City Council Meeting Page 1 of 40 July 22, 2024
7 City of Lafayette
City Council Minutes
Lafayette Library and Learning Center – Don Tatzin Community Hall July 22, 2024 3491 Mount Diablo Boulevard, Lafayette, California 7:00 p.m.
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:
1. Watch or Listen: Meetings are broadcast on the City of Lafayette’s YouTube Channel:
http://bit.ly/LoveLafayetteYouTube.
2. Submit Comments Before the Meeting: Members of the public can provide public comment by sending an e-mail to [email protected] for City Council meetings no later than noon the day of the meeting. Those e-mails will be distributed to City Council, the City Manager, and the City Attorney, and will be posted as part of the public record.
3. Live Remote Public Comments: Technology permitting, members of the public may submit live public comment via Zoom conferencing by using the link below. You must download the Zoom app or software. Zoom meetings can be accessed by telephone, computer, or smart device. When the Mayor invites public comment for the item on which you would like to comment, please use the "raise hand" feature (or press *9 if connecting via telephone only) to alert staff you have a public comment to provide. Each speaker is allowed three (3) minutes to speak.
4. At the time and date of the meeting, please click this URL to join the webinar:
https://us02web.zoom.us/j/89008805648?pwd=ODQxRGxzaGNHSWVITUVFalFuUHBIZz09 Passcode: 426199 Or join by phone: Dial 1 669 900 9128
Webinar ID: 890 0880 5648 Passcode: 426199
City Council Meeting Page 2 of 40 July 22, 2024
Vice Mayor Kwok called the Regular City Council meeting to order at 7:00 p.m.
2. ROLL CALL
Present: Vice Mayor Kwok; Councilmembers Anduri, Candell, and McCormick
Absent: Mayor Dawson
Staff Present: Niroop Srivatsa, City Manager; Tracy Robinson, Administrative Services Director; Greg Wolff, Building and Planning Director; Sonia Urzua, Assistant Building and Planning Director: Anna Tolle, Assistant Planner
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 (Anduri/Candell) to adopt the agenda. Vote: 4-0-1 (Ayes: Kwok, Anduri, Candell, and McCormick; Noes: None; Absent: Dawson).
5. PLEDGE OF ALLEGIANCE: Led by Vice Mayor Kwok.
6. PUBLIC COMMENTS (For Items not on the agenda
SILRAY GARCIA, Carpenter’s Union, spoke on the union’s four core values; apprenticeship, fair living wage, medical benefits, and local hire. When the Council is making decisions, he asked to remember local workers and whether they can live on low wages and no benefits. There are many people that would like to work in their community, but because most union jobs are in the City, and they must travel very far.
There are many people traveling from the valley that are not getting paid benefits and working for $20 to $25 per hour and working in communities like this.
JAMES CHERAYIL said he is a resident of Lafayette and retired Caltrans Engineer. He spoke about Caltrans’ pavement maintenance program and thinks the City of Lafayette should provide pavement preventative maintenance for its roads. For the Pleasant Hill Road southbound work, they have softened the pavement and installed concrete curb dividing two lanes which he has never seen before. He thinks it is less expensive putting an asphalt bonded dike into the concrete curb in between the lane because it could be done in one day and about one-fourth the cost.
Councilmember Anduri asked and confirmed Mr. Cherayil has not spoken to Engineering and Public Works staff, and he suggested contacting Mike Moran as the City has a pavement management program.
MIKE HAYES spoke about the need for AI media literacy committee or commission, described his research and its need, development of programs to increase AI literacy for residents, advise the Council on AI related policies and regulations, explore economic opportunities in the AI sector, identify ways to enhance City services using AI, and address ethical considerations.
City Council Meeting Page 3 of 40 July 22, 2024
ERIC WILLIAMS, Springhill Road, said every Saturday and Sunday, a neighbor has rented out their pool and outdoor space to host loud, unsupervised pool parties which are not gatherings of friends and relatives, but an unregulated pool party business that allows up to 100 strangers for outdoor parties. The property is advertised on-line on a website called swimply.com. He said parties are held in their quiet residential neighborhood, with excessive noise, people smoking on a high fire danger street, with alcohol consumption without regulation, and he cited serious safety, health, and fire risk, as well as emergency access in the case of an emergency. He noted Airbnb banned renters from hosting parties and he referred back to the incident in 2019 in Orinda which resulted in five people being killed. He looks forward to working towards a solution to restore peace and safety and one that maintains Lafayette as a community know that will protect their children and their neighborhoods.
Councilmember Candell thanked Mr. Williams for sending information and research done. He will be bringing this up to take on as a future agenda item at the end of the meeting, and she thanked Mr.
Williams.
Councilmember McCormick asked if 100 people attend these parties. Mr. Williams said the listing advertises for up to 100 people and every weekend there are 15-20 cars in the driveway and many people in these parties. He has talked with the owner about this, and they are committed to continuing holding parties.
BONNIE OKAMOTO said her next-door neighbor is renting out his yard and pool for parties of up to 100 guests. The music and noise gets so loud that she sometimes has to make sure that all her doors and windows are closed and then she sits inside on the other side of her house to get some peace and quiet.
Recently, she learned that he advertises on swimply.com to rent out his pool. Swimply provides insurance protection so there is less liability for the owner. She does not know how groups are screened but likely most if not all are not vetted. She is afraid for her safety and her neighborhood from fire risk and a neighbor told her she was in her side yard and heard profane language in front of her house and also smelled cigarette smoke.
She voiced concerns about so many cars and evacuation in an emergency. The owner is also not present during these parties so there will be chaos, theft, or any strangers checking out the neighborhood for future burglaries. She knows alcohol is a given at adult parties, but she asked if anyone was carrying weapons or drugs. She is a widow and lives alone next door and if someone finds her murdered in her house or yard, she asked how the police will be able to track down party-goers for questioning. She texted the owner about her concerns and asked him to stop the business, but he continues to schedule parties.
She counted 17 cars in his parking area at yesterday’s party which could be 17 possible drunk drivers at the end of the night. She had to close her doors and windows, and there are other private pool owners in town who are also advertising as well. She asked that the Council address this and cited numerous dangers.
PAUL MELMED, President of Springhill Valley HOA, said Springhill Valley is an active community with 264 homeowners, Springhill School with 450 students and staff, and a summer school as well. On the west end is the Girl Scout Camp with 15,000 vehicle trips per summer and every week there are 125 different children who come to enjoy the camp. In the middle of that is Swimply.com; a new business in the community which is impacting Springhill.
City Council Meeting Page 4 of 40 July 22, 2024
He gets many complaints throughout the year for different situations but has never received so many as he does for this business. It is a commercial business, goes on every single weekend, and while walking the dog with his wife, they saw many vehicles around 4 p.m. in the afternoon. He knows the Council and staff are very busy, but this is an issue that needs to be tackled as soon as possible, given risks. The homeowners could make $1000 to $2500 every weekend which is what he is doing now, and he voiced opposition to this.
Councilmember Anduri asked how many days the owners have had these parties this summer.
Dr. Melmed said they occur every weekend on Saturdays and Sundays. On the website, it states they are open for parties, and it could occur during the week, as well, but it is up to the homeowner to decide. He assumes for this case it has only been weekends and it has been every weekend.
LISA DISBROW, Coordinator for Patriots of Contra Costa, said since 9-1-1, they have never left a single flag of Black Lives Matter, peace symbols, Jesus Saves, and various signs have been all over their Caltrans fencing in California for months. She said in 2003, this fact has not been mentioned—that the 9th Circuit Court issued a permanent injunction against Caltrans which is being violated. She has the video, the photos, and the life experience that verifies these violations. On May 27th, the overpass was crowded and covered in American flags for Memorial Day. There were no complaints, no Caltrans visit, and no removal.
Four days later on Friday, May 31st, the overpass was covered with American flags which were removed and a violation of the seven violations against their First Amendment rights.
She was told by Caltrans they had received complaints about their flags. People have flags, banners and messages of many points of view on Caltrans fencing. The court’s decision in Brown vs. California DOT clarifies that viewpoint and content discrimination is a violation of the First Amendment. She also has videos of CHP officers that there is no traffic or safety issue which the community likes to imagine. Any traffic problem is the result of driver management of their vehicle. In other words, their free speech since 2024 is only secure if there are no complaints.
Vice Mayor Kwok reminded everyone that the El Curtola Bridge is in Caltrans jurisdiction and not the City.
7. CITY MANAGER’S UPDATE
City Manager Niroop Srivatsa gave the following update on department activities:
• From the Planning Department:
o The tree protection ordinance update is well underway. Staff issued a survey in May and received almost 300 responses, completed stakeholder interviews, and on August 12th, the Planning Commission and City Council will hold a joint meeting to consider policy options before preparing a draft ordinance. All information can be found on the City’s website.
o After more than two years of effort by the City and community, HCD has concluded that the City’s Housing Element will comply with State law after the City completes the necessary rezoning and re-adopts the Housing Element. Staff is preparing the revisions and they hope to take it to the Planning Commission in August and September and thereafter to the City Council.
• From Engineering:
City Council Meeting Page 5 of 40 July 22, 2024
o The raised crosswalk on Pleasant Hill Road at the Springhill free right-turn lane or slip lane will be poured tomorrow. Those living in the area should plan for delays in traffic. Also, starting Wednesday of this week and through all of next week, the City will be doing slurry seals across town. This process will require two-way traffic control on major collector streets and some road closures, as well. All information can be found on the City’s website under construction projects.
• From the Public Art Committee:
o The Committee is now accepting applications for fall exhibits. The opportunity is open to all local artists working in any form of media. The deadline to apply is August 15th.
Vice Mayor Kwok opened the public comment period, and there were no speakers.
8. PRESENTATIONS – None.
9. CONSENT CALENDAR
Vice Mayor Kwok asked and confirmed a public member wished to pull Item 9.B.
A. Minutes – July 8, 2024
Recommendation: Approve.
C. 968 Fourth Street – Request for Construction within the Creek Setback Recommendation: Approve the request for a creek setback exception at 968 Fourth Street and authorize the City Manager to execute the required standard agreement with the property owner.
D. Fee for Lafayette Little League’s use of Buckeye Fields for 2023 Recommendation: Approve a use fee rate of $41,741.26 for Lafayette Little League’s 2023 use of Buckeye Fields per the conditions in the Lease Agreement with the City.
E. Assigning City Council Liaisons to Central Sanitary District, Pacific Gas and Electric, and The East Bay Regional Parks District.
Recommendation: Approve the assignment of City Council Liaisons to Central Sanitary District, Pacific Gas and Electric, and The East Bay Regional Parks District.
F. City of Lafayette Sponsor for Lamorinda School Bus Program Funding Recommendation: The City of Lafayette to act as the Project Sponsor for the Lamorinda School Bus Program to enable the program to receive the pre-approved TFCA funds. Staff to formalize this sponsorship, ensuring compliance with CCTA’s TFCA policy requirements.
ACTION: It was M/S/C (Anduri/Candell) to adopt Consent Calendar Items A, C, D, E and F. Vote: 4-0-1 (Ayes:
Kwok, Anduri, Candell, and McCormick; Noes: None; Absent: Dawson).
10. OLD BUSINESS
A. Niroop Srivatsa, City Manager and Tracy Robinson, Administrative Services Director
1. Resolution 2024-30 Calling for the Placement of a 7 Year Transactions and Use Tax Measure on November 5, 2024 Ballot
Recommendation: Adopt Resolution 2024-30 and appoint a City Council Ad Hoc committee to write the Argument in Favor of the Ballot Measure and Rebuttal Argument.
City Council Meeting Page 6 of 40 July 22, 2024
2. Resolution 2024-31 Setting Deadlines and Rules for Arguments and Rebuttals – Transactions and Use Tax Measure on November 5, 2024 Ballot
Recommendation: Adopt Resolution 2024-31.
3. Resolution 2024-32 Requesting Consolidation of Election with Contra Costa County for Transaction and Use Tax Measure on November 5, 2024 Ballot Recommendation: Adopt Resolution 2024-32.
City Manager Srivatsa stated at the July 8th meeting, the Council directed staff to prepare resolutions to place a general-purpose transactions and use tax measure (aka sales tax) on the ballot asking voters to approve a half-cent local sales tax for a period of seven years to provide funding to maintain the current level of City services. All funds received from this half-cent sales tax would remain in Lafayette.
The Council also appointed a subcommittee of Mayor Dawson and Vice Mayor Kwok to work with staff to develop the ballot measure language. The language was drafted and reviewed and approved by the City Attorney’s office as well as by Dr. Gary Manross who was hired by the City to conduct the two scientific telephone surveys earlier this year on the potential sales tax measure. The ballot language is in the staff report for the Council’s consideration this evening.
In order to place the measure on the November 5th ballot, the Council needs to adopt three resolutions. The first; Resolution 2024-30 calls for the placement of a 7-year transactions and use tax measure. Resolution 2024-31 provides for the filing of primary and rebuttal arguments and setting deadlines and rules for arguments and rebuttals for the measure. Lastly, Resolution 2024-32 requests Contra Costa County to consolidate a General Municipal Election for the measure with the statewide election that will be held on November 5th.
Staff recommends the Council adopt the three resolutions and appoint a City Council Ad-Hoc Committee to write the primary and rebuttal arguments in favor of the ballot measure. Both Tracy Robinson, Administrative Services Director and she are available for questions.
Councilmember Anduri asked and confirmed with Ms. Robinson that if voters approve the measure, the sales tax would take effect on April 1, 2025, rather than January 1, 2025, and that the City will likely start receiving revenue in June 2025.
