these things. He put question marks by them and he is glad everyone is in the dark about these and that staff will learn more after tomorrow.
Councilmember McCormick said he is new to HCD language, but questions the basic premise that they are thinking they are getting ‘closer’ just after having solved a few problems. When he read the letter, there was a particular line, “As noted above, the Element does not include a complete site analysis. Therefore, the adequacy of the sites and zoning were not established.” This worries him. This line says to him that there is another level of analysis that will come out that could change the current sites.
City Council & Public Art Committee Meeting Page 12 of 28 February 26, 2024 Ms. Elrod said a lot of this happens to be boiler plate. It is in every letter that if a City has not completed it. In consultation with Veronica Tam, both she and Ms. Tam agree, with the exception of the five items that are pain points for the City, the rest of them are very minor to do. They are technical changes that need to be made.
Councilmember Anduri referred to that very same line and said to him, it appeared that came out of a form letter. “As noted above” and he could not find it noted anywhere above. Ms. Elrod stated it is from a prior letter which was just copied and pasted into the letter.
Councilmember Kwok said there is one section that talks about the City being the highest resource categories and disparities of access to opportunities, wholly concentrated area of affluence, predominantly consistent households with the highest median income in stark contrast to the rest of the region. It states, “Have you done enough to promote housing, mobility, and increased housing choices and affordability throughout the City, but especially in lower density neighborhoods.” This seems to suggest the idea of changing zoning more than in the downtown core.
Ms. Elrod said she does not necessarily agree with that. They had six different actions that they discussed with HCD about how to increase opportunities outside the downtown in lower density areas. Those six items when they had a conversation with Paul McDougal about them, he said, yes, these look good. If you can reach 150 units total between the six items, that should meet the mark. So, it is unclear when it somehow was not clear to them how the City structured where they put those mobility actions or did they pull them out. They wanted the City to add more metrics as well, but the pre-amble language is language that is also boilerplate because this is what they say every single time.
Councilmember Kwok asked and confirmed if it is the language he just read. His question would be for Ms. Tam in Southern California was, when she has seen this language used, what were the type of solutions or what is HCD really looking for when this is said.
Ms. Elrod said before calling on Ms. Tam, the six items they had, including 2-4 units within an existing single-family zone, upzoning from 17 to 20 acres, the du/acre in the D-1 areas, the FBO’s—all those actions were consistent with what they wanted to see last July. So, it is not clear if they have missed that because they have a new reviewer, but this is something they will talk about tomorrow—the six items. The previous reviewer said they were consistent last year and they will ask if there is something they missed.
Councilmember Anduri asked what it means to “promote housing mobility” in this context. Ms. Elrod said it means to provide housing that is not for above moderate income in above moderate-income neighborhoods. It is to provide units that are smaller by design, increasing density from low density to slightly higher so the City gets a product that is so-called missing middle. Those are the things HCD is looking for. Also, allowing people to move into neighborhoods that are the highest opportunity, high income neighborhoods who may not be high income themselves.
Councilmember Anduri said even though the entire City is a high resource, so you have higher resource areas within the high resource. Ms. Elrod said they specifically requested in lower density neighborhoods.
City Council & Public Art Committee Meeting Page 13 of 28 February 26, 2024 Councilmember Anduri asked if other cities are being asked the same thing, and Ms. Elrod confirmed and said Danville was asked this, Belmont was asked this, San Mateo, and there are different situations.
Danville actually did the rezoning as part of its adoption so they created opportunities during adoption which Lafayette has not done yet.
Veronica Tam, Veronica Tam Associates, said she thinks the mobility issue is probably the most difficult for many communities similar to Lafayette. In Southern California, between working with some pretty high-end communities, currently Beverly Hills, she thinks they are 99.9% there. What they ended up having to do is similar to what Santa Monica had to do to allow for more ADUs, more proactively promote ADUs, and this is how Beverly Hills got their certification in addressing mobility issues. She has other relatively small communities also considered high-end too such as the City of Westlake Village and the City of Bradbury.
These are communities quite similar to Lafayette and even smaller. Bradbury has a population of only 800. So, the mobility is creating more housing choices in lower density neighborhoods. Because the City is highest resource, within those areas, there is still higher income neighborhoods and lower density, and this is what the Council would have to address in housing choices—how to facilitate having people that may be low or moderate income with the ability to move into smaller units, ADUs, and making ADUs available for rent. These are some of the actions Ms. Elrod and staff are working on to detail how to address it. But certainly, that is a very, very consistent ask from HCD. Other more affluent communities she has worked with facing the same issue from HCD would be Marin County, San Ramon who had to commit to upzoning their medium density neighborhoods and not necessarily their lower density neighborhoods from 12 to 15 du/acre. In Marin County, they had to do some additional mobility actions, as well.
Councilmember Anduri said it is fascinating Ms. Tam mentions that one of the solutions for Beverly Hills is more ADUs. He does not know if Ms. Tam is familiar with the ADU situation in Lafayette, but he asked what more the City could do with respect to ADUs. This is sort of an area where the City is really trying to push the envelope, including a specific staff person within the Planning Department being the ADUs czar to promote ADUs. In looking at the letters that are going to HCD from housing groups, they are saying Lafayette should not be allowed to claim 27 ADUs per year, so there is this conflict going on.
Ms. Elrod said she wanted to mention they have an additional JADU action within the mobility to allow for lower income. The problem with projecting ADUs, unless the City is committing money to building ADUs, they can only go by what they are actually producing at the present time. They are not able to project more than that unless the City had an incredible program that would fund ADUs for lower income households. This is not a program the City has. Also, Beverly Hills has its own problems that are very different than Lafayette, so she does not want the Council to conflate the two.