Councilmember Anduri noted that every Councilmember reads the public comments that are received. He referred primarily to the letter submitted by Libby Henry today, as well as a number of questions have been raised. He recommended receiving answers from City staff on the following questions:
Question: Whether alternative solutions were presented to the City Council. Ms. Robinson stated a number of emails were received and forwarded to the Council as well as in the packet. They have received a number of options for additional cuts to the budget that could have been made. She pointed out that this is not a one-time $2 million budget deficit but on-going and structural and will be at least $2 million a year and growing, which means cuts all need to be on-going cuts to programs. One-time cuts to programs will not solve the problem, and while she does not have the list, on June 10th these were presented to the Council with a staff report of what 10% cuts across the board to all departments would look like. Attachments included were cuts outlined in detail.
City Council Meeting Page 7 of 40 July 22, 2024
Question: There is a statement that the budget deficit could be solved by making a few choices and one suggestion was elimination of a consultant fee that would save the City over $750,000; for the Housing Element. His understanding is there is no consultant fee for the Housing Element in the next budget. Ms.
Robinson confirmed this is correct. What she has done for the 5-year budget model is removal of the funds spent on single issues, so they are not currently in the budget and, therefore, do not need to be cut.
Question: There is a reference to $250,000 for a traffic consultant, and again, this cannot be cut because it is not in the budget. Ms. Robinson confirmed it is not in the budget and she could also not find a $250,000 charge in the budget.
Question: There is a reference to the fact that the City pays into the equivalent of a 401K for City staff. He asked if a vast majority of cities in California pay into the CalPERS retirement system. Ms. Robinson confirmed and said the City does not pay into CalPERS. The 401K is the only retirement program that the City employees have.
Question: There was a suggestion that the idea to reduce staff’s salaries was never brought to the Council as a possible solution. His recollection is that in the June 10th staff report, there was a discussion of this possibility and there were four reasons given why it might not be a good idea, and the Council agreed with those reasons. Ms. Robinson confirmed.
Question: There is also a reference to a project that, if eliminated, could account for the rest of the budget deficit which is the Pleasant Hill Road Median Project. He asked if it is correct that this is not in the budget.
Ms. Robinson said no, funds for building that project are not in a go-forward budget. Going forward, the funds currently being used for design were a grant.
Question: There is a reference to three parking enforcement trucks that the City has that it uses rather than electric scooters. He asked staff to explain why they have these trucks versus electric scooters. Ms.
Robinson said she spoke with Cathy Surges today who has been with the City for a long time, and she told her they used to have the little parking carts many years ago; however, they were not very reliable. When they broke, maintenance needed to be done in Sacramento because regular car repair shops did not have necessary parts. In fact, they are pretty costly and almost the cost of a truck because they are specialty and not mass manufactured. In addition, the City uses the parking enforcement trucks for other ancillary purposes around town to assist officers such as when there is an accident that requires traffic control, replacement of batteries for camera systems, pick up of found property such as bicycles, illegal signage, and emergency services. If accidents are on hills, the carts would not be able to make it up some of the City’s hills. Therefore, trucks make more financial sense and are more useful than smaller carts.
Question: There was a statement that in the materials explaining the tax, the City stated the fact that Lafayette’s sales tax level is 8.75% and Orinda and Moraga are at 9.75%. There is a statement that staff fails to point out that both Orinda and Moraga pay for and run their own police and fire departments, which is a main part of their budget. Ms. Robinson stated Lafayette pays the Sheriff’s Office for police officers and Orinda does not have its own police department and also contracts with the Sheriff’s Office.
The City of Orinda and Town of Moraga have the Moraga Orinda Fire District for fire services, and she confirmed the Orinda budget has no expenditure for fire. That money comes out of property taxes just like money for Lafayette fire services come out of the property taxes and go directly to the Contra Costa Fire protection District or Con Fire.
Councilmember McCormick asked if the City is better or worse off having a 401K versus a CalPERS program.
City Council Meeting Page 8 of 40 July 22, 2024
Ms. Robinson explained many years ago the decision was made to not join CalPERS because cities do not necessarily have any control over what they pay. Rates are set by CalPERS. There have been examples of years when the earnings were not enough, so rates needed to be raised substantially. Many cities still have a lot of outstanding unfunded debt because of CalPERS. CalPERS is a defined benefit program and cities basically pay for employees long after they leave, and this is set into the rate.
With the City of Lafayette going with a more traditional 401K program, they know exactly every year what its expenditures will be, and it does not vary. Over the years, they have no unfunded debt and so she believes this is actually financially better given it is a defined contribution program rather than a defined benefit program.
Vice Mayor Kwok opened the public comment period.
MIKE HAYES said adopting the Oxford University narrative story-telling communication strategy addresses the City’s $2 million deficit and creates a vibrant future for Lafayette. He spoke about success stories in Finland using a narrative story-telling approach. The strategy involves creating a compelling vision of the City’s future, engages all stakeholders in shaping and refining this vision, and uses the narrative to describe decision-making and policy development. By adopting this approach, the City can address its budget deficit through innovation community-driven solutions to increase community engagement and ownership of City initiatives, develop a unified vision, transform Lafayette into a hub for responsible AI adoption and innovation, while addressing current challenges.
LIBBY HENRY thanked Councilmember Anduri for his responses and clarification. One point not brought up that she made is that whether or not these things were actually addressed, she does not believe staff presented a full picture to the Council for the Council to make an informed decision to go ahead and place the sales tax on the ballot. This is her main objection. As far as the 401K, she was a public-school teacher for 27 years and the reason public employees do not get 401K’s is because school districts do not have a budget for that. She worked for the private sector and the company had a 401K, but this is because they are a profit-making organization that can provide those matching funds. She was shocked to find out that her taxpayer monies are going into certain individual’s personal financial retirement plans. They could do 403B’s which was up to her to contribute to because there was no money in the school district budget to do so. So, she was not sure an examination of CalPERS might be a consideration, and she was shocked by the benefits package and salaries for those working for a public agency. Lastly, she asked that the Council reconsider before making a final decision about putting the sales tax measure on the ballot because she is 100% against people paying for poor decisions made and expenditures that should not be made.
LAUREN HERPICH said she has spoken with many residents about the sales tax measure, and it is coming as a shock. The City went from a surplus where the City was buying millions of dollars in property to a $2.5 million deficit very quickly. Participating in the City’s process for nearly the last decade, she has voiced support for the City to create more parks, gathering spaces, and safe pathways for residents to enjoy, but at no time recently has she heard that the City does not have money for things. There has been no focus or prioritization. She understands the City does not get much from property tax revenue and there are great things the City can do with more money, but thinks the City needs to get its house in order before asking the public for more of their hard-earned dollars. She thanked staff for the proposed 10% cuts. It is good to see what they have deemed possible and thinks it is important that with other line items there is more fat they can cut. They can see what they may be able to bring back and invest in further.
City Council Meeting Page 9 of 40 July 22, 2024
She asked to move forward with cuts, get reimbursement for unfunded mandates which comprises 15% of the annual deficit, and freeze public arts and mural funding. She is a huge supporter of the arts but $289,000 next year is another 15% of next year’s deficit. She asked to talk about needs versus wants. On the flipside she asked to more accurately reflect revenues. The City has consistently under-estimated the amount of property tax revenue garnered each year by about $100,000 with total funding sources underestimated by $250,000. This is another 5% adjustment. She paid attention to the ARPA funding distribution which is a micro-example of how money has been spent and frankly, it has left a bad taste in her mouth. Nearly $500,000 of the funding received went to consultants and contractors. Money was also spent to advertise a survey where citizens battled each other for a piece of the support and, at the end, nearly 45% of the money was just put back in the General Fund. Instead of doing something really great with that money, they kicked the can down the road. Even with the City’s oversight committee which she would like to understand how that will be established, she thinks in order to consider a sales tax increase, the City needs to get its house in order first.
CHERYL MACDONALD (read by City Manager Srivatsa) said the oversight committee should have involved community members on the committee and not picked by staff or the Council.
DAWN EAMES thanked the Council for reading her emails prior to deciding on the resolutions. She read in a previous staff memo that if the Council decides not to place a funding measure on the November ballot, staff will return at a future meeting with proposed changes to services and programs that will need to be reduced or eliminated to close the $2 million budget gap, which she feels is completely backwards.
Staff needs to come up with an attempt at a balanced budget prior to going directly for a tax increase to present to the City Council and citizens. The Vistas newsletter merely bolstered their view that a sales tax increase was the only way to deal with the budget deficit with veiled threats of cuts to vital services and lower property values. There needs to be open discussions with the community, taxpayers, and registered voters on what services, salaries, projects need to be looked at or delayed and reduced, if necessary. Then and only then can a realistic budget be developed and brought to the Council for further discussion.
The City Council should not just rubber-stamp approval of a tax increase because City staff are recommending it when they have not done their due diligence to its citizens. The tracking poll showed 74% of the 400 surveyed were unaware of the deficit. Having a glossy tracking poll conducted out a population of 25,000+ to bolster the City’s desire to tap the taxpayers is unconscionable, especially since the budget deficit was foreseen 5 years ago by the City, if not 7 years ago. If the resolutions are approved; however, the oversight committee needs to be totally impartial and put out to the citizenry for volunteers.
She lastly questioned whether $235,000 was in the proposed budget for salaries and bonuses.
Ms. Robinson confirmed there is no money in the current proposed budget for bonuses.
Councilmember Anduri said the Council has heard a number of comments from speakers that the Council should not just accept what staff did and that they did not present the whole story to the Council, which is not the way this has worked. Everyone should be aware that at the Council’s goal-setting meeting several years ago, they saw this was coming, did not think it was going to be as bad because they did not learn yet about the insurance increases and amounts to fix the roads, but they saw this was eventually coming. They appointed a Fiscal Sustainability Committee to look at it and study it, which was Vice Mayor Kwok and him. The City Finance Subcommittee each year looks at the budget very carefully and works with staff, and they see everything that is in the budget. He also pointed out that he saw an email from a resident asking if they can see the budget and yes, any resident can see the whole budget which was part of the staff report from June 10th and 28th. He encouraged residents to read the budget, ask staff and the Council questions about the budget because there is nothing hidden.
City Council Meeting Page 10 of 40 July 22, 2024
The Finance Subcommittee has worked with staff, and it is not the staff putting something over on the Council. The Council asks questions of staff and work with staff to ensure the Council is doing the things they choose to do which are done in the most cost-effective manner. It comes before the Council in budget meetings. The Council reviews the budget carefully, review the reports, ask questions, and it is not a question of things not being presented to staff. From his point of view, the Council has received a great deal of information upon which to make this decision.
Again, they saw this coming. The Financial Sustainability Committee last year started working with staff to put out information. What is interesting to him is that they put out this information and if people would read the Vistas, many items people seem to have a lack of understanding about are explained in the Vistas, and he emphasized that nothing is being hidden. Information is on the website, or it has been presented, and he will take full responsibility for the information going out to the public and he said it is a joint effort.
Councilmember McCormick said he remembers sitting in the audience in November last year when the Council was discussing the upcoming budget which was 7 to 8 months ago, so it is something they have been talking about. He also thinks some characterizations from speakers regarding how the Council is going to ‘put one over,’ he thinks all they are doing potentially is authorizing placing a ballot measure for residents to vote to make their voice heard. They talk about this in a very public way. It is difficult because the City budget is 181 pages long. He read every page, is sure all Councilmembers read every page of it, and there was very little public input at that meeting because budgets are not interesting, but it is very transparent. For a $20 million organization, the budget is very easy to understand so he thinks the Council feels comfortable with how the budget is being utilized. If they reflect back a little on the survey that was conducted twice, they see that well over 90% of residents seem satisfied with the City, so the Council owes it to them to weigh in on this and see if they want cuts or whether they want a sales tax increase.
So, he thinks the process is moving forward as intended.
Councilmember Candell echoed comments and said the Council has seen this coming for a long time and ARPA funds made a huge difference. The City was paying off recurring costs with one-time money and they knew it and did it. They did not anticipate inflation, insurance, capital expenses for roads were going to get so big so fast but knew it was coming. Right now, the Council will vote on this to put it on the ballot but now the campaign will begin if they vote to do that. This is the time when the City will get as much information out to answer everyone’s questions as best as they can. Then, in the end, residents vote, and it may be up or down. If up, great but if down, the City will make big cuts and must be fiscally responsible to do so. She asked residents to reach out to Councilmembers to hold meetings and provide outreach because they cannot tell residents how to vote. All they can do is pass information along, so she looks forward to the next couple of months and doing their best to clarify what has been going on.
Vice Mayor Kwok said he would emphasize that the City Council is not here imposing a sales tax on the public. It is the public’s decision in November to vote for it or not. What the Council will do tonight is recommend how much and for how long and what is on the table is the one-half cent sales tax for 7 years with conditions, and it will be up to residents to decide whether they want to add the tax and increase revenue or not and make cuts. In the City’s DNA of the 50 years, it has been incorporated, they have a reputation for a balanced budget and very frugal management, and he appreciates his predecessors and the staff where it is very deeply in the City’s DNA to do more with less and he thinks they have come to the point where they have tried to do more with less until costs are outrunning them at this point.
City Council Meeting Page 11 of 40 July 22, 2024
Councilmember Anduri referred to the statement of what is needed is an open discussion within the community. All he can say is that what could be more open than putting this on the ballot for everyone to decide. So, with that, he made a motion, and Councilmember Candell seconded the motion.
Vice Mayor Kwok said in one of the items it is an appointment of a City Ad-Hoc Committee in Resolution 2024-30, and he would like for the City Attorney to explain what is the Ad-Hoc Committee, discuss it, and make the appointments prior to voting.
City Attorney Mala Subramanian said the City cannot use public funds for advocacy purposes, so the reason for this on the agenda is to appoint an Ad-Hoc Committee that will not be supported by staff, will not be a public meeting supported by staff, and the Ad-Hoc Committee can prepare a ballot argument for the measure and any rebuttal argument. It will not come back before the Council because if it did, it would be a public meeting that would be agendized and use public resources.
Vice Mayor Kwok said the Council will need to appoint two members from the Council to be on the AdHoc Committee and their role in Resolution 2024-31 would be to write the argument in favor of the ballot measure of 75 words. If there is an argument against, the same two people would draft the rebuttal.
Those two drafts would not return to the full Council and then in the ballot, those members’ names would be listed on the ballot as having been proponents of the argument in favor and the rebuttal argument.
He checked with Mayor Dawson and she would like to be a member of the Ad-Hoc Committee and he would like to offer other Councilmembers who may have an interest to be the second person on the Committee. Councilmember McCormick said he would like to do it but would also defer to other Councilmembers. Councilmembers agreed that Councilmember McCormick would be a great member on the Ad-Hoc Committee with Mayor Dawson.
ACTION: It was M/S/C (Anduri/Candell) to: 1) Adopt Resolution 2024-30 and appoint a City Council Ad Hoc Committee to write the argument in favor of the ballot measure and rebuttal Argument; 2) Adopt Resolution 2024-31 setting deadlines and rules for arguments and rebuttals; and 3) adopt Resolution 2024-32 requesting consolidation of the election with Contra Costa County for a Transactions and Use Tax Measure on the November 5, 2024, ballot. Roll Call Vote: 4-0-1 (Ayes: Anduri, Candell, Kwok, and McCormick; Noes: None; Absent: Dawson).
ACTION: It was M/S/C (Anduri/Candell) to appoint Mayor Dawson and Councilmember McCormick as the Ad-Hoc Committee to write the primary and rebuttal arguments in favor of the ballot measure. Vote: 4- 0-1 (Ayes: Kwok, Anduri, Candell, and McCormick; Noes: None; Absent: Dawson).
11. STAFF REPORTS – None.
12. PUBLIC HEARINGS
A. Anna Tolle, Assistant Planner
Appeal by applicant of the Planning Commission’s denial of L05-21 Circle K Ahmadi (Applicant), C Zoning: Request for a land Use Permit to allow the conditional use of a convenience market activity in an existing commercial building at 3667 Mt. Diablo Blvd., APN 241-030-004. The project is categorically exempt from environmental review under CEQA Section 25303(c) for the conversion of an existing commercial building to a new commercial use.
City Council Meeting Page 12 of 40 July 22, 2024
Recommendation: Review the proposal, conduct the public hearing, find the project exempt from CEQA and adopt Resolution 2024-33, upholding the appeal and approving the project subject to conditions.
Assistant Planner Anna Tolle gave the staff report and overview of the appeal by the applicant of the Planning Commission’s denial of L05-21 Circle K Ahmadi for a land use permit to allow the conditional use of a convenience market project activity in an existing commercial building at 3667 Mt. Diablo Boulevard.
She pointed to two minor errors in the draft approval resolution as Attachment 1 in the staff report packet on PDF page 10 and 12. References are made to the Planning Commission deciding on this application.
The final resolution will be updated to refer to the City Council, and she apologized for these errors.
The applicant has made a change to the proposal to propose an independent, upscale convenience market now. This would be consistent with comments made by the PC and the community; an independent shop rather than a franchise would be more of a service to the local community, but the applicant can speak to the store’s specific characteristics. Ms. Tolle then described shared parking, hours of operation, physical site items, compliance of alcohol sales through licensing with the ABC, and the project site and surroundings. She then displayed the site, showing the public parking arrangement with angled parking available for the public, restriction of parking in the rear lot for employees, employees of the business, and deliveries only.
Because the site is within one-half mile of the BART station, the City cannot require off-street parking for the new use under State law AB 2097 for customers or employees; however, the applicant is proposing some parking for employees only. There is also a designated delivery space in the rear of the store.
Ongoing concerns of staff and the PC is the likelihood of delivery drivers double parking along Mt. Diablo Boulevard, which would block a lane of traffic. This regularly happens in the downtown area and the applicant provided a vehicle turn template, which demonstrates the rear lot does have sufficient space for the proposed 20-foot trucks to enter, park for their delivery, back up, and exit the lot. Staff has incorporated a COA to place signage at the street level as well as in the rear directing drivers to park in the rear of the store, to not double park, and to back out of the drive aisle back into the parking lot if there are conflicts with vehicles entering the drive aisle. If delivery drivers park on Mt. Diablo and block traffic, they may be subject to parking citations. A COA will further limit delivery hours to between 7 a.m. and 7 p.m. to reduce noise impacts on adjacent residential neighbors.
Public comments received during the two PC hearings were published with the staff report in meeting minutes capturing in-person comments, as well as the prior staff reports which captured the written communications received to date, and Ms. Tolle described concerns. The PC was unable at the time to make Finding A and E and found the project has a great potential to impact the safe flow of traffic due to delivery trucks parking along Mt. Diablo Boulevard, as well as risks from vehicles entering and exiting the parking lot from the drive aisle. The PC found the hours of operation, which were originally proposed to be 5 a.m. to 1 a.m. would result in a nuisance due to noise created by late night operations as well as delivery trucks.
Staff finds that the findings can be made for approval as proposed and further conditioned, and recommends the Council review the proposal, conduct the public hearing, find the project exempt from CEQA and adopt Resolution 2024-33, upholding the appeal and approving the project subject to conditions.
Vice Mayor Kwok opened the public hearing.
City Council Meeting Page 13 of 40 July 22, 2024
Councilmember Anduri said he went through the application reviewed by the PC and what is before the Council tonight. He asked what is different from what was presented to the PC. Ms. Tolle deferred to the applicant to answer specifics of the operation and different business model. He knows the proposed hours have changed from 5 a.m. to 1 a.m. to 5 a.m. to 11 p.m. and limiting those hours. They did not propose specific delivery hours, or they were later. Currently, they have expressed their agreement to comply with 7 a.m. to 7 p.m. for deliveries. They will also not be affiliated with the Circle K franchise.
Councilmember Anduri referred to the deliveries, and COA #9 states “Scheduled deliveries are permitted between the hours of 7 a.m. and 7 p.m.” He asked why the word “scheduled” is included and asked if there are unscheduled deliveries allowed at other times. He suggested deleting the word “scheduled.” Councilmember Anduri asked how the City enforces this and knows there was discussion at the PC meeting. Ms. Tolle said delivery trucks double-parking does fall under traffic enforcement; however, it can prove difficult to enforce. Generally, trucks are not parked for a very long time so having it be a COA would have it fall to code enforcement if a complaint were brought to the City.
Councilmember Anduri said if this COA is violated, he asked what is the City’s remedy and asked if the permit can be revoked.
Assistant Planning Director Sonia Urzua replied this same question came up during the PC hearing. Staff would say the code enforcement would go forward. In addition, the LMC in Title 6 provides 2 sections; Section 6-251; Grounds for Revocation allows the PC to consider a revocation procedure for violation of one of the conditions of approval for a permit. The procedure is set forth in the LMC. Any appeal to that action would go to the City Council, as well. The LMC provides probable cause that needs to be established and more details. It is not a procedure that gets invoked very frequently and, for the most part, the City manages it at the staff level in trying to work with operators and the community.
Councilmember Anduri asked what the burden of proof would be in order for the PC to say this condition is critical and it has been violated and it cannot be permitted any longer. He asked if it would be a single violation, on-going violations, etc.
Ms. Urzua said the procedure states that the PC would need to find there is probable cause for revoking the permit and then direct the Planning Director to give notice.
Councilmember McCormick referred to the ABC license. He asked if it was unusual for the applicant was having this discussion prior to the request to sell alcohol and asked if they were typically separated out.
He would imagine that if they impede the ability to sell alcohol, the business model probably does not work, and he asked how it normally works.
Ms. Tolle asked and confirmed that Councilmember McCormick was asking if the City typically decides on land use permits before an alcohol license is applied for. She said she was not sure what the typical process is, and the applicant might also have reasoning to apply for an ABC license until they know the land use is approved and she deferred to the applicant.
Councilmember McCormick said there were several letters that came in that live nearby and there was a lot of concern about crime and what bringing a convenience store, upscale or otherwise, into the neighborhood would do to crime. He asked if staff has any comments on that. There were only two convenience stores in town, and he would like to hear from staff about statistics.
City Council Meeting Page 14 of 40 July 22, 2024
Planning and Building Director Greg Wolff said staff dialogued with the Chief of Police regarding this concern. He believes it is safe to characterize the Chief’s comments that there is no clear, distinct pattern of increased crime associated with any one business type specific to convenience stores. He thinks there have been 9 robberies in the last 18 months that are in the commercial district and 3 of them were associated with convenience stores. One of the three was after midnight, but the rest were between 7 a.m. and 10/11 p.m. So, it is a very small data set and characterizations around it are difficult to draw, but that is the data staff was able to glean from Police, and it is fair to say the Chief did not see a clear and distinct pattern, so he did not object to the application.
Councilmember Candell said staff referred to other businesses in the downtown that double-park in order to get deliveries. She asked if any of those other businesses have a similar use to this business. She would imagine deliveries coming to convenience stores would be a lot. So, she asked if any others are expected to have the kind of deliveries they would expect to have here.
Ms. Tolle said she thinks they would have similar volumes. The ones she was referring to are not convenience stores. Based on observations, she has seen trucks parked in front of Starbucks on Mt. Diablo Boulevard, and a couple other restaurants, as well. Often, restaurants might get deliveries a couple days a week. The applicant has indicated 2-4 days a week for deliveries as well. She is not sure volume-wise how similar that would be between a restaurant which requires more fresh deliveries so it could vary.
Councilmember Candell referred to staff’s observations, she asked if deliveries are typically in the mornings or all day long. Ms. Tolle said she has not been able to witness enough of them to know.
Councilmember Anduri said the City cannot require parking within one-half mile from BART. If a new business comes in of any kind and there is no way parking can be accommodated for that business, he asked if it is correct that the City could not deny an application based on a nuisance given a backup down the street.
Ms. Tolle said it is her understanding that the lack of parking specifically is not to be used as a finding because the City is not able to enforce the minimum parking the City would otherwise require for a new business and therefore should not factor into the finding factors for denial.
Councilmember Anduri said for a driver going west on Mt. Diablo Boulevard in the inside lane or lane near the median, when in front of Diamond K, there is a break in the median and solid lines, and he asked if drivers can turn across those lines in between the medians.
Ms. Tolle said a U-turn will be permitted at the light. Mr. Wolff added that Engineering had advised that westbound traffic will be able to make U-turns at the Diamond K driveway and at the City offices’ signalized driveway where Lennar is putting in the signal at that intersection. If it is a single set of double white lines, a vehicle can turn across it when safe to do so. If it is two sets of double yellow lines or effectively a median, a driver cannot cross the double set.
Councilmember McCormick said right now, that break described states “right turn only” at the break in the median. He asked if this will change to allow a U-turn because if there was no U-turn allowed there, everyone would be queued up at the light which would be significantly more traffic.
Mr. Wolff apologized and what Councilmember McCormick has observed as the existing sign is what Engineering advised.
City Council Meeting Page 15 of 40 July 22, 2024
Councilmember Anduri referred to the parking studies and said there seems to be different interpretations of the parking studies. He knows Mr. McGrath’s letter talks about over 1,000 trips and the parking study refers to about half of that number of trips. He asked staff to provide a definitive answer as to what the traffic study is telling them about the number of trips that would be generated.
Ms. Tolle said she will let the applicant speak to specifics. She believes they predicated their study on different types of trips; net new trips versus pass-thru trips of people who are already passing by and stop.
And, the study does not distinguish between pedestrians, bicyclists, and vehicle traffic, so they will be able to speak from their experience and analysis on that.
Vice Mayor Kwok referred to staff’s recommendation because the PC had two very robust conversations about the topic and commended them for that where he thinks many different viewpoints came out. In the end, the PC could not make findings for Items A and E and asked why staff can now make those findings.
Ms. Tolle stated the staff recommendation has not changed from the original recommendation. Based upon the analysis and information available to staff and research performed by staff over the last 3 years as the application was being processed, the findings are able to be affirmatively made. The project, as conditioned, given conditions can mitigate impacts, can result in staff being able to make the findings for approval.
Mr. Wolff concurred and added that it could be summarized as a difference of opinion. In staff’s analysis, they believe that they can make the findings and thus, made that recommendation to the PC. The PC in its deliberations and considering all facts presented concluded differently, and that is the way it is supposed to work—the PC is the responsible entity for discussing the application, holding the public hearing, considering all facts, and coming to a majority vote. While he thinks staff’s recommendation more often than not is concurred by the Commission or the Council, it is not always the case. So, staff’s recommendation has been consistent, but they fully appreciate and understand if a different conclusion is reached by the hearing body.
Councilmember Anduri asked if it is possible that residents of the new development across the street would have guests, they may not have parking in their building, and guests could park in these spaces all day, and there be no requirement that they move, as well as employees of any business, as he asked if there are any restrictions of someone parking and keeping their vehicle there all day.
Ms. Tolle said she is not aware of any restrictions that will be placed on street parking. It will be public parking spaces.
Councilmember Anduri asked and confirmed the City cannot install meters because the public right-ofway ends at the curb. He asked if there can be 10- or 20-minute parking limits, and Ms. Tolle said many decisions on metered and restrictions for parking in different areas is often considered by the Transportation Circulation Commission and they could refer this to them and consult with them and the City Engineer. She is not sure whether signage could be placed on the private property either on the sidewalk and the edge of curb marks the property line for the private property.