Ms. Tam said she thinks there are two different things about ADUs. It is one thing you cannot count more than your trend for the purpose of adequate sites requirement under RHNA. This is a totally different matter. With the mobility issues, you actually can project more units of ADUs by being more aggressive in program actions. So, the two are separate topics. For calculating how many sites the City has for RHNA and how much the City can get credits for the RHNA, they can only base on trend.
City Council & Public Art Committee Meeting Page 14 of 28 February 26, 2024 But, for addressing mobility issues the City can be more aggressive in the program actions. What Beverly Hills and Santa Monica does is that whatever State law allows in terms of the numbers of units on site, they will allow one more. So, there can be one more separate attached or detached ADUs or allow for two JADUs. So, the total number of units on a single-family lot, assuming they can meet all of the standards prescribed by State law, they can allow one more unit IF they deed restrict the one extra unit as rental housing, not necessarily affordable housing, assuming rental housing in a community like Beverly Hills or Santa Monica would be more affordable in general. So, this is what those two communities are doing.
Councilmember McCormick said on the response letter, they are talking about programs. He was looking at other approved Housing Elements around the Bay Area and there is a lot of time spent on programs where there are pages per program. The City’s programs are discussed in an excel spreadsheet. He asked if staff is surprised at this. It seems they are asking for trouble. When talking about programs, we give 20 words on it and he asked if they need a different structure to talk about programs.
Ms. Elrod said no, she did not think so because there are so many programs. As long as the program has what your quantified objective is, what the target area is, what is the number of units, and when they are completed by, this is what they want to know. Many jurisdictions like San Mateo’s have a very large spreadsheet similar to Lafayette’s. Danville has one like Lafayette’s. Many of them are pretty straightforward. The City does not need to overwhelm them with verbiage because they are not going to read it first and secondly, they want to say this is what we are going to do, how we are going to do it and when they are going to do it.
What they have asked them in the programs is clarifications of existing programs. They have not said your programs are all wrong, you don’t have enough information in them, unless it is missing a metric or geographic area. This is very minor to what they have been asking for from before.
Mayor Dawson commented that she thinks it is an implementation plan so when looking at it that way, she thinks the way it is presented is actually effective.
Councilmember Candell asked to explain the HCD comment about the FAR for the non-vacant sites.
Ms. Elrod said this is when they are in their inventory they have a series of criteria against how each site is going to be measured in terms of its feasibility for redevelopment. They have set up something like tear sheets which is an attachment to Appendix C that goes through each site and it illuminates what those items are. What the City has been asked to provide which they have, but it has not been clear enough is, why did they pick this particular FAR which at the time was .6 as the threshold, and anything under that is ideally developable. They have since gone back and redone some of the metrics and it now will be moved downwards to .5. Anything less than .5 FAR is one criterion out of several for a site that has a good possibility of being redeveloped along with other things, and the reason is because they give examples of 15 different sites, what they were before they were redeveloped, and what they are now. So, the average has been .3 but any site less than .5 FAR are being redeveloped at 3 or 4 times what the existing FAR is.
Examples are OUTDO, Inc., the Mill at Brown Avenue, Hough Avenue, which all started out as a low FAR and are being rebuilt as much higher FARs, showing there is clearly an interest in picking up sites with a sea of parking around it to be redeveloped. So, staff will add more verbiage into that language that explains that in more explicit detail which they did not have.
City Council & Public Art Committee Meeting Page 15 of 28 February 26, 2024 Councilmember Candell referred to getting this information on the non-vacant sites which Ms. Elrod said is easy. She is surprised with this comment because the information HCD is asking to provide to prove that a site is able to be developed or not, the list is very long that the City must provide them.
Ms. Elrod said the City has already provided that. They have seen the spreadsheets but they just wanted an explanation of how they came to the threshold of .6 which they will put at .5, which is more conservative and makes more sense. That is the only issue on the site analysis they have asked the City about. They are asking for anything that might potentially be a constraint to future development, which they list on each one of the individual sites’ tear sheets. If a site either has a vacant use or is vacant land, this means they do not need to meet any further criteria. If it has a developer who is interested, the City does not have to prove anything more. Then, they have low FAR similar to a site that has been redeveloped, which they have a lot of, age of the structure which is more than 30 years old or at the end of its cycle and will not meet ADA, and improvement to land value where under the State’s criterion is anything less than 1.0 is considered developable where the land is worth more than the property it is on it. If the City meets enough of those criteria, then the site is available for redevelopment.
With respect to leases, the only issues they have had with leases had to do with the City Hall building and any other place where they provide information that the leases are a month-to-month. So, the lease in and of itself is not the only predictor of whether or not a site is or is not re-developable. So, the City must show all criteria that goes into demonstrating it is re=developable within the 8-year period.
Councilmember Candell noted this is a question brought up at the last November meeting, and she asked why does the City still use its RHNA allocation for sites, the percentage distribution, instead of all other cities that identify them as an affordable project or not. She knows Danville started out like Lafayette’s, but HCD struck it down.
Ms. Elrod said it has not been stricken down. It has been slightly modified to address a few sites which Ms. Tam can discuss. San Mateo also remained in the same distribution except for a couple of sites that had to be tweaked because the developer did not want to do as many units on the site at the income mix the City had. So, those things are roughly the same and she feels strongly the City has demonstrated very well the rationale for doing this is a solid rationale that was accepted and approved by the State to ensure the risk of any single site, if all very low income but it is all above moderate, that they do not instantly have to go into no net loss. This is why they use that. There has been no discussion in any HCD letter about doubts that this is a good way to do it or there is a problem with it.
Councilmember Candell said, however, they can use the other way if they choose to.
Ms. Elrod said she believes that issue was already adjudicated by the Council when they met in November.
Councilmember Candell said she understands that, but when you have almost half the cities using that other method and HCD allows it, and the Beverly Hills lawsuit proves that it stands up in court that cities can use it, she thinks it is completely viable. If the City changes very few units into that model and bump, especially on vacant sites, they can hit that 50% threshold where over 50% of housing will be on vacant sites. This makes all the justification for all of the opportunity sites which get drastically reduced or almost eliminated. So, the City is really close to that 50% number now that they have DeSilva and Bruzzone’s vacant parcels. She asked if they could just add a couple of units to those sites and exceed the 50% margin to get this through the goalpost. She asked if this is a valid method for the City to pursue.
City Council & Public Art Committee Meeting Page 16 of 28 February 26, 2024 Mr. Wolff said they can broach that with HCD tomorrow—that other cities have allocated substantially larger percentages on fewer sites and this too comes with risks. The City is familiar with the lawsuit mentioned, and there is nothing in State law that prohibits that, but he thinks there are arguments to be made against that as well that have not been adjudicated or tested by a court of law which the City is sensitive to. They will broach that with HCD and see if that is a feasible approach and if it is, the Council will be alerted.
Ms. Elrod said she wanted to mention that they are trying to not go backwards, and this will be going backwards. It is enough units to go back and revisit this issue which the Council discussed at length is problematic. For the same reasons they brought up before why changing this midstream now is a mistake.
Councilmember Anduri referred to the second paragraph under “suitability of non-vacant sites” on page 2 and asked if they are inviting the City to hit the 50% so they do not have to provide all of this.
Councilmember McCormick said he echoed Councilmember Candell’s comments, saying he thinks they are basically announcing they want the City to do this. Ms. Elrod said it is boilerplate and has been in every single letter for every jurisdiction who uses any sites that are already non-vacant, no matter how many, will get this comment. It is not specific to Lafayette in her opinion and based upon all of the other letters she has seen.
Councilmember Anduri asked if Ms. Elrod thinks it is worth raising this in the meeting just to see what happens.
Ms. Tam interjected and said she agrees with Ms. Elrod that going backwards will waste more time and also the fact that they are very close to getting the sites inventory cleared by the State. Regarding the 50% vacant versus non-vacant, this will be on her panel for the APA Conference in September, is that State law says that if you meet more than half of your lower income RHNA with non-vacant sites, you will be subject to a higher standard of feasibility analysis. This is absolutely in the law. However, there is nothing in the law or in cities’ guidance as to what is the lower standard of feasibility analysis.
Based on her experience working with many Southern California communities, they tried to push it to over 50% of vacant sites. The State actually has no different standard for feasibility analysis on the nonvacant sites even if you meet the 50% because there is no written standard of what is the higher standard, and therefore, there is no written standard on what is a lower standard. Essentially, they are subject to exactly the same standard when utilizing non-vacant sites. The only time that the sites inventory is relatively easy is when you use almost entirely vacant sites. That is where it becomes an easy task, but she has run into that situation many times. At the beginning, they really tried to push the 50% but it ends up that it did not matter because there is no established threshold standard of analysis. This is going to be a topic on her proposed APA conference panel of how to do it better next time.
Councilmember Candell asked for an explanation of why they are still using minimum density instead of realistic capacity for calculating it.
City Council & Public Art Committee Meeting Page 17 of 28 February 26, 2024 Mr. Wolff said this is solely based on what HCD allows cities to use as the metric. He said Ms. Tam spoke about the difference between projecting for RHNA purposes and projecting when doing an incentive program or a program that would incentivize ADUs, for example. Past projects which have utilized State density bonus law have all in recent years used that provision of State law and produced 111% as an average. State law just does not allow the City to use those projects that utilize State density bonus laws so they must go back and use aged projects that do not use State density bonus law and go with a realistic capacity that is acceptable to HCD. So, it is solely based on what HCD will and will not accept, based upon their guidance to the City.
Councilmember Candell asked if HCD commented about the FBOs.
Ms. Elrod said the comment about the FBOs is that they want the City to add to program metrics and a review and revise action that they will do outreach with developers, will do outreach to the communities impacted, so this language is being added.
Councilmember Candell asked if staff is able to fit the work into their schedules. She asked how much of an impact this is now that Renada Robles is not here and they still have to approach this on the City and on staff.
Mr. Wolff said it is a significant effect; however, this is their top priority along with keeping the current applications attended to in a timely fashion. Coming back, they have Diana Elrod who is doing the yeoman’s work to make the changes to bring back, and Veronica Tam is helping with guidance and pulling examples. The impact of the two senior planners leaving and also a technician being released, they are short-staffed but holding it together. They are recruiting for the senior planners now and will interview later this week. So, it is impactful and it will take longer, but he does not think they have much of a choice at this point in the game. To use a football reference, they are in the red zone.
He knows Ms. Elrod and Ms. Tam are very hopeful. He remains hopeful, particularly with HCD’s engagement that with a proper communication and dialogue, they can identify what needs to be done and get it done. But, there are some open-ended questions with the sites inventory. So, he is not seeing an alternative to the path they are currently on.
Councilmember Candell said it has been brought up whether it would be better to hire a firm like PlaceWorks who got Orinda’s and Moraga’s Housing Elements through the goal posts, and are a large staffed company that Lafayette has a relationship with. It is a valid question she thinks they need to be asking themselves and whether that would help.
City Manager Srivatsa said staff can assess that after their meeting with HCD to see the amount of work that needs to go in. Ms. Elrod and Ms. Tam have been working over weekends to complete the analysis so she would recommend assessing this after meeting.
Councilmember Candell returned to the 50% threshold being meaningless. The numbers calculated by the GPAC person was 39 units. The City is 39 units away from getting to that 50% point, and they can do this on their vacant sites by easing up on the RHNA. She did not agree with Danville’s as their allocations have changed substantially since last year in terms of how many they put in the low income and how many they now put in the low income and thinks all they have to do is change that distribution a little bit and get the 39 more units on the sites to hit that 50%.