Councilmember Anduri asked if parking can be restricted to a certain length of time and asked if a sign could be placed at the front of the parking lot or paint the curb to state “20-minute parking.” City Council Meeting Page 16 of 40 July 22, 2024
Mr. Wolff said the parking spaces are in the public right-of-way and within the realm for the City to regulate those with respect to metering or time limits. He cannot speak to the physicality of placement of those traffic regulation devices, whether meters or signage. This may be difficult or impossible based upon the specific circumstances of that, but this could probably be worked around a geometric reconfiguration with Engineering. If they need additional space for a signpost for example, it could reduce the number of on-street parking spaces because the angle would have to change to create that additional space. Therefore, he thinks there are engineering solutions to the time regulation.
Councilmember Anduri said the legal question is, if the City wanted to do that, could it, or he asked if they cannot do anything to parking because they are not supposed to be regulating parking within one-half mile of BART.
City Attorney Subramanian said this is on the City’s property, so the public parking is completely within the City’s domain. The private use does not get to use the public parking exclusively. So, the Council in the future could consider putting up signs presuming there is physical space to do so or put certain limits on time restrictions.
Councilmember Candell asked if the City could add a condition of approval to put parking signs on the applicant’s property. Ms. Subramanian said parking is on the City’s property so the City could be subject to the size.
Vice Mayor Kwok called upon the applicant for a presentation.
Muthana Ibrahim, Architect, M I Architects, said he will present the first part of their presentation, and Mr. Hussein Saffouri, attorney from the Ramsey Law Group, to present the second part. Also, Steven Matthew R. Dauterman, Senior Traffic Engineer with TJKM is available for any questions regarding traffic.
Mr. Ibrahim gave a PowerPoint presentation and presented the difference between the previous proposal of the previous Circle K proposal and the current proposal which is a local convenience store. Circle K, 7- Eleven, and Starbucks are branded names which are recognizable and searched on the Internet. A local convenience store is not known and will not cause that problem.
Regarding double parking, the owner of the convenience store works from the office next door to the space, so he will monitor the operation of the delivery trucks which will only be 2 to 4 times a week and will use parking in the back. There are 300 customers per day benefiting from this location. Most customers will be walking from the neighboring apartments and businesses. Regarding the traffic study, their traffic engineer can explain the numbers, but the business is designed to have no more than 3 customers parking at any time, and most customers will be walking to the store.
He presented an aerial view showing the space and alley. The alley access to the building was constructed in the 1960’s and it has been working. There will be no pedestrians in the alley. They have a sign they will post to state all pedestrians shall access the street through the store, and there are other examples in Lafayette of alleys which he pointed to on the map. There are two access alleys similar to theirs that accesses a parking lot behind the building and it has worked fine for many years.
City Council Meeting Page 17 of 40 July 22, 2024
Mr. Ibrahim said the convenience store will be a high-end market, will serve the local neighborhood, and the design will include high end premium quality materials and colors, custom coffee, espresso bar and drinks, packed and fresh food options. The Tier 4 plan has a front entry to the sidewalk on Mt. Diablo Boulevard and in the back there is an entry for the back parking lot. There is a second register, sales area in the middle, and he asked Mr. Saffouri to present the second part of the presentation.
Hussein Saffouri, attorney representing the applicant, Ramsey Law Group, said the applicant has been a business and property owner in Lafayette for decades. His family business office is in Lafayette next door to the proposed store, and he is someone who has invested in and continues to invest in Lafayette. Their task today is to consider the facts which are set forth well in staff’s report, make findings based on those facts, and vote based upon findings. As the report shows and their submissions, each of the findings necessary can and are present here.
Regarding what has changed from the last version of the application is that then and even more so now, the application is designed to address the concerns of the City of Lafayette, the PC, and the neighbors that were raised. The two large concerns related to noise and possible nuisance which have been addressed by their agreeing to limit the store hours. It is not going to be a late-night store, will not open early in the morning, and it will have limited hours. They also agreed to limit the hours of deliveries and the number of days for deliveries. The other significant change is this is not a change store but a local brand. The Fast Fill brand is Mr. Ahmadi’s own brand. They have a few stores opened in that name which allows them much greater control of the look and feel of the store, which addresses another concern of the neighbors which is what the business will look like and whether it will fit in the neighborhood. This will be a highend store and not limited by requirements of a chain brand like Circle K. The store will also fit in well with the Brandt condominiums being built on the other side of the street.
From the outset and with more requirements for signage and other conditions, this project has been designed to address the concern about double parking of delivery trucks. They do not want this to happen, and this is very different from other stores in the downtown area, with the Starbucks example being raised. Those stores do not have an off-street loading zone. This project is designed with an off-street loading zone that will be required to be used for deliveries. It will be easy for the owner working next door to enforce that requirement and it will be a requirement for all vendors. If they do not comply, they will be replaced with other companies to adhere to the requirement. It is also important to his client to keep the street in front of his own office free and clear of traffic and the signage that will be included in the COA’s will assist with that.
He clarified that the number of expected customers based on this type of store is 300 customers a day.
The added traffic is based upon that. Most of the trips to the store will be pre-existing trips and this is not new traffic being generated. When seeing a number like 600, the idea is that each trip to and from is considered a different trip which their traffic engineer can expand upon.
Another concern raised previously was about crime, but what has changed between then and now is that more research has been done. The Police Chief has been consulted and he and staff have looked into the issue. There is no data that supports the notion that convenience stores attract crime. He concluded and said they can answer any questions.
Vice Mayor Kwok asked for questions of the applicant.
City Council Meeting Page 18 of 40 July 22, 2024
Councilmember McCormick asked to articulate the difference in branding for the Circle K and Fast Fill. It is unclear to him what else is different because when he looks at the corporate website for the applicant who owns a variety of different convenience stores, there are Circle K’s, 7-Elevens, Fast Fill, and others.
He asked if the other Fast Fills that are owned by the applicant have this high-end concept.
Mr. Ibrahim said that is the goal. He has not seen them personally.
Councilmember McCormick said the pictures he saw of the Fast Fills look like standard convenience stores.
Mr. Ibrahim said that is what is intended in the City of Lafayette.
Councilmember McCormick said when thinking about this store, if the Council approved a Fast Fill, he asked if there is anything from stopping the owner from changing it to a Circle K next year. It is still a convenience store in the same location. Mr. Ibrahim said he did not believe they will change to Circle K.
When they build a brand, the goal is to compete with Circle K. He did not know if they would change it, but many developers build a brand, and they go with it.
Councilmember McCormick said his personal thought is that Fast Fill does not sound particularly like a high-end market, but aside from that, if he compares what a Circle K or a 7-Eleven versus this, he asked and confirmed they will be selling beer and wine at the store. He asked if he would be selling liquor, and Mr. Ibrahim said he was not sure, but did not think so. It depends on the license, but definitely beer and wine.
Councilmember McCormick asked and confirmed they will be selling cigarettes and he asked how they would classify a high-end market that would sell cigarettes. Mr. Ibrahim said honestly, he was not sure about the cigarettes. It was not part of his presentation today and he assumed.
Councilmember McCormick asked if they would be selling vape pens or E-cigarettes, and Mr. Ibrahim said he did not believe so and never heard of it.
Councilmember McCormick said he is trying to understand what the nature of the store is, and the applicant said it is changing from a Circle K to a Fast Fill. Mr. Ibrahim said they are proposing products like salads, cheese platters, and high-end coffee and a high-end store.
Mr. Saffouri explained that the reason the Fast Fill name is being used is that his client owns that brand name, so they do not have to develop or pay for a new brand. The difference between the Fast Fill and Circle K or 7-Eleven is that it is not a franchise. They will not be required by a franchisor to carry any specific types of products, to have a specific type of look and feel or to have a specific product mix. They are free to do something different that is what they feel will fit in there, and what they want to do in this particular location is something along the lines of what the pictures look like. It is a convenience store, but it will also have prepared salads and a coffee bar rather than just a coffee urn one might get at a gas station convenience store. They do own these types of stores, and those are built and designed to fit the location they are in which is different than this location.
Councilmember McCormick asked if this will be the first store of this kind they would have. Mr. Saffouri said he was not sure they have any other high-end stores and is not familiar with all the stores they run, but this is their intent here. This is the first and only convenient store they are putting in right next door to their own offices.
City Council Meeting Page 19 of 40 July 22, 2024
Councilmember McCormick said this is understandable. The applicant is asking the Council to make a statement of faith as to what it is going to be when it was a Circle K last month and now it is something else, and there is a vague description. He is trying to understand what kind of store it is going to be. For example, when BevMo was approved to have a liquor license in 2016, on their application they said they would not sell cigarettes. He asked if the applicant is willing to do that.
Mr. Saffouri said he was unsure and said this has not been part of the discussion.
Councilmember McCormick said the applicant asserts that most of the 300 customers per day will be walking. He asked what factual basis does the applicant have for this assertion.
Mr. Ibrahim said when they decided to open the store, they knew about the apartment building project across the street. There is also an apartment next door and a lot of businesses in downtown Lafayette.
This is the assumption; that most of the customers will be walking as there is no parking. There are only four parking stalls in front of the store, so logically, they will not get many customers driving to and from the store.
Councilmember McCormick said there is a Trader Joe’s less than 500 feet from the store and most people drive to that, and Mr. Ibrahim agreed but said they will not park there and walk to the store. The type of customer that comes to the store wants to stop, get a drink, a snack, and then leave within 5 minutes, so they are not going to park by Trader Joe’s and walk to the store. He clarified they will be walking from businesses around this and the apartments across the street that will be built. This is how they came to this conclusion.
Councilmember McCormick said the applicant mentioned it is not a late-night store. He said the hours are until 11 p.m. and he asked if this is not a late night. He thinks that is about as late as anything else in Lafayette that is open.
Mr. Saffouri said it is contrast to the 7-Eleven, which is an all-night store or the Safeway which is an allnight store. The store closes well before midnight and it is late, but it is not a late-night store as one would expect in an urban environment of midnight or past midnight.
Councilmember McCormick said there is very little night left after 11 p.m., so compared to most stores in Lafayette, he would say it is very late night, but the applicant is asserting it is not a late-night store.
Mr. Saffouri said the factual point he is making is that this is not a store that will be open all night and that they made that change, and they reduced the hours in order to address the concerns of the residents.
Councilmember McCormick said the original application went to 1:00 a.m., but he acknowledged they backed it back to 11 p.m.
Councilmember Candell said she is under the impression that the Council has no control over what the applicant puts in this store. They say they are going to do something, but she asked if they basically make more like a Circle K. If they do, she did not think the City Council has any jurisdiction to change that after the applicant said they were going to do this, but they did not. She asked if the City has any enforcement they have to be able to take that back and make them do that.
City Council Meeting Page 20 of 40 July 22, 2024
Mr. Wolff said there are no conditions proposed that speak to the nature of the products that would be carried at the store. He thinks everyone can agree there are national brand potato chips and some specialized, more expensive and more local. If the applicant promises to do just the local high end potato chips but then decided that it was not working out for their business model and just go with the natural brands, he believes the City would have either no recourse or extraordinarily difficult enforcement.
Mr. Ibrahim said that is not the intent of the business owner. The intent of the business owner is that he would like this store to be a test for all his stores. He wants to have a better product, high-quality, and even when there was the idea to put a Circle K store in. It was not going to be the typical Circle K, but a Circle K that he wants to try other products inside within the limitation of Circle K.
Councilmember Candell said in the traffic report, they came up with 1,500 trips total and the applicant is saying it is only 600 trips.
Nayan Amin, Traffic Engineer with TJKM, said the traffic report is based upon the trip generation rate by ITE which is a national standard. Whenever there is a particular type of development, ITE uses an average trip generation rate. Within the same menu for certain types of land uses, it identifies, based on the national statistics what the passerby trip reduction is. For the land use being proposed on this site, the passerby trip reduction for what the guidelines allow for is 61% of the total number of trips. So, the project site will be generating approximately 1,500 approximate trips; however, out of those 1,500, 900 of them are already on the roadway system. There are no new trips, so the report clearly states the net total new trip generation is approximately 600 on a daily basis.
Councilmember Anduri asked and confirmed that the 1,500 comes from a standard manual that dictates trips for this kind of enterprise or store. Those trips are both trips dedicated to getting to the store and back and those are trips people are heading home and would be on the road anyway and they stop off.
So, he confirmed that what the traffic engineer is saying is that 900 of those are people out on the road anyway and they will just stop, and the 600 are just going to the store on a daily basis. He was trying to figure out where the 300 customers a day comes from because it looks like they are saying it is 300 customer per day who are just going to the store and back and another 450 customers who are stopping off on their way home, so there are 750 customers who are actually going to be stopping at the store.
Mr. Ibrahim explained that the 300 customers came from the client. The client owns many convenience stores, and this is from his experience. When he builds a business, they have to come up with a number realistically to match their thinking, and that is the number he is expecting. He does not expect more than 300 customers will visit his store per day and this is the business plan.
Councilmember Anduri asked if someone said earlier how many people they expect at any one time to be parked out in front. He asked if anyone has done a study or made projections as to how many of those 300 are coming by car and how many are walking or bicycling.
Mr. Ibrahim said he has been told by the owner that most of the customers will be walking because of the circumstances, the location on the main street, the apartment tenants who will walk across the street, etc.
City Council Meeting Page 21 of 40 July 22, 2024
Councilmember Anduri asked if there is anything to back that up other than the owner’s experience. Mr.
Ibrahim said the customers for this type of business are in a hurry and want to grab a snack or drink and leave. If they drive and see no parking, they will go to the 7-Eleven on the east side so they will lose that customer, and this is fine. This is why, by the end of the day, they think most customers will be walking, and this is how they built this business.
Councilmember Anduri asked if they believe they will be walking because the people who are driving will not be able to get a parking space. Mr. Ibrahim said he is assuming that if those 4 parking stalls in the front of the store are full, the customer will drive by and not park elsewhere and come back because they can go to Trader Joe’s and get what they want.