City Council & Public Art Committee Meeting Page 18 of 28 February 26, 2024 Mr. Wolff said they will have that conversation with HCD and pose that question, see if it is a feasible approach, and what if anything will be different with respect to evidence needed in the record to justify the feasibility of the sites.
Councilmember Candell lastly asked if they have had any builder’s remedy projects come in, and Mr. Wolff said, no.
Councilmember Anduri referred to builder’s remedy and the paragraph that begins on the bottom of page 5 and carries over to the top of page 6. The City is in the situation where they have not adopted a compliant Housing Element within 120 days of the deadline. It states, “Any rezoning to make prior identified sites available” and he asked if this refers to sites that were in the previous cycle that they are carrying over. Ms. Elrod said, yes.
Councilmember Candell said if that is the case, the way he reads this is that HCD will not find the City in compliance until they have rezoned the prior sites before they submit. Ms. Elrod said they would do it simultaneous with adoption. This is the conversation she and the City Attorney were having about this.
Mr. Wolff said this is what State law requires. What HCD has done for other jurisdictions is to review the changes and say, when you adopt this and do the rezoning, you will be found in compliance. They will give the City a green light or path forward to take those actions rather than taking them in the dark with only the hope.
Councilmember McCormick said since discussions have happened, a couple of pipeline projects, namely Lafayette Lane and Madison Park have stopped. In fact, both properties are on the market now. Those have had certain approvals. He is wondering whether that impacts the City at all or can the City potentially add more units to those. In particular, he was confused because Madison Park in the sites inventory says 46 units. They are advertising it right now as saying they are approved for 71 units. So, he asked how this works as a potential opportunity for more units.
Mr. Wolff said the inventory is based on net new units. The City had to back out the existing units.
Whether the status of pipeline projects not moving forward potentially change the inventory, yes it does.
So, this may afford an opportunity to add some additional BMR units into the mix. He has not done that calculation yet, but they can do that as well and ask HCD about it.
Councilmember Candell asked if the Madison Park site is now considered a vacant site because it is demolished. Mr. Wolff said he would argue yes, so he agreed there could be a lot of opportunity there.
Mayor Dawson opened the public comment period.
STELLA WOTHERSPOON said one thing they have heard is the 50% on vacant sites and what it gets you.
One thing she can see in the letter from HCD is that it states that the Council has to make a resolution of adoption that includes findings that it has substantial evidence if not greater than 50% of low-income units are on vacant sites. So, this is more than just will HCD accept this site inventory or not. This is saying what does the City have to abide by in what it has put into its resolution. The question she would ask is if this is any kind of a legal liability to challenges in the future once the City even has a certified as compliant Housing Element.
City Council & Public Art Committee Meeting Page 19 of 28 February 26, 2024 Her other question is, what is the statutory definition of “vacant.” Her recollection is that it is essentially Greenfield, for example a parking lot that is not utilized. Lafayette seems to be very unique to her mind in terms of urbanized jurisdictions in the State in that it has about 11 acres of truly vacant Greenfield land that is in the site inventory right now. This just seems remarkable and something that should definitely be capitalized on if it is true. She asked in the current inventory, what percentage of the lower income units are on vacant sites. She could not find that defined in the Housing Element. There is not much discussion about the vacant versus non-vacant sites. They are all listed in a large table.
Lastly, in the letter from HCD, notable to her with respect to the suitability of non-vacant sites is that they say, “In addition to the FAR, the Element should evaluate the extent existing uses impede additional development, including addressing past public commentors.” What she has seen in looking through public comment is numerous multi-page documents from the attorneys for the Housing Action Coalition that get into very detailed challenges about each site. She thinks this must be reviewed and those challenges should be addressed to some degree or other. It looks like HCD is saying exactly that—address past public commentors.
BOB MCCLAIN said in the letter from HCD on page 4, section 2, it talks that the City needs to clarify that complying with objective design standards will be deemed to meet approval findings. It does not make a distinction between whether it is a new house on a vacant lot or knocking down an existing house and building a new one or doing an addition. It just says, if you meet the design standards it is deemed to meet the findings. He heard Ms. Elrod say the State wants to remove any discretionary language. Again, if there is no discretionary language, the lack of discretionary language would apply equally to a new house on a vacant lot, replacement house, or an addition.
Tonight, there is a project at the DRC for a replacement house that meets all objective criteria, yet it is going through a discretionary process. He was at the meeting at the right time, and staff said they ran it past the City Attorney. The City Attorney said because there is a pre-existing house there, they can apply discretionary rules. So, his confusion is he is hearing the State and consultant say you cannot have discretionary language but the City Attorney is saying, yes you can.
LIBBY HENRY ceded her time to Rob Lavoie.
ROB LAVOIE said he would recommend Robert Brendage’s excellent letter to the City Council on August 16th regarding some of his concerns about HCD’s overreach, asking for things that were specifically excluded from the legislation by the people who enacted the law because of concerns that came up during the legislative process. He is questioning the need for the drastic changes with height and setback reduction to merge half-acre sites when the City has a long list of successful projects under one-half acre.
HCD seems to have blinders when there is a density bonus and they want to ignore those things, but the facts are the facts and projects are producing 120% or more yield on less than one -half acre sites. So, he questions the need for the big increases in gifts to the developers.
He referred to mobility and it seems like if 150 units would make the City compliant on mobility, he thinks they have more than that on SB 9 lot splits, but they certainly have it on ADUs even using their arbitrary low projection method. The City is at 200+ units. If they can use actual projections and logic as a finance person then they will have 300 to 400 units ADUs could produce throughout the community, so that should handle the “missing middle” and the idea of just because you build a small unit in the middle of a single-family area it is going to be affordable in Lafayette is ludicrous.