Councilmember Anduri said he thought he heard at some point that there will be only ‘x’ number of cars parked out in front at any one time given the number of customers, but he confirmed Mr. Ibrahim did not say that.
Councilmember Anduri said to confirm, the business involved here operates convenience stores. It does not own the Circle K brand. The business is a franchisee of Circle K for certain outlets that it operates, and Mr. Ibrahim confirmed.
Councilmember Anduri asked and confirmed the business owns the Fast Fill brand and the business does operate several units now under the Fast Fill brand. He asked if all of those Fast Fill brands attached to service stations at the present time, and Mr. Saffouri said he believes they are.
Councilmember Anduri said therefore, the owner owns the Fast Fill brand, the brand now stands for convenience stores attached to service stations, but the owner is now going to put that Fast Fill brand on a stand-alone store in Lafayette but what is inside the store is going to be different from what is inside the stores attached to filling stations.
Mr. Saffouri confirmed and said what is inside each of the other Fast Fill stores is a little bit different than each of the others. This is not a franchise model that is cookie-cutter. Each store is designed for the location, but the idea is that the owner wants to turn his Fast Fill brand generally a higher-end convenience store brand and this will be his first test site to do that and then carry that over to other locations where he will open more stores.
Councilmember Anduri asked if all current Fast Fill stores owned and operated by the applicant or he asked if the applicant franchises any of these. Mr. Saffouri said they are all owned and operated by the applicant’s family business, which he operates out of the location right next to this proposed store.
Councilmember Anduri said if he said he was skeptical that anyone building a brand would have two different levels of styles of merchandise and interiors he asked what would Mr. Saffouri tell him that he is wrong about that.
Councilmember Anduri said one knows what to expect when going into Tiffany’s. A brand is something you know what to expect, so he is trying to wrap his head around the fact that when going into a Fast Fill you could be going into an upscale Lafayette or something attached to a gas station in Modesto, but there is nothing wrong with Modesto.
City Council Meeting Page 22 of 40 July 22, 2024
Mr. Saffouri said it is a trademark that he owns. He has not yet built it out into a uniform brand in the sense Councilmember Anduri is describing. This particular store is the first one where he is going to try and higher end approach, the idea being it is going to be his test site to then use that at other Fast Fill locations in order to then develop a brand. Right now, it is just a trademark he uses for convenience stores through his business that he owns and that are not franchised. At the same time, he also operates Circle K’s and 7-Elevens, which are all very different. So, he is adept at operating different stores that fit different locations and different requirements. This is going to be his and it will be his top-of-the-line test site he will then use to carry over.
Councilmember Anduri referred to what will be sold in the store and said Mr. Ibrahim’s letter talks about 5 bullet points about things sold in the store. He would assume it is not limited to those. Mr. Ibrahim said these are the general items.
Councilmember Anduri read, “Products offered in the store are unique, such as…” He got the impression from other materials there will be a full range of other things like potato chips, and he asked if it will not just be these items. Mr. Ibrahim said he does not exactly know the details, but he received the list from the owner.
Councilmember McCormick referred to garbage and asked to explain how this will be handled at the site.
Mr. Ibrahim said the cart will be carried through the lift and through the store to the outside. Right now, for the office they do the same thing. The pickup is on Mt. Diablo because the garbage truck cannot go down the driveway.
Councilmember McCormick said he asked Republic Services, the City’s garbage provider what the typical set up is for a convenience store like Fast Fill. The response he got was that typically other convenience stores will have a landfill dumpster, a recycle dumpster, and organics cart. Typical sizes might be a 2-yard landfill, a 4 yard recycle since they usually have a lot of cardboard from shipments, and a 64-gallon green cart. A 2-yard dumpster is about 3 feet wide, 6 feet long, and 4 feet deep or tall. A 4-yeard dumpster is 6 feet wide by 4 feet long and almost 5 feet tall. A 64-gallon green can is likely something one has at home. He asked if the applicant is saying they will move the dumpsters up the lift.
Mr. Ibrahim said for the office, they do not use a dumpster, but this is what they are planning to use for the convenience store.
Councilmember McCormick said he checked the dumpster and refuse containers for other convenience stores like the 7-Eleven and Quik Stop and they had this configuration; a 4-yard cart and a 2-yard cart and a 64-gallon green can, and you cannot fit a dumpster up an elevator in the back and through the store.
Mr. Ibrahim said not a big dumpster, but they can fit the 96-gallon or the 64-gallon.
Councilmember McCormick said he is hearing from the garbage company that this is not a configuration that a convenience store needs. He said he owns a business in town with much less traffic than this proposed store. They do not serve food and they have enough recycling to fill the 4-yard dumpster that Republic Services talked about. So, he asked why this convenience store does not follow the typical convenience store pattern or any other business.
Mr. Ibrahim said they will discuss this with the recycling company and instead of doing 2 services per week they can do 4 services per week, so their bin will be smaller.
City Council Meeting Page 23 of 40 July 22, 2024
Councilmember McCormick said this is not really the way it works. He is a business in town and knows how that works. They contract for a certain amount, and it will be served like all other convenience stores he would imagine. He also questions that if serving food, coffees, etc. in the place of business you would want to drag a bin of any kind through the store. They would not do that in their store and their refuse is much cleaner than in a store that processes food.
Mr. Ibrahim said there is no consumption of food in the store. Councilmember McCormick said there will be a coffee bar. Mr. Ibrahim said there will be a coffee bar to purchase the coffee and leave. There is no seating. Councilmember McCormick said they saw seats on the sketch for the bar. Mr. Ibrahim said these are pictures he got from the owner as an example of the interior. There will be no seats inside.
Councilmember McCormick said therefore, Mr. Ibrahim is denying they will have the same landfill, recycling and green waste requirements that all the other convenience stores that the garbage company services. It will be less. Mr. Ibrahim said what he is saying is they can increase the services per week and instead of 2 per week, they can do 4 per week and they can utilize the bin size they have been utilizing today.
Councilmember McCormick said assuming they will have pickups 4 to 6 days a week, the contention is that they will take it up the elevator and take it through the store to the front of the store in the morning.
He asked how long it will be in the front of the store. Mr. Ibrahim said he was not sure.
Councilmember McCormick again said they have a business, and the business pickup is different than residential pickup which tends to be pretty precise, coming at 6:30 every Monday. His business pickup ranges between 6 a.m. and 11 a.m. daily. They get theirs twice a week almost like every other business he is aware of. So, they will have bins in front of the store that have green waste, recycling and garbage out there until it is picked up every day. Mr. Ibrahim said this is what they are doing in the business office right now. During pickup time, it is out in the front.
Councilmember McCormick said he noticed they were out in front of the store all day today. They were there when he drove to work and there when he drove home before this meeting. He asked if they do not consider multiple bins in front of the store and having to wait for pickup as a nuisance to the local neighborhood. Mr. Ibrahim said he was not sure how they will manage that. He guessed they will make sure when the truck comes and have the bin now. Councilmember McCormick said they do not know when the truck comes because he has a service for his business.
Vice Mayor Kwok referred to the use of 20-foot vehicles for delivery. He knows in one submission the engineer had a drawing to show how that could be done behind the building and turn-around. The traffic engineer confirmed.
Vice Mayor Kwok asked if the 20-foot vehicle the total length or he asked if it is a 20-food box truck that has another 6-foot cab that may be 26 feet. The traffic engineer confirmed the 20 feet is the total length of the delivery truck.
Vice Mayor Kwok said he saw this was asked in previous PC meetings that because the owner is in the business of convenience stores, they have the ability to plan and ask vendors to use these smaller trucks, and he asked if this would be adhered to and that therefore, the design would work 100% of the time or, he asked if the vendor could come with a much bigger truck.
City Council Meeting Page 24 of 40 July 22, 2024
The traffic engineer stated usually the owners, depending on the complexity of the site, make an agreement and arrangement with the suppliers to deliver the goods in a specific type of vehicle. The proposed site does not have the capability to handle big rigs, which is a 40-foot truck. The site will not allow for this.
Vice Mayor Kwok said the engineer did the calculation for a 20-foot truck. He asked if it could go to 22, 24, 26, or 28 feet. The traffic engineer said they will have to check into it, but for right now, the way the site is designed is to have delivery trucks not exceeding 20 feet. He elaborated, stating they had the discussion with the property owner, and he will enforce all his suppliers to use 20-foot trucks, even when they were proposing the Circle K. He will be able to do that and committed to doing that.
Vice Mayor Kwok said he heard that 2 to 4 times a week there will be deliveries or more and asked what times of day deliveries will be done, given the owner will be next door. The traffic engineer said usually deliveries come when there is not much traffic in the middle of the day, but he does not know the schedule. The owner is next door, and he is monitoring this. He went through this process with the City since 2021 and he will be enforcing this.
Vice Mayor Kwok said he heard some different numbers on opening hours and asked if the hours are from 5 a.m. to 11 p.m. or he asked if it was from 7 a.m. to 11 p.m. The traffic engineer said he did not recall the condition of approval, and Mr. Saffouri said it is 5 a.m. to 11 p.m. and 7 a.m. to 7 p.m. are delivery times.
Vice Mayor Kwok said on COA #8 it states the general hours of operation shall be limited to 7 a.m. to 11 p.m. Ms. Tolle stated this is correct and a COA that staff is recommending. Mr. Saffouri said what they are currently proposing, but staff is recommending 7 a.m.
Mr. Saffouri said they will comply with what staff is recommending.
BREAK
Vice Mayor Kwok called for a break at 9:32 p.m. and thereafter reconvened the meeting at 9:39 p.m.
Vice Mayor Kwok opened the public comment period.
ANNE MAGRATH COLEMAN ceded her time to BILL MAGRATH
BILL MAGRATH said he is one of three members of the Magrath family that are the second generation that owns Diamond K. Somewhere in the audience, his sister, Anne Magrath Coleman is here, and she is the Vice President, and she may have met Councilmembers during the March meeting. He cannot be there tonight and is on a business trip. He wrote a long letter and apologized for its length and appreciates Councilmember Anduri saying the Council reads everything that is submitted. This is an important issue to Diamond K.
He participated in both PC meetings, wished the Council could have been there to hear the thoughtful comments from the public as well as the Commissioners as they spoke and ultimately rejected this application on a 4-1 vote. It was painful for the owner of the business who is a nice gentleman, but it is just the business he is proposing at this location is going to require too many daily traffic trips when there are only 3 regular parking places in front, plus 4 more in front of Diamond K.
City Council Meeting Page 25 of 40 July 22, 2024
There are only 7 parking spaces here. When it was called Circle K they wanted to point out that the “K” is a simple coincidence. Diamond K has nothing to do with Circle K. The original owner’s last name was Keisel with a “K.” They are worried and very surprised that the City staff did not follow the recommendation that came from the PC. He realizes there can be disagreements, but he thought the PC gave this a very thorough review.
He did not want to cover each of the issues outlined in his letter, but pointed out that he was shocked when he first read the traffic report which, on page 4, talks about 614 daily trips. Councilmember Anduri asked the question—what is the difference. When looking at page 22 of the traffic report and this is a reputable traffic expert. They read the traffic manual and use the manual and concluded there are 1,574 daily trips. The reason they are talking about 614 or 1,574 is because if you are at the Lafayette Reservoir and driving through Lafayette to go to the Lafayette Library and you decide to stop in at the convenience market, they do not count that because it is a pass-through stop. But Diamond K counts it because that is a new car pulling into a diagonal parking spot that is just 4 doors down from the front door of their store and there are only 7 parking spaces there. So, there are 1,574 people parking there even though they say 600 trips to the convenience market and then you drive home. What is more important is he knows the owner believes it is only going to have 300, but the experts say differently. That is the record the Council has in front of them, and that the PC relied on.
Regarding parking in the rear, there are legal parking spaces in the rear of the building, but the City has decided they do not want anyone driving back there to take those parking spaces to use the elevator to go in the back door. Instead, they have forced all 1,574 daily trips to park in 3 parking spaces or the 4 parking spaces in front of his business which, frankly, will fill up. In his letter, he did the math. If you divide 1,574 by 18 hours or now 16 hours, you are talking about literally 90 parking space trips each hour and during prime hours, it is 2 per minute. Frankly, all the parking will fill up, which is their concern, leaving no parking. He knows the architect said if there is no parking, people will drive on and it is not a big deal.
It is his business because he needs every single customer to keep his doors open. He does not get 1,500 customers coming by Diamond K. If his parking is full, his customers who are wonderful customers who have been at his store for 88 years drive on.
He also wants to talk about the U-turn. The traffic expert says 60% of the traffic will come from the east which means they have to drive north of the landscaped island and then make a U-turn in front of his store. He sees people make U-turns there all the time and does not think there is a restrictive sign, and if they had to go down to the traffic light, it might make it easier, but this is going to add 900 U-turns in front of his store which will clog westbound traffic and it will have to merge into crowded eastbound traffic where there is a narrow, two lanes and a bike lane.
Regarding diagonal parking, his mother used to back out of those diagonal parking spaces whenever she was there, and it would scare them to death because all they would hear is wild honking from people in the traffic lanes. She would just back out and drive on. Lastly, he believes the Council cannot make findings A and E.
Councilmember Anduri asked if Mr. Magrath has employee parking spaces on their property. Mr. Magrath said in the southeast corner, they have cleared out the area to provide for employee parking in their backyard. They have not had employee parking in the past, but they will commit to providing this so employees will not take up these parking spaces.
City Council Meeting Page 26 of 40 July 22, 2024
Councilmember Anduri asked if employees now are parking in front of the building. Mr. Magrath said yes, they have been parking in front of the building over the last several years, but now that this issue has come up, they have already cleared out the area behind their building for employee parking.