City Council & Public Art Committee Meeting Page 20 of 28 February 26, 2024 He thinks the City needs to take a second look at the ADUs for meeting that mobility issue and squelch the idea of expanding the bubble around downtown to allow more density. It sounded like HCD was equating the remote areas just because people have higher incomes to more benefits. This is not true because the benefits of transportation, shopping, etc. is in the downtown. As you get into more remote locations there are narrower streets, parking problems, evacuation issues, and so he disagreed with getting additional density beyond ADUs in remote areas which he considers as Lafayette’s semi-rural ambience. It is physical and geological. He has written correspondence on his other comments and will not take any more time.
CHRIS said he had vowed he was going to avoid the Housing Element but in listening to some of the comments, he wanted to chime in. Danville did not make small tweaks to their allocation. In August of 2022, they had 47% low allocated to eligible sites. In December of 2022, it was 58%. In January 2023, it was 71%. These were not small tweaks required by certain sites. It was wholesale changes across all eligible sites, and he does not know why Ms. Elrod is stating differently because this is a City where she was the consultant. Not only did Danville shift, but they also reduced the zoning. They used to have 40 du/acre and were able to reduce it to 35 du/acre. He is not arguing for less density. He is just stating the facts.
On another topic, as consultants seem to be fearing the no net loss as the “big boogie man” they might want to pay attention to the point that HCD raised with regards to FBO’s. They say, “The element should evaluate the effectiveness of this program midway through the planning period and commit to alternative actions, e.g. rezoning, identifying additional sites by a specified date if necessary.” Everybody knows they will have zero of these units built at an of these FBO’s. At least two or three have stated they do not want the upzoning, and he has spoken to a few of the FBO’s, and they want to build a single unit for a pastor.
There will not be 88% minimum density of the upzoned amount, so the City will be facing no net loss once HCD has the City perform its mid-year review and the city has zero units to show for it in FBO’s.
MAX HENINGER, Board Member, Inclusive Lafayette, referred to HCD’s comment about the conversion of single-family to 2-4 units, they call out “new single-family uses.” Staff would be able to provide more direction on what they mean by that after meeting with HCD, but it sounds to him they are suggesting this program apply to new construction which they stated in a previous letter would make it quite a bit more impactful allowing for single-family conversions next to the downtown. Secondly, regarding 949 Moraga Road and the comment about whether or not to keep it in the sites inventory, he thinks that site is probably the best option the City has to create deeply affordable housing in the community in this cycle as a City-owned site. While there might be good reasons to take it out of the sites inventory around the requirements of public land and surplus lands act, not having the accountability of having it in the sites inventory would be very concerning.
Lastly, he highlighted the risk of going small in the next turn of comments and trying to do as little as possible and have as little change as possible. He thinks the fact that this is the third round of comments suggests HCD wants the City to make a bold commitment to further affordable housing, whether it is allowing more missing middle housing, applying new construction, or other recommendations that were in the East Bay For Everyone or Inclusive Lafayette letters, he encouraged the Council to review those.
Even though there has not been a builder’s remedy project yet, the longer it goes on, the longer that could happen, the more it drains the limited staff time to focus everything on the Housing Element. So, he hopes the City will take the invitation from HCD with a third comment letter to go big on this round.
City Council & Public Art Committee Meeting Page 21 of 28 February 26, 2024 Mayor Dawson noted that she appreciates the fact staff had been very consistent in reaching out to HCD during the review period and that they had not heard from HCD until they were at the 60-day mark and got the letter. Now, they are able to come back and staff has scheduled the meeting very quickly. She has heard in a communication exchange with Supervisor Andersen that they also went back and forth quite a few times with HCD which is critical. So, this is very important and she appreciates staff will go back with more detailed questions and taking the Council’s input as well as public comments back to them for more clarification.
Councilmember Candell asked if staff could answer some of the questions posed.
Mayor Dawson referred to questions and the comment by Stella Wotherspoon on the 50% on vacant sites allocation. She asked if the City was opening itself to maybe legal liability and challenges to this.
City Attorney Mala Subramanian said there is a requirement to make those substantial evidence findings if they use non-vacant sites that exceed 50%. So, there are two issues. Veronica Tam said even if the City did not use an excessive 50%. HCD is not changing the standard, but then separately, if the City were sued, this is a standard that has to be met. There are two different arbitrators that are requiring the standard.
Either way, you have HCD which may look at the substantial evidence findings a little differently than a court. So, there is a potential risk and it is hard to assess what that would be.
Councilmember Candell asked if the City has less legal risk if they have more than 50%.
Ms. Subramanian said in theory the City would not need to make the findings for a court, but as the Council heard from Veronica Tam, it sounds like HCD is still requiring that information regardless.
Mayor Dawson asked what is the statutory definition of a vacant lot.
Ms. Elrod said a vacant lot does not have any structure on it and it is not parking but Greenfield.
Mayor Dawson said a question was what percentage of low-income units are on vacant sites. This is a collective question, and she asked if Ms. Elrod knew the amount.
Ms. Elrod said she does not know and would have to go back and provide that information later.
Mayor Dawson said Bob McClain had a question that came out of an existing project before the DRC. If there is an existing house, it sounds like you can apply discretionary standards. She asked if that is what is policy now or not.
Ms. Subramanian explained that for a single-family home with no ADU the City can continue to utilize their existing subjective design review standards. Depending on the project brought forward, they may not be able to use subjective design review standards, but what the DRC is hearing tonight is a singlefamily home with no ADU. She will also note the City is not able to adopt new design review standards that are subjective.
City Council & Public Art Committee Meeting Page 22 of 28 February 26, 2024 Ms. Tam further explained that the language she would prefer to use is what the City is asking for. You can have discretionary review but it needs to be based on objective standards; where there are some kind of performance standards you use to evaluate the project. What they are asking in the comment letter is that you remove “subjective” criteria. There is no way to evaluate subjective findings. Someone would just say that they do not like it and then the City can deny the project based upon not just liking it. But, the City can still continue to have discretionary review, continue to have design review, but only based on objective criteria, performance standards, and anything relating to neighborhood character detrimental to property values. These are the things that HCD prefers the City remove.