Councilmember Anduri asked how many customers per day does Diamond K have. He asked if they are open Monday through Friday, 7 a.m. to 3:30 p.m.
Mr. Magrath confirmed and said he cannot provide a daily count of customers, but he said their numbers have been fairly routine. He would venture to say they might have 100 customers a day, maybe as many as 150 on some Mondays when many landscapers appear and get materials for their week, but they do not have hundreds of people parking. Generally, they are in the store for 20 minutes at a maximum. They say hello, greet them, and then they buy supplies and are out the door.
Councilmember Anduri asked if generally they park in the spaces in front of the store. Mr. Magrath confirmed and said they want these spaces open for the customers because they have many senior customers. The applicant said it is not a big deal if the parking spaces are full, but he wants the parking spaces open for their customers and do not want them buying coffee next door.
ANDY BETTS said they were originally talking about trucks, and he has experience with trailers coming as a standard 20 feet or 28 feet, 40, 45, 48 and 54 feet. So, a 20-foot trailer is pretty standard which is just the trailer. Coming in tonight, he drove by 7-Eleven and there is a truck and delivery trailer backed into 7-Eleven straddling the sidewalk so people walking have to go out into the street to be able to go around the truck. This is what they run into Trader Joe’s as they discussed before. They must do crazy things to pull a truck up on Mountainview, back into the parking lot, pull back out on Mountainview and then back into their space alongside parked cars and people walking all over. It is very dangerous. There is the same thing with Diamond K which also has their larger deliveries with bigger rocks, pallets of brick will park alongside them actually on the sidewalk with a forklift going back and forth on the sidewalk. So, they already have enough of those in their neighborhood. They also mentioned Starbucks which is also known to park in the middle of the street, and no one is able to write them up.
Going down the danger side of it, Wickipedia.org shows under “convenience store crime” that in some cities convenience store crime has become such a problem that special task forces have been created or some stores have had to be completely closed down. He also noted a number of robberies in the U.S. in 2022 by location, convenience stores was listed as number four on the list with 10,751 and it has increased in 2023. So, he disagrees completely with what the Chief said. That is not what the Internet and many statistics say. The last statistic was statista.com so this shows crime, and many are from the FBI. The Council hit the head on the garbage can. He does not know how they will manage that. As a business owner, his cans are almost impossible to move at 3 yards and 4 yards.
TRUDY MOORE said she is a homeowner nearby and speaking as a homeowner but also as the President of the Lafayette Mountainview HOA. There are many reasons all of their homeowners of the HOA object to the convenience store. One issue is crime. She asked to display a statement which she read from.
City Council Meeting Page 27 of 40 July 22, 2024
“There is a well-established correlation between convenience stores and crime. The FBI reported that for the year 2019, convenience store robberies made up 6.6% of all robberies. In a multi-state study funded by the DOJ convenience store robberies had near the highest prevalence of workplace homicide. These stores are common targets for armed robberies due to their accessibility, cash on hand, and easy getaways. Here in Lafayette, it is straight shot onto the freeway through the tunnel for criminals, something residents have become all too familiar with in recent years. These pursuits endanger the community, the roads, and they are a terrible disturbance of the peace.
These types of robberies are nearly always armed robberies, bringing armed criminals into the area and endangering the safety of citizens, both in the commission of the robbery and the subsequent escape. Desperate criminals escape at high speeds, crash cars and will jump into backyards of homeowners when being pursued. In just the last year, the 7-Eleven on the other side of town has been robbed at gunpoint twice. September 11, 2022: Thieves tried to steal the ATM at the KWIK Stop Shop in Lafayette. December 9, 20222: A group believed to be six males wearing COVID style masks and hoodies swarmed an employee at the 7-Eleven Store on Pleasant Hill Road in Pleasant Hill at 4:57 p.m. and then struck at the Lafayette 7-Eleven at 3347 Mt. Diablo Boulevard at 5:22 a.m. May 5, 2023: A crew of armed robbers robbed the 7-Eleven store of 3347 Mt. Diablo Boulevard early Saturday brandishing guns and making off with several hundred dollars in cash and store merchandise. The trio, all armed with handguns struck at 12:53 a.m. No injuries reported. February 17, 2024: Two men entered the Lafayette 7-Eleven on Mt. Diablo Boulevard Saturday, one purchasing an item to get the clerk to open the till and the second man coming in and stealing an undetermined amount of cash.”
While it sounds comforting that the very nice owner works next door, neither his presence nearby nor cameras in the store can stop crime going on.
NICOLE GARRETT HOPPE said she lives on the west side and walks this space once or twice a week, so she is very familiar with what is going on. Although she is not here for this, it is something she is concerned about now and she thinks there is a big safety issue on the pedestrian side. There is a blind corner of a driveway that goes down where there is the parking lot and if this is going to be a very busy space with garbage, deliveries, and people, people in a car will not be able to back out or get in there, or for a pedestrian crossing over it will be difficult.
She has a major concern also about what is being sold. This is a big family community. She does not like the hours for open until 11 p.m. Everything closes in town very early and it makes it hard for young people to purchase items they should not be purchasing illegally. She also remembers something about the smoke shop that was in Lafayette in the downtown area and there was a ban on e-cigarettes. Her concern is selling these cigarettes at these shops for kids because it will be a nice place for them to go. Therefore, her main concerns are safety, hours, what they will sell, and she does not feel it is a community builder place. By the pictures she saw, it did not even look like they did much to the outside in aesthetic value and design, especially with the beautiful new condominium development.
City Council Meeting Page 28 of 40 July 22, 2024
JENNIFER SUTHERLAND, encouraged the Council to continue to deny the application of the Circle K/Fast Fill project at 3667 Mt. Diablo Boulevard. To approve this application, the City Council must make findings for a land use permit as described below. A land use permit may be granted only when the proposed land use: a) is not detrimental to the health and safety and general welfare of the City. This project is detrimental to the health and safety and general welfare of the City. This project is a detriment to the neighborhood surrounding the proposed business. It also affects the general welfare of the City with the other small businesses that are close by. Think of Panache and 360 Burrito; b) will not adversely affect the orderly development of property within the City. It will adversely affect the development of the property within the City.
She knows they are “exempt” from CEQA due to them stating it is a commercial building being replaced by another commercial building, but it is an office building that is not becoming another office building. It is becoming a grocery store. If the owner really wants to open a Circle K/Fast Fill in Lafayette, the old Walgreen’s is open, and she asked them to go there. If the store is replacing a store, that is actually in a downtown area, and she could have supported that; e) will not create a nuisance or enforcement problems within the neighborhood. It is a nuisance to have a business open until 11 p.m. It will be a nuisance for deliveries to the neighbors.
She asked if the Council has not already, go and look at the driveway they plan to have deliveries go down.
If she is correct, it is stated it is 11 feet by 6 feet which is very small. She believes the measurements of the driveways are very generous. She asked to look how close trucks will be next to the building. Garbage will be a nuisance because it will block parking multiple times a week because they cannot go down the driveway. The Circle K/Fast Fill will be a nuisance. Also, if in the area at 9 p.m. not much is going on because it is at the edge of a residential area; f) will not encourage marginal development within the neighborhood.
It will. Where they live is on the border of downtown and residential. This project is creating sprawl of the downtown area; g) It is consistent with the purpose and section of the zoning district in which it was located. She knows this property is zoned for commercial use and it is currently an office building but is not being replaced by another office building. In previous documents, Mr. Ibrahim stated that the owner owns many Circle K’s and has experience with them. This is why they want to open a Circle K here and they think it is going to be very successful. There is a residential project coming across the street with 66 condos. She lives in this neighborhood and will not make quick stops there. She is going to Trader Joe’s, CVS, or she is going to Diablo Foods and not Circle K/Fast Fill.
CHERYL MACDONALD said the previous speaker explained a lot of what residents are feeling. The PC did an amazing job in two meetings deliberating very hard, with serious thought and she thinks the recommendation they came up with after two meetings with and without residents ended up at a 4-1 vote in denial of this request. They thought very hard, were well-rounded and the Chair works in this field, so she thinks his views really count as to what will happen with delivery trucks. She thinks many people will end up going to CVS and other stores mentioned and thinks this should be denied and that the Council should follow the PC’s recommendations.
PAULA HENSLEY said she sent in a letter objecting to this appeal by the owners of Circle K/Fast Fill. There is an objection because of the issue about Fast Fill and some of the facts and suppositions, speculation by the appellant here which was not even presented to the PC, so procedurally that strikes her as a little unusual. They strongly opposed and object to this permit proposal. First, this type of convenience store is not a service essential to this residential area. She took note that the staff report, which she was disappointed in as well as others, had a lot of broad brush and in her mind, limitation of actual facts that could be verified in the report as presented.
City Council Meeting Page 29 of 40 July 22, 2024
There seems to be nothing she has heard from the owner making this appeal that would indicate that there is any change in terms of the PC’s view that this convenience store would, in fact, be detrimental to the health, safety, and welfare of this area of Lafayette. It may be mixed commercial use, but in fact, it is highly residential as they know from the Lennar project that is not yet complete across the street, as they know from the condominiums up on the hill, and to the west of the Lennar project, as well as the residents of Lafayette Mountainview HOA of which she is a member. They are strongly opposed.
Her residence directly abuts the property of this proposed convenience store. They are right behind it and contiguous with what would be an area with heavy trucks loading and unloading. It would be impossible to control the vendors even though there might be some idea being presented tonight by the applicant or appellant that they can control it. She finds the size of the truck actually very surprising that could be enforced and anyone in retail knows that vendors deliver anytime they can. In summary, she opposes the changes in hours of 7 a.m. to 11 p.m. and incorporated all objections that were presented by speakers.
Rebuttal – Applicant
Mr. Ibrahim, architect, said in the break he spoke with the owner, and he wanted to answer some of the questions he was not clear about. There are no vaping pens being sold in the store, no hard liquor, the owner has been using 96-gallon containers and he will continue using that size and will increase the number 4 which he believes will be enough for him. He heard from the neighbors that the store they are proposing could be substituted by Trader Joe’s, Safeway or other stores. The customer type of these stores is different than customer types for this store. This store is for customers that do not have time. They have 5 minutes, get in and get milk, drink, or some snacks and leave. If people try to do that going to Trader Joe’s, people need 15 minutes. With that said, the west side of Lafayette has no convenience store. The east side has one, so this will be convenient for residents who will be living in the apartments. Many people will be able to walk across the street, get something and go back.
Hussein Saffouri, Attorney, said he would like to address some of the issues raised by the public. There were comments about crime, and he thinks everyone would agree that the Lafayette Police Chief is more authoritative about crime issues than anyone else here, and he is not concerned and has better data than anyone. With regard to parking, parking cannot be a consideration for denial of the project. No one has mentioned this, but there will be parking across the street in the westbound lane with a crosswalk once the light goes in. So, this will be available parking for people going by as well, and they can walk right across and frequent the convenience store.
In terms of the customer base, it will serve the housing going in across the street as well as people driving through this part of Lafayette, either driving, riding their bikes, or walking to and from the Reservoir, which is another customer base that will be served by this store rather than the larger grocery stores up the street. With regard to Mr. Magrath’s comments, he estimated that his store gets about 100 customers a day and this is in line with his client’s estimate that his store will have about 300 customers a day, so while there is traffic data with its numbers, he asked to also consider the actual data for this particular type of store that his client operates and has good data for. This limits the traffic impact there.
City Council Meeting Page 30 of 40 July 22, 2024
Finally, he asked not to lose sight of the fact that this project has been designed from the onset to ensure deliveries will be off-street and it will have the loading zone in the back in order to ensure there is no double parking in front of the store. Unfortunately, the storesthat are brought up and raised in comments are ones that do not have that type of a solution. Additionally, the issue of large trucks will not be a problem because they will ensure they are only using small trucks because it is the only way it is going to work, so traffic solutions are built into the project from the onset. In conclusion, if there are any other questions he is happy to address them.
Councilmember McCormick said Mr. Ibrahim confirmed there are no vaping products, no e-cigarette products, and there will be regular cigarettes, and also no hard liquor. They will have beer and wine. His client would like to carry a higher end mix of wines and beers from local breweries.
Councilmember McCormick referred to the delivery side, there are multiple brands coming in on the deliveries, but it is a one-truck. He asked how that will work because unless you go through one distributor that has all brands the store will carry, he asked how they will be able to control the pace of deliveries.
Mr. Saffouri said there are some distributors that will be providing multiple products so that will limit the number of vendors used. Arrangements will be made with any and all vendors to ensure they only deliver with smaller trucks. Given his client operates a number of convenience stores around the state, he has good relationships with vendors to where he can enter into contracts with them that require them to meet certain conditions.
Councilmember McCormick said it was noted there will be different products that they sell in other stores, so he asked if this wouldn’t imply different vendors. There will be unique, high-end, Napa wines, etc.
Mr. Ibrahim said they indicated their client has been in this business for a long time and he has a wide relationship with vendors. He told them that he will make his special deliveries to the store with a truck 20 feet long. It will not be a trailer but a truck such as GMC 2500 type or so that can go in the back of the store.
Mr. Saffouri said in his experience with other stores the relationships are with the distributors, and they will have a menu of different levels of quality.
Vice Mayor Kwok referred to garbage and said there was the 96-gallon containers times 4, and Mr. Ibrahim said the owner said he can increase the number to a total of 4 bins. They stack the bins like other businesses in Lafayette do at the time of delivery.
Mr. Saffouri added that a question was asked whether placing garbage cans out front for delivery would constitute a nuisance, and Mr. Ibrahim points out that other businesses do that. This is a fact and unless they have a large, industrial-sized bin the normal course of things is for garbage cans to be rolled out to the curb and placed waiting for the garbage service to come and pick them up. They sit there throughout business districts and residential neighbors all over the U.S. until they get picked up later that day. So, it is a normal course of events and not a nuisance. It is how things get done and as long as they are kept in a sanitary way and not overflowing, there is no nuisance being caused there.