So far, during the 4th through 6th cycle Housing Element, all the way from the San Diego region and now the Bay Area, their company has worked on more than 60 Housing Elements and got them all certified.
Every single one must remove subjective findings in the discretionary review process. So, it is not they cannot have discretionary review, but they need to remove the subjective findings codified in the zoning codes.
Councilmember Anduri said a number of cities such as Santa Cruz as one has adopted objective design standards for multi-family buildings that are, in effect, 20- to 30-page pamphlets that show examples of what will be acceptable. He asked if that kind of objective design standard still valid and something HCD will accept.
Ms. Tam confirmed and said typically, the way they write the commitments in the Housing Element is you will remove the subjective findings. You can still have objective findings in the City’s discretionary review that would provide for “certainty and outcomes.” When people meet certain standards and they are objective, even though the City may be going through discretionary review, if they meet the objective standards they will know whether they get approved or not. But, if they do not meet it, they do not get approved. You can still continue to use objective design standards. In fact, most communities are switching to that, but maybe larger projects or mixed-use projects, the City can go through some discretionary process but still have objective findings in the process.
Councilmember Anduri said what concerns him, and he looked in detail at Santa Cruz’s and a couple of others, now the City has this request that they basically do away with step backs. He asked if these are in conflict and he asked if it is possible for the City to adopt objective standards that provide for upper floor step backs, or does this letter indicate they could not do that.
Ms. Tam said she does not think this is what the letter is saying. She believes the letter is talking about whether the height provided for has the ability to accommodate the density you are anticipating. It may be that through the step back the City has not convinced the developer that the height allows for a developer to maximize the density because of the step back. It does not mean you cannot have it. You can continue to have it except you need to demonstrate the height limit allows for the achievement of allowable density.
Mayor Dawson said this is a point that came up at Program 8.2; Specifically commit to revising height, setbacks, and upper story setbacks to facilitate achieving maximum densities.” She asked if you allow density bonuses, it is to accommodate achieving whatever density. Separate from that is in the City’s standards themselves, they will make an accommodation. This means having an out-parameter number of what the maximum height is in the area. Ms. Tam confirmed.
City Council & Public Art Committee Meeting Page 23 of 28 February 26, 2024 Councilmember Candell said Mr. McClain’s question is whether this is on residential properties or downtown properties or is it broader. The City has objective standards and for the downtown. She asked if they will need to develop objective standards for all residential projects.
Mr. Wolff said all residential zones have existing objective standards in the form of setbacks and height limits, and State law would not allow for the creation of new unless the City upzoned elsewhere and found that reduction. He has not heard the desire on the part of the Planning Commission or the City Council to adopt new objective standards for single-family, but he thinks that is a feasible outcome if this is the policy direction.
Mayor Dawson said she believes this answers Rob Lavoie’s question about that.
Councilmember McCormick said there was one question about the FBOs and the fact they have had letters from at least two owners saying they did not want to upzone and/or they would not participate. He asked if this is a concern or he asked if they could still use the sites.
Ms. Elrod said it is of concern. They have reached out to the one church that wrote to the City and they have not written back, requesting time to meet with the parishioners and the church leaders to talk about this. There has been a lot of misinformation going around in the form of a flyer that says things that are not accurate; the option to do whatever the FBO wants to do is still up to them, the same as any other opportunity site. It will not change their ability to do whatever they want to do. It is an opportunity for them if they want to. The City has 2 FBOs who wrote in support of SB 4 and they reached out to all FBOs but she does not believe the City has received responses except for one.
Councilmember McCormick said he knows the letter just commented about education and outreach which may be what the City does if they have that plan. Ms. Elrod agreed and said this is what they are doing already and what they codified in the implementation plan.
Councilmember Anduri said if they get to the mid-term and there are no units developed on FBOs and no applications, he asked what is the consequence.
Ms. Elrod said it is the same as it would be for any opportunity site. If the City’s projections do not meet what they predict, such as with ADUs, the City must either go back and revise the number if they fall short in the inventory, rezone or upzone some places to accommodate more units, or find new sites. By that time, halfway through the cycle, there are many actions that must happen so HCD also wants the City to monitor it as well as the RHNA allocation as well as ADUs.
Councilmember Anduri said he is still troubled by page 5 under Goals, Priorities, Actions and Milestones, the language for the AFFH which states, “As a result, the Element should include a significant and robust suite of actions to promote housing mobility and increasing housing choices and affordability throughout the City but especially in lower density neighborhoods.” The Council talked about that a little bit, but he truly does not understand that. In Lafayette, where they are planning to put the housing is where all resources are located. People can walk to 12 years of public education, there is the library, churches, BART, and it is all walkable. He asked why would HCD want to put more housing out in farther areas and why wouldn’t they at least exclude the very high fire hazard severity zones, which they do in one case but they do not do in this case.
City Council & Public Art Committee Meeting Page 24 of 28 February 26, 2024 Ms. Elrod said these are valid points. In fact, what HCD goes by is the tax credit allocation committee’s standards for highest resource areas. All of Lafayette is a highest opportunity area. That does not necessarily mean you can walk to a grocery store down Burton Valley. This is not what they are after. It is that people have access to various things. It is not just a grocery store down the street. This is not the standard HCD is using for AFFH. So, when they went to HCD with the robust suite of actions, they asked if this “does it.” They were under the understanding that it would between the FBOs, where there are JADUs throughout the community and not necessarily downtown, etc. Only one is geographically targeted at the downtown at this point. Staff believes those met the requirements, but she understands the concern, but the way the law is written and the way the analytics that HCD uses it puts all of Lafayette as highest resource and highest opportunity area.