City Council Meeting Page 31 of 40 July 22, 2024
Vice Mayor Kwok close the public hearing and called for deliberations. He said in the PowerPoint presentation, there was a slide about the findings, and he asked staff to bring this up. Today, many public comments have been heard about a wide range of issues, with Councilmembers bringing up a wide range of issues, as well, and some of the issues discussed may or may not be relevant to the business at hand, which is to look at legal issues around these findings. They are talking about a land use permit that could be granted only when the proposed land use complies with these conditions.
Councilmember Anduri asked if the developer of the Brandt ever provide a comment on this application.
Ms. Tolle replied no, but they were notified of the hearings.
Councilmember Anduri said in terms of the Brandt development, his understanding is that on the northwest corner of Mt. Diablo Boulevard and Dolores that space will be a brew pub and he asked if that is correct. Also, his understanding is that they applied to the PC for a change so they could have more outdoor space because part of the indoor space was going to be taken up with the brew part of the brew pub.
Mr. Wolff said the tenant of the brewery and restaurant did apply to the DRC for some modifications to the exterior and they expanded their outdoor seating beyond what was previously approved.
Councilmember Anduri asked if it is correct that there is no parking requirement for that restaurant. Mr.
Wolff said the project was approved prior to AB 2097 going into effect and the project provides parking for the residential component and the commercial component in a garage below the buildings.
Councilmember Anduri asked if the tenant’s application for the brew pub included a specification of hours.
Mr. Wolff said it was purely a design application, given the use is a permitted use by right. There was not a discussion about hours of operation. Councilmember Anduri asked if they could have any hours of operations, and Mr. Wolff said he would need to refer to the code for hour limitations on restaurant uses.
He thinks from experience, they tend to close on the earlier side and certainly by 11 p.m.
Councilmember Anduri referred to the other commercial space at the Brandt and asked if there is a tenant for that. Mr. Wolff said not to his knowledge.
Councilmember Anduri said his understanding is the applicant cannot provide customer parking in the back. Ms. Tolle said the applicant’s project engineer recommended against using the rear parking lot for employees, and staff is recommending a condition to disallow public parking in the rear lot.
Councilmember Anduri said if Diamond K wanted to have a customer parking on their off-street parking on their property, he asked if there would be any restriction on doing that. Mr. Wolff said no, not to his knowledge. To be clear, the rationale behind restricting customer parking behind the subject application building is because the driveway is too narrow for two-way traffic.
Councilmember Anduri referred to the parking in front of the Brandt on the north side of the street and asked what was the anticipated usage of that parking and asked who is expected to use that parking.
Mr. Wolff said it is public street parking to support the brew pub, the second commercial space, visitors to the building, and any public parking use.
Councilmember Anduri said the parking lot for Desco Plaza and asked if this cannot be used by customers of other businesses. Mr. Wolff confirmed it is private property.
City Council Meeting Page 32 of 40 July 22, 2024
Vice Mayor Kwok confirmed there were no other questions.
Councilmember McCormick said he still has significant concerns about the garbage. He knows this may seem like a small point, but he has a hard time getting across for what that will mean for conditions of the property if the applicant will not use dumpsters as is typical and use bins. The number of bins goes up dramatically. The 2-year dumpster which is standard for convenience stores goes up to 4, 96-gallon bins and the 4-yard dumpster which is also standard for convenience stores goes up to 8 bins. So, there will be 12, 96-gallon bins, not including green waste that the applicant is saying will either be every day or 3 or 4 times a week. This is a significant number of cans lined up there. He has serious doubts they will pull the bins through the store, as he would not pull their bins through their house.
He asked why they would pull bins through a store where people are getting coffee, pastries, etc. and it seems impossible that would be the case. The alternative would be to go down the driveway, which is dangerous and recommended against, and the other successful convenience stores they see in town have dumpsters set to the side of the stores where there is easy access for the Republic Services trucks, and that is how restaurants, convenience stores are doing it and it is the best practice. He sees no evidence that the nature of the property does not allow the proper disposal of garbage, recycling, and of green waste. There is a significant amount in any business, much less one that is dealing with food that expires and must be thrown out regularly and it is a significant concern that unfortunately, the nature of the building and the thought of having 12 or 16 cans going up and down the elevator on the back of the building every day in the middle of the day seems suspect.
Councilmember Candell said she appreciates Councilmember McCormick bringing up the garbage. She is laughing because Cheryl Macdonald brings up garbage at every new residential project the Councils faces.
So, for some reason they did not consider it on this one and they do for all housing projects and then for this commercial project they kind of missed it, so she is thankful it was brought up. She read this as a de novo hearing and read it cold and then went back and looked at the PC information, and the only words that she can come up with this site is that it is too constrained, and the garbage issue just puts it over the top. It is not just right but it is not sanitary and possibly might not even be allowed. This would be a health and safety issue they would definitely want to find out about. It is not nice, and it is probably not healthy, and the site is so constrained. She has trouble with making at least 2 of the findings. When she read the PC’s notes and all of their deliberation, she felt the same way as them about this site. She is sad about that and not happy because she loves adding new businesses to the town, but this particular site for this particular use seems way too constrained to make it work and function correctly and safely for everyone in Lafayette.
Vice Mayor Kwok asked which item is garbage under and Councilmember Candell said she puts it under A; health and safety. Councilmember McCormick agreed and he was originally thinking it as a nuisance.
The applicant makes a point that there are garbage cans out in front so there is a nuisance. He thinks 2 garbage cans out in front may not be a nuisance. He worries with a dozen or even 8 or however many as it would be difficult to get them into the store because they cannot go westbound because of the driveway and east is the door. So, A would be his candidate for that.
Councilmember Anduri asked if the City is requiring that the bins be brought through the store. It is COA #11; Bins shall be kept behind the store in the designated storage area. Bins shall not be stored in front of the store unless for pickup. Bins shall be taken up the lift and through the store to keep employees out of the drive aisle.
City Council Meeting Page 33 of 40 July 22, 2024
Ms. Tolle said this is consistent with recommendations from the project’s traffic engineer to not use the drive aisle for anything other than entering and existing vehicles.
Mr. Wolff said the condition is predicated on what the applicant’s proposal was, so staff did not initiate that. Staff is mimicking what the proposal is to memorialize that in the COA’s.
Councilmember Anduri asked if what happens in the store is a concern, because people are bringing the bins through the store. Councilmember Candell said yes, this is part of her concern as a health and safety issue because this is where the safety problem lies. They will have to drag them through the store because they are not supposed to be going up the driveway. She cannot imagine 3-day old garbage cans coming through the store. She saw chairs and a coffee bar and sees food being served there, and she does not know any other store that drags their garbage cans through their store.
Councilmember Anduri asked if the inside of the store the Council’s issue or he asked if that is an actual health concern and he agrees it is not the greatest customer service experience. He assumed Councilmember McCormick’s concern is the number of bins sitting out on the sidewalk. Councilmember McCormick said yes, that is kind of the nuisance side. There are two sides; the health and safety and the nuisance side where he thinks they are under-estimating. He heard nothing that would not lead him to believe they would have the same requirements as all the other convenience stores in town. They are under-estimating the volume. If they are preventing for safety reasons trying to drag large dumpsters or bins up that steep driveway, they have to go through the store, and he does not see how that is so. Then, when they are in front of the store, they can be there for an extended period of time because of the irregularities of business pickup. It is a different service than residential pickup that cannot be anticipated.
They could not have a dumpster, so they have to go with bins, but there will be a lot of them.
Councilmember Anduri said most businesses have bins in the back and the pickup can take place in the back. Councilmember McCormick said their business does, restaurants do, and other convenience stores in town do. There is a separate enclosed area, and they roll out and then they are emptied and rolled back into the enclosed area.
Councilmember Anduri said the applicant has said they do not want to allow the pickup trucks to go to the back of the store. Ms. Tolle said Republic Services requires a minimum of 12 feet clearance for their trucks so it would not fit.
Councilmember Anduri said it is coming back to the constrained site. Councilmember McCormick agreed, and said he checked on the trucks to see if it was possible for the garbage trucks to go down and their trucks are 12 feet wide, and the business has an 11-foot entrance, so it is not physically possible. They also need more clearance than most to back up. They will not do anything where they have to back up and so there is not enough room down below anyway even if they could get down there to properly reorient the truck to exit much less the pedestrian safety coming in and out of that.
Vice Mayor Kwok said as he said earlier, he like Councilmember Candell views this as a de novo hearing and so they look at it anew. He also watched and read through the PC work, and he feels they raised and discussed every pertinent issue and had a very robust and intelligent discussion on many of the different views, many of which came up during this session. He thinks they struggled with coming to an agreement on how to vote on the matter. They cited findings A and E and some of the key issues being parking and perhaps the trucks parking in the front and creating a nuisance.
City Council Meeting Page 34 of 40 July 22, 2024
He also came into this as not wanting to listen and hear the whole case and did not know how he was going to vote and in listening to the conversations here, he thinks some are the applicant’s decision to run their business in a certain way and it is quite challenging, but he questioned if it is legal. He tries to wear the lens of whether this is a legal use of the space by an owner of the building. They have a right to do things and if the City allows things to be done if these are permissible uses, then it is not his business of what will be sold in the store, not what they will name their store, whether it is high-end, low-end, and to him, it is whether it complies or not and whether it meets the City’s General Plan. Staff has opined that at least from the metrics it is looking at, it meets the General Plan, what they are planning to sell, and hours are all legally compliant, so this is his focus as to the legal rights of this owner to develop on their property and whether any of the activities contemplated infringe on A through G to the point it would be a problem.
He knows the problem with the words “create a nuisance” is relative because the word “nuisance” which the PC struggled with he thinks is where it comes to interpretation like what Mr. Wolff said.
To him, the word “nuisance” is relative to everybody else running a business on Mt. Diablo Boulevard.
There are trucks parked in the middle of the street and blocking it and this applicant has already made extra efforts to put it behind. So, he feels they are going over and above everybody else on the street who might be blocking to accommodate for that. When he saw the conditions of approval that ‘you must use the back.’ He asked if this is what they are telling everybody else on Mt. Diablo and are they going to require that of every future applicant. This is already a rule where you should not block the street. So, he is trying to think of what is fair to this applicant in terms of the bar they say what is a “nuisance.” If they are only doing the same amount of nuisance as what is happening already then he thinks it is relatively speaking it is not higher than the noise level.
He would say the same as to the parking. He definitely appreciates that the neighbors and Diamond K next door have very limited parking. There will only be 7 spaces and now they are competing for parking; however, as was pointed out by the PC, parking is a public amenity and not a private amenity and the Council is not here to favor one business over the other. It is first come, first served, and so the fact there will be a lot more cars is for sure. This will be challenging for Diamond K, but he does not think that is a lens he can make a decision on. This is public parking, first come, first served, and that is not an issue he weighs in terms of the amount of parking.
He thinks the fact there could be parking in the back probably does not matter if the Council permitted it because there are 8 spaces. If you are a customer and you see an empty spot there, you’ll park and if all of them are full, they probably will not drive into the back lot there. So, he thinks this is a challenging and difficult space to have retail businesses, but if an owner wants to do it and try it, then he would find that is a business decision. If they can haul their trash through the store which he also finds questionable, but he does not know it is the jurisdiction of the City Council to find that. They will need to follow all of the rules and will have to comply. Otherwise, there would be rules against it. He does not know he would feel comfortable coming to that finding; that this method of doing it is impossible. This is a problem for the owner to have to figure out.
Therefore, in light of commentary, he does not have any new findings he would say and is willing to support the staff recommendation. He thinks it is a very challenging business to do and is not sure whether it is going to work, but he thinks they have the right to try that as long as they are compliant in every measure. Ultimately, that is where staff has tried to read the letter of the law of are they compliant and he is satisfied.
City Council Meeting Page 35 of 40 July 22, 2024
Councilmember Anduri said he thinks Vice Mayor Kwok has pointed out what is very difficult about this.
There are so many things to analyze and what the Council can really comment on, and the question is whether this is a business that will be successful in this area. He does not think so, but this is not for the Council to decide. Is this a business if he were choosing as the best-looking business for the neighborhood or most useful, this is not the business he would pick but again, this is not for the Council to decide. He is trying to figure out what is in the Council’s purview.
There is one statement under Analysis; The property is in the General Commercial zoning district which allows convenience market activity upon approval of a land use permit to ensure the specific use is compatible with the surrounding uses and will not cause undo negative impacts which cannot be sufficiently mitigated. He asked if that sentence adds anything to what the Council needs defined because that seems to be a broader statement because you have to “find that it does not detrimental to health, safety, and general welfare and it will not create a nuisance or enforcement problem.” He asked if this comes from the language of an ordinance.
Mr. Wolff said this was staff’s attempt to characterize the nature between a use permitted by right and one which is subject to a land use permit. Those that are subject to a land use permit may or may not be compatible with the location, pattern of development, operational characteristics, etc. based upon noise, vibration, smells, odors, circulation, delivery, trash, etc. So, there are considerations around those conditional uses that, depending on how they are compiled and operational characteristics, yield in the hearing body’s determination whether or not they are consistent with the uses permitted by right. So, regarding whether that adds to what the Council has to find, he would say it does not, given the characterization of the use permit process.
Councilmember Anduri said in looking at the neighborhood, what will be a nuisance is a relevant question and it depends on what is in the neighborhood. There will be across the street another business that most likely will be open until 11 p.m. There will be another business which could be a mini-convenience store in the Brandt; the second commercial area. But there will be another commercial business within a residential area so he does not see per se a convenience store like this being something the Council would say is a nuisance. They have limited the hours to 7 a.m. to 11 p.m. so this takes away a lot of the potential nuisance value.