Councilmember Anduri asked that when staff meets with HCD tomorrow to make the point that it makes no sense.
Ms. Elrod said staff has made that point before many times and they will do it again, and Councilmember Anduri asked at least on the very high fire severity zones, and Ms. Elrod said they agree.
Councilmember Anduri said he believes it is true that Lafayette has never denied an application for multifamily housing at least in the last 20 years. He is wondering how HCD interprets the fact that they have approved Miramar, Madison Park, the 9 or 11 units at Second and Mt. Diablo Boulevard, approved the Samantha Townhouses, and approved the development on Mt. Diablo Boulevard and all of those are now on the market and are not going to be built. He asked what that says about the ability to get housing done. He thinks the City has done everything it can, but the units are not just being built. He asked what more could the City do and he asked what HCD expects to get a sense of what is happening here.
Mr. Wolff said he thinks the State, to a large degree, understands the multitude of factors that bear on the cost, production, and availability of housing, and recently staff attended the Turner Center at UC Berkeley webinar on the cost of housing and what it costs to produce. The takeaways for the City were no different than this conversation wherein they participated with Assemblymember Grayson’s panel roundtable on development fees 3 to 4 years ago.
The State has oversight over local jurisdictions and State law can mandate a multitude of requirements on local jurisdictions with respect to housing policy, density, etc. They have taken certain steps which pre-empt local control like SB 9 and ADU law, and to the degree those are clear and implementable, the City will always comply with State law. To the degree other things are amorphous and not clear, that is very challenging. He thinks the discussion tonight surrounds that.
So, the State has jurisdiction over local cities and counties, but does not control or have jurisdiction over the cost of land, the cost of labor, the cost of building materials, and those are cited as the biggest factors.
The ones they can move the needle on arguably are around a city’s ability to impose impact fees, which are established under AB 1600 which is the State statute, and timelines, certainty, the City’s ability to have any discretion about a project creating new units, etc.
City Council & Public Art Committee Meeting Page 25 of 28 February 26, 2024 Interest rates are a very big factor but not under the State control. What the State sees, and this is his opinion or understanding of the State’s actions is they will act where they have the ability to move the needle, and there is not necessarily a lot that can be done for those other factors. To some degree, regulation around other good policy matters, whether it is energy efficiency or waste diversion, or other things, those are all incremental costs to comply with housing. But, largely, they are borne by local jurisdictions and not the State. He thinks that is what they can influence and do.
Councilmember Anduri said in the last 8-year cycle, he asked if the City has statistics that show final numbers of how the City did in terms of satisfying the very low- and low-income categories and how that compares to neighboring cities.
Councilmember Candell stated she has a spreadsheet she can send the Council which has a pivot table in it that has all jurisdictions in the State. The Council can look up any of them. Councilmember Anduri asked if she recalled what the percentage is for Lafayette for very-low and low income. Councilmember Candell said the City had almost no very-low and low-income and they had a lot of moderate income, and a ton of above market rate. So, they nailed the moderate category and got a better grade than any other city in Contra Costa, but it was two different things. She has not looked at neighboring cities that closely.
Councilmember Anduri said he would like to see specifics, and Councilmember Candell agreed to pass on the spreadsheet.
Councilmember Candell referred back to the mobility and ADUs, it sounds like the City can use the different projection methods. So, when they put the ADUs into the housing opportunity sites, it is one number but for the mobility aspect they can use more realistic numbers. She asked if staff can ask HCD about using that, and Mr. Wolff agreed.
Councilmember Candell said this is so frustrating and there are groups out there that will try to get the total cost of this cycle on cities as an unfunded mandate. Right now, the State has paid back about $1 billion in grants but they are saying the total cost to cities is about $3 billion. This is crazy and the cities could have spent this on affordable housing. After the meeting tomorrow with HCD, she knows other cities almost have had a couple of different Housing Elements come out and trying different things and overlapping. The City has been doing them all serially. Some other cities have put in multiple revisions just to see if one of them sticks, so she asked if this is an option for the City moving forward to get this under control and throw everything they have at it and get it done. She asked if there are other things they can think outside the box to get this over the finish line.
Mr. Wolff said he is not familiar with the “scatter shot approach” of having multiple versions of a Housing Element submitted or under consideration at the same time, but staff can do some research on that. He does not know if that would be a beneficial approach here. Fully understanding what HCD needs the City to do is first and foremost and there may be multiple ways to accomplish a given requirement. Staff will give Councilmember Candell’s question more thought and based upon what is heard from them tomorrow, staff will continue to be creative in the solutions or options they will present to the Council to consider.
Councilmember Candell said lastly, on the 50% number, she thinks the City has some legal liability because they have received letters from attorneys pointing this out. She asked if there is any way to avoid that extra legal liability, they ought to pursue that 50% number.
City Council & Public Art Committee Meeting Page 26 of 28 February 26, 2024 Mayor Dawson said it sounds like staff has received a lot of feedback and knows there is work to be followed up on. She understands that based on resources, the approach for multiple things might be tough right now, but the Council will consider the recommendations after staff has held the meeting with HCD.
City Attorney Subramanian said as Mr. Wolff mentioned, staff could prepare notes and push that out publicly on the website, as well as to the Council so it is available.
Councilmember Anduri asked if it would be more time effective for staff is they have a special meeting some night next Monday possibly where staff could indicate what happened and then it would be available on U-Tube so people could view it so staff would not have to go through a lot of effort writing things out. He had proposed Monday, but he wondered if Thursday night could work where staff could provide information this week so they could be aware of it, raise questions, but not expect staff to have done a full analysis.
Mr. Wolff said reporting out Monday would be the best option given this room would be available. The Planning Commission meeting will be canceled for that night, so that is an opportunity for the Council to meet again if this is the desire. Staff can verbally report out rather than doing a comprehensive report and it would allow for questions and dialogue.
Councilmember McCormick asked how long the meeting is with HCD given the topics discussed tonight.
Ms. Elrod stated they will be available for 45 minutes. Councilmember McCormick said this is not a lot of time and he hoped to get a prioritized list of what staff wants to cover.
Mayor Dawson said she hopes it is an iterative process and one of a few more meetings with HCD. She asked for a motion.
Vice Mayor Kwok said he is not available on Monday for a quorum point of view, and asked if there will be a quorum.
Councilmember Anduri made a motion to continue the meeting to March 4, 2024 at 7:00 p.m.
City Manager Srivatsa stated the City Attorney will not be available that evening, and Vice Mayor Kwok.
She is not sure how much substance of the feedback received tomorrow will suffice for a meeting. She recommended staff type up the comments and distribute it to the Council and public, and they will work with the Mayor. If they feel there is enough to justify a meeting on Monday, staff will do so. If the meeting opens up a series of other questions and maybe another meeting with HCD, staff may want to wait. So, the Council could consider continuing it to next Monday but if staff does not have that meeting, they would bring it back, given it is a public meeting.
Councilmember Anduri withdrew his motion, and said he will leave it to the City Manager and Mayor if they think it is useful to have the special meeting on Monday. Otherwise, the Council will meet on March 11th.
Mayor Dawson said if they do not have a special meeting, she confirmed staff will send out the notes from the HCD meeting. She thanked Veronica Tam for her assistance.
City Council & Public Art Committee Meeting Page 27 of 28 February 26, 2024 ACTION: It was M/S/C (Anduri/McCormick) to continue the matter to March 11, 2024. Roll Call Vote: 5-0 (Ayes: Anduri, Candell, Kwok, McCormick, and Dawson; Noes: None).
17. STAFF REPORTS – None.
18. PUBLIC HEARINGS – None.
19. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Councilmember McCormick reported on his attendance to the Contra Costa County Solid Waste Disposal Board meeting. He is also on the Legislative Committee following Councilmember Gerringer’s retirement.
He also attended the first Code of Appeals Board meeting the City has held in 5 years. This was illuminating and went off well. The Board members were excellent and it was resolved to the City’s satisfaction.
Mayor Dawson said she will be serving as Vice Chair for the Recycle Smart Board given Councilmember Gerringer’s retirement, and the group is very welcoming of Councilmember McCormick with his commercial interest background.
Councilmember Candell reported that at the end of the last meeting, there was talk about the appointment process and the Council was hearing from people that they hoped the Council would change it in that they should always have a second meeting unless there was a unanimous vote. She asked if this is something the Council would like to consider. There were members of the community that were hoping they would always take the top 1 or 2 candidates to a second interview.
Mayor Dawson said they followed the City’s policy and there was a unanimous vote on this particular process and candidate.
Councilmember Anduri noted that they explicitly set the second date as a contingent date. In terms of public expectation, it appears that some members of the public thought the Council was going to have 2 meetings, but they never said that.
Councilmember Candell likened it more as a desire to hold two meetings because other agencies do that.
Mayor Dawson said she was not sure this is necessary to reconsider or bring back. It was incidental to that particular meeting, and if it was a different outcome from the summary commentary, they would have had that second meeting because it is built in. And, she is not sure it is a democratic process to say it must be a unanimous vote as well.
Vice Mayor Kwok said he appreciates Councilmember Candell bringing this up given community comments, but thinks predecessors have established a process used on the not too common occasion there has been a vacancy. The process can always be improved but the Council has many important things to focus on and if there were 500 people wanting to change the process because it was broken he would listen, but would not say this rises to the top for reconsideration and added time.
City Council & Public Art Committee Meeting Page 28 of 28 February 26, 2024 Mayor Dawson reported she met with Claudia Luna who is their new PG&E governmental representative.
They had a good discussion and follow-up. Sarah Yoell has been promoted to be the Bay Area representative. Ms. Luna is willing to work with the City, has an operations background and understands where they are coming from as far as safety of the infrastructure as well as programs, so she will be meeting with her.
Councilmember Candell stated she also met with Ms. Luna on Saturday and they went on a walking tour of their exposed pipelines. She is refreshing and is open to doing things a little differently than in the past, and the City may be presented with opportunities to get more transparency into the process they have had before.
Councilmember Anduri asked what are the major items for the next agenda. There was a discussion at the last meeting about Nixle and he cannot remember when the Council will receive an update, given its importance.
Councilmember Candell said she heard something alarming at how expensive every single alert is. They are $5,000. Mayor Dawson said this has been brought up in various venues. She knows the Chief was looking into this.
City Manager Srivatsa said staff has the results of the poll coming to the Council for the March 11th meeting, as well as the Housing Element, no parking on Boyer Circle, and Nixle is a possibility and could be for the second meeting in March. The second meeting in March will include the roundabout, Mt. Diablo capital project in front of Diamond K, speed zones which had been continued, the Housing Element annual report, and there is a PG&E discussion from the Tree Advisory Committee, as well. So, both meetings are fairly full. There is also the goal-setting session on Saturday, March 23rd.
Mayor Dawson noted she will be out the latter half of April.
Vice Mayor Kwok reported on EBMUD discussions about the tower structure. Members of the community in the engineering field have looked at EBMUD’s recommendation to shorten the tower and challenged the findings that the tower must be shortened. They argue the existing height could be retained at a lower cost than is imagined by EBMUD and had written a letter to submit to EBMUD. EBMUD rebutted the findings and said they disagreed and are setting up a meeting next week to discuss their differing views, and afterwards the Council will hear a report of the findings from that.
20. WRITTEN COMMUNICATIONS – None.
21. ADJOURNMENT – 9:50 p.m.
APPROVED:
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Gina M. Dawson, Mayor
ATTEST:
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Joanne Robbins, City Clerk