In terms of traffic, in reading the traffic report in terms of the U-turns he is satisfied to the extent he can understand the traffic report that will not create a traffic nuisance even with the westbound traffic turning around to get into it. In terms of the parking, he knows all businesses would like to have all parking out in front of the business but there will be parking across the street which is conceivable for someone to park there and come over to businesses on the south side of the street. He can see the Council approving this and then coming back. If there are people parking in these parking spaces and are parking all day, the Council might come back and determine whether they can provide for a shorter parking period. But he does not see parking as a justification for finding this to be a nuisance.
So, the only thing that seems like a nuisance to him is the bins out in front 2 days a week and they do not know how long they will be out there. He asked if this is something the Council would turn down an application for because they have garbage cans in front of the store. He asked if the City has done that before.
Mr. Wolff said he does not know that the PC or Council has considered that matter previously through any use permit process. This is the first-time staff has run across the issue so there is not a precedent one way or the other.
City Council Meeting Page 36 of 40 July 22, 2024
Councilmember Anduri said he does not think this is the ideal business, but it is not up to the Council to decide what is ideal. He does not see a way to find that this is detrimental to the health, safety, and general welfare of the City and is not sure this would create a nuisance or enforcement problem, but he would like to make sure if trucks double park in front that they can come back and revoke the permit if that gets to be a problem.
Councilmember McCormick said he appreciates the comments, said he views it slightly different because while there are concerns, they just have to deal with it. He views their charter with A and E. They cannot just say they do not know what will happen. They can see what is going on and he is not satisfied there is mitigation. The plan seems constrained and does not seem overall particularly well thought out. There are many assertions going on with the number of customers that could be walking where there are no facts, so it feels like they are trying to shoehorn a certain usage into a space just because it is next to the owner of the company. It just feels like it is not a good use. When he looks and anticipates, he thinks there will be safety and welfare issues for the City and he anticipates nuisances.
Vice Mayor Kwok asked if it is related to garbage. Councilmember McCormick said the handling of the garbage is not just a little thing. It is something he deals with every day and there is no precedent in the City for handling it this way up an elevator and through the store and up and down an unsafe driveway.
Vice Mayor Kwok asked on that point, since there are two Councilmembers concerned about the garbage and the City’s requirement that the garbage pass through the building if they could revisit that condition if they were to approve this and, for instance, if they had all garbage in the back and the applicant had a little vehicle where they put the trash on it and drove the vehicle up the ramp and then unloaded that onto there and that was safer for pedestrians, that would overcome the traffic engineer’s concern about a worker pulling up a steep hill. There could be other ways to mitigate rather than requiring the trash to go up the elevator and through the building. He asked if it is too late to change conditions of approval or he asked if they could do something like that. He is not sure this will satisfy Councilmembers, but he is trying to think of ideas that might address the garbage passing through the store issue.
Mr. Wolff said it is not too late to modify the conditions of approval or impose new ones. He thinks the applicant’s engineer commented on the safety risk associated with the bins going up and down the driveway and thus, the applicant proposed to handle that by using the elevator and coming through the building. So, staff memorialized the applicant’s proposal as a condition. So, if it pleases the Council, the applicant’s traffic engineer can speak to the vehicular solution using the driveway instead of personnel on foot and it could inform a revised condition.
Vice Mayor Kwok asked if this is something the applicant’s engineer could speak to now or he asked if this would be done at a future hearing. Mr. Wolff said the Council could do it now or direct the engineer to speak with staff following the meeting and bring it back for another hearing.
Vice Mayor Kwok said if the applicant is prepared to speak on this item, he asked him to do so.
Mr. Ibrahim said what they can do is load up the 96-gallon bins into a small truck and the truck can pull it out. They are not sold on getting the bins through the elevator through the store. They can do it in the morning hours and get them out before customers show up. This way, there are no customers there when the bins are through the store. This will violate their business ethics. Currently, they are pulling the bins up the driveway every service time, but they can load them in a truck and put them by the curb.
City Council Meeting Page 37 of 40 July 22, 2024
Vice Mayor Kwok asked if this is the traffic engineer’s opinion. Mr. Ibrahim said he does not know if he has an opinion about this. This is just a business procedure.
Vice Mayor Kwok said he thought the opinion of the traffic engineer was that it was a safety risk to bring the cans up the narrow alleyway. Mr. Ibrahim said it was not their engineer. When they began the project, staff thought that pedestrians on this narrow alley is problematic. When they developed the project they wanted to separate between pedestrians and vehicles. When they did the presentation, he showed an aerial map showing at least two alleys in the downtown where there is the same thing. There is a narrow allowing one-way driving to the parking lot. They allow customers to go in the back parking lot and pedestrians go back and forth with no issues, but they are trying to go beyond and try to satisfy the process so they can get this to open. So, they have no problem hauling bins on a small truck and pulling them up the driveway to the curb.
Vice Mayor Kwok said he thought staff had said it was the engineer from the applicant’s side that had recommended this, but he is hearing the applicant say that was not part of the recommendation. Mr.
Wolff said that was his understanding, but he knows the City Engineer, in consultation with the applicant team, identified the narrowness of the road and that vehicles and pedestrians using the same space particularly with the steepness of the driveway is a concern and is worth mitigating or avoiding altogether.
Staff will stipulate that there are existing alleyways in the downtown and he believes all of the alleyways are narrow but flat and so the speeds at which one would have conflicting vehicles meet do not have to contend with the steepness, potential speed, and backing up either a steep slope or down a steep slope.
So, avoiding that conflict was the outcome and he believes the proposal was made so staff will memorialize it. He thinks the solution warrants more thought because he is yet not clear on how you manipulate a 96-gallon bin up into a pickup truck bed and back down safely. With a lift gate, that is another story.
Councilmember Candell said she had the same concern and was not sure what that solution looks or feels like, yet which is a bit unresolved.
Vice Mayor Kwok said they were concerned the safety issues around a pedestrian pulling up the bin but if there was a pedestrian and vehicle of some sort that could be moved, that is their problem to figure out, but if the requirement is that the bins must be moved mechanically and not by human, he asked if that would be the condition of approval and acceptable to staff.
Mr. Wolff said staff would want to consider it and bring it back. It seems like it may be a viable solution, but he does not think it has been fully thought out and addresses the concern. He thinks it is worth expanding the conversation with Republic Services and seeing the magnitude with the number of cans as well just to get an understanding of how operationally this is going to function. This is part of the use permit process—understanding the magnitude of the impact or how the use is going to operate.
Vice Mayor Kwok said this was a major concern of at least 2 or more Councilmembers and he thinks it was a condition the City imposed on the applicant by bringing the trash through the building. But, if there was a way not to bring the trash through the building safely, perhaps he could address at least the safety and health concerns.
Councilmember McCormick said he thinks it was the nature of the property. They cannot have pedestrians on the driveway and how to deal with the situation.
City Council Meeting Page 38 of 40 July 22, 2024
Councilmember Anduri said that is still just half of the garbage problem because the other part is on the street.
Councilmember Candell said she would be very comfortable bringing this back, getting staff to work on a solution where the Council can actually look at and understand and get the magnitude of the problem so the Council can decide together.
Councilmember Anduri asked if there is an option other businesses use of making a deal with another business to put the cans on their property. He asked if that could be something they could consider.
Councilmember McCormick said here you have the applicant’s business and Diamond K is the only business there and an apartment building. There is the Mountainview Apartment complex or HOA if they would like garbage cans in front of their property, but he was not sure.
Councilmember Candell agreed with the need to bring this back. For her, it is a big enough problem health and safety-wise to explore this and really look for a real solution and with a condition of approval attached to it.
Councilmember McCormick said a lot has changed in the last few weeks on this and it would be nice to articulate things.
Vice Mayor Kwok said it would be nice to confirm what issue they are going after and if it can be resolved the Council would not come up with new issues next time. If things cannot be resolved, they will vote, and this would be the intent. Regarding the nuisance factor of cans in front of the street, they are on the private property of the property owner and there are many businesses on Mt. Diablo Boulevard, and he would ask that the same standard be applied to all businesses. He does not think it is fair to apply a higher standard to this one business compared to others.
Councilmember McCormick said he wants to be very clear because everything he has talked about is being compared to the existing convenience stores in town.
Vice Mayor Kwok asked about retailers and restaurants. Councilmember McCormick said when thinking about the usage and how it is handled, he is really just comparing it to the other convenience stores because that is the only model they have for what works and does not work. He cannot speak to the quantities. He has experience in his business and how they must deal with a smaller amount and the challenge that is, but the other convenience stores have a different model, and it works, so the Council must ensure that this is something that works.
Mr. Wolff suggested continuing the matter to September 9, 2024, Council meeting.
Councilmember Anduri said if the condition were changed to require the business bring garbage through the store outside of business hours, he asked if that would satisfy Councilmember Candell.
Councilmember Candell said she still struggles with that. She just knows what industrial garbage cans end up looking like over time and she does not see a sanitary situation. They would have to go in and sanitize their floors each time before opening with that many cans over that much time. She used to work in a grocery store which triggered her concerns over the whole garbage issue and over time, it is hard to maintain.
City Council Meeting Page 39 of 40 July 22, 2024
ACTION: It was M/S/C (Candell/McCormick) to continue the hearing to September 9, 2024, with instruction to staff to explore in more detail the garbage solution and draft a COA work with Republic Services for a satisfactory outcome. Vote: 4-0-1 (Ayes: Kwok, Anduri, Candell, and McCormick; Noes:
None; Absent: Dawson).
EXTEND MEETING
ACTION: It was M/S/C (Anduri/Candell) to extend the meeting to 11:30 p.m. Vote: 4-0-1 (Ayes: Kwok, Anduri, Candell, and McCormick; Noes: None; Absent: Dawson).
13. ITEMS REMOVED FROM CONSENT
B. Resolution 2024-29 Establishing Rate of Tax Levy to Provide for Payment of Principal and Interest on the Series 2011 General Obligation Refunding Bonds During Year 2024-2025 Recommendation: Adopt Resolution 2024-29.
LIBBY HENRY said her main difficulty with this is related to transparency. She is one of a few hundred people in Lafayette who keeps track of what is going on in town and she would think 90% of the people in town do not know anything about this property tax. She was here in 1995 when it was voted on, but she would also say many people have moved here since then and it appears like this should be put to a vote.
Councilmember Anduri said this actually is lowering resident taxes, and he deferred to Ms. Robinson to explain this.
Administrative Services Director noted that this bond measure was approved in 1995. The City sold bonds in 1995 which were 30-year bonds which are similar to a mortgage in that they are paid off over time. In 1995, the voters agreed and voted the bond measure in and agreed at the time they would pay a maximum of $21 per $100,000 of assessed value to pay off the bonds over 30 years. This tax has been on people’s property tax bills for the last 29 years. Every year, the amount of that tax decreases because it is based on assessed values of all properties in Lafayette. So, over time the assessed values in Lafayette have grown and because the bond payments remain level, the amount everyone has to pay every year has actually decreased from roughly $21 per $100,000 in 1995 to $4 per $100,000 today.
ACTION: It was M/S/C (Candell/Anduri) to adopt Resolution 2024-29. Vote: 4-0-1 (Ayes: Kwok, Anduri, Candell, and McCormick; Noes: None; Absent: Dawson).
14. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Councilmember Candell referred to public comments about Swimply.com. She asked staff about this earlier and the response was that it is a code enforcement in terms of the City’s noise ordinance. As it has gone on, there may be other avenues to consider. Therefore, she asked if this is something which staff reviews and returns to the Council.
City Council Meeting Page 40 of 40 July 22, 2024
City Manager Srivatsa said staff has begun discussing this internally and she had a conversation with the City Attorney today. It could fall in one of few categories in the code, but the code is not clear on this use because this use was not anticipated when the use was created. Staff can return to the Council with a report. She thinks they would need a month to do so and if it requires a code change, that will take longer but staff will return.
Councilmember Anduri said he strongly supports anything that will not make this possible. He is in the Reliez Valley area and the nature of the hills there is that sound in anyone’s property carries. Even when grandchildren are visiting neighbors he can hear it, and when neighbors have a big party, you hear it. If someone has 50 to 100 people, neighbors will really hear it, and this is something the City needs to address.
Councilmember Anduri said with respect to the gas-powered leaf blower ban, it has only been a few weeks but unless people in the area have terminated their landscaping services, it is much quieter now and amazingly different in his neighborhood. Vice Mayor Kwok agreed and said he saw his neighbor using one and this is great.
Vice Mayor Kwok opened the public comment period, and there were no speakers.
15. WRITTEN COMMUNICATIONS
A. E-mail from Carl Di Giorgio resigning from the Transportation and Circulation Commission Recommendation: Accept resignation and thank Commissioners Di Giorgio for six years of volunteer service.
Councilmember Candell and Councilmembers thanked and recognized Carl Di Giorgio for his service over the years on the Transportation and Circulation Commission.
Vice Mayor Kwok opened the public comment period, and there were no speakers.
Councilmember Anduri said as liaison to the Planning Commission, he knows Farschad Farzan has left the Planning Commission, and he asked if the Council recognized him. Mr. Wolff said he will confirm with the City Clerk that this has not already happened, and he will follow-up.
ACTION: It was M/S/C (Anduri/Candell) to accept resignation of Carl DiGiorgio resigning from the Transportation and Circulation Commission. Vote: 4-0-1 (Ayes: Kwok, Anduri, Candell, and McCormick; Noes: None; Absent: Dawson).
16. ADJOURNMENT – 11:17 p.m.
APPROVED:
__________________________________
Gina M. Dawson, Mayor
ATTEST:
_________________________
Joanne Robbins, City Clerk