City Council and Creeks Committee Meeting Page 1 of 20 September 9, 2024 7 City of Lafayette
City Council
Committee
-
Lafayette Library and Learning Center – Don Tatzin Community Hall September 9, 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 and Creeks Committee Meeting Page 2 of 20 September 9, 2024 Mayor Dawson called the Regular City Council meeting to order at 6:00 p.m. She announced that Vice Mayor Kwok participated remotely from: 3396 Sunland Way, Costa Mesa, CA.
2. ROLL CALL
Present: City Council: Mayor Dawson; Vice Mayor Kwok; Councilmembers Anduri, Candell, and McCormick
Absent: None
Present: Creeks Committee: David Clark, MaryJo Cass, Ronald Hufft and Peter Norton
Absent: Chair Will Elder and Christine Lee
Staff Present: Niroop Srivatsa, City Manager; Greg Wolff, Planning and Building Director; Sonia Urzua, Assistant Planning and Building Director; Madison Leonard, Planning Technician; Anna Tolle, Assistant Planner; Mala Subramanian, City Attorney; Joanne Robbins, City Clerk
3. Disclosure and/or Take Action on Remote Participation due to Just Cause or Emergency Circumstances Pursuant to AB 2449 (Gov. Code section 54953(f).)
4. ADOPTION OF AGENDA
ACTION: It was M/S/C (Anduri/Candell) to adopt the agenda. Vote: 5-0 (Ayes: Dawson, Kwok, Anduri, Candell, and McCormick; Noes: None).
5. PLEDGE OF ALLEGIANCE: Led by Vice Mayor Dawson.
6. MAYOR DAWSON - Land Acknowledgement Statement
We acknowledge that Lafayette is part of the unceded, ancestral homeland of the Bay Miwok people. The Bay Miwok and neighboring Ohlone people have lived in and moved through this place for thousands of years. They stewarded and shaped this land for hundreds of generations. We express our appreciation and gratitude for this profound legacy, which enhances and contributes to our lives to this day. We will strive to honor this land and strengthen our ties with the Indigenous communities that continue to live and work in our East Bay region as our neighbors and community members. We acknowledge and honor them and their ancestors, elders, and next seven generations.
7. PUBLIC COMMENTS (For Items not on the agenda
MARIO DiPRISCO, as a candidate for City Council this November he wanted to share that there will be a series of house parties where everyone is invited to ask questions, share ideas and concerns on City related issues. This invitation is extended to Councilmembers and staff. Times & dates of these parties are on his webpage disprisco.org. If people are unable to attend, there is information on ways they can contact him. Like many residents he is excited about the Art & Wine Festival and happy to see the City will have a booth there. He feels that good outreach and communication is part of what makes Lafayette special. Thank you all for that.
City Council and Creeks Committee Meeting Page 3 of 20 September 9, 2024 JEFF GILMAN, spoke about the City’s electric leaf blower ordinance that went into effect July 1st. He estimates 80% to 90% of gardeners in his neighborhood are still using gas-powered blowers. The low adoption rate is not due to the City’s public outreach, but the electric blowers which gardeners want to use are almost as noisy as the gas-powered ones. He believes the switch is to lower fossil fuel emissions and also to lower the emission of GHGs. Emissions for gas-powered lawn mowers are qualitatively as much as the leaf blowers and he asked why they were not included in the ordinance and asked the Council forward his concerns to the Environmental Task Force. It seems the Council and the Environmental Task Force as to why people do not care about the requirement in the ordinance.
Mayor Dawson provided a public comment and congratulated Joanne Robbins, City Clerk, who celebrated her 30th anniversary working with the City of Lafayette. The City is very fortunate to have Ms. Robbins on staff and thanked her for her exemplary work.
LINDA DESCHAMBAULT said she is running for election in the fall to represent Lafayette as their new Director for EBRPD Ward 2. She would also represent Moraga, Orinda, Oakland, and Piedmont, has 37 years’ experience as an environmental scientist, former Mayor and Councilmember in Moraga, 20-year union worker, and helping local governments write Climate Action Plans and General Plans. She is excited to see that the City’s Creeks Committee has a presentation and thinks it is important for agencies to cooperate with things going on in their communities. As a Mayor, she also wants to ensure Lafayette has local control, and she looks forward to representing Lafayette in all climate issues, creeks, lighting, and trails usage.
8. CITY MANAGER’S UPDATE
City Manager Niroop Srivatsa gave the following update on department activities:
• From the Police and Fire Departments:
• On August 27th around noon, both Lafayette PD and Con Fire responded to a fire at Hunsaker Canyon. There were two Teslas on fire, and it appears the fire started in one of the vehicles and spread to the other. Con Fire responded quickly. It is a very grassy, dry area and the outcome could have been much, much worse. The batteries in one of the Teslas continued to flare up, requiring Con Fire staying on scene for several hours. The City issued a Nixle alert on that incident, but all is well.
• From the Library:
o At the Library, they have started a demolition project in the Seaborg Gardens which is adjacent to the checkout counter. There have been some leakages so the patio paving materials are going to be removed. It will be water-proofed, and the City is looking forward to a much more usable space in the future.
• From the Planning Department:
o The Terraces of Lafayette project was approved in 2020, and it involved the removal of trees to construct the 315 apartments. Tree removal will start this week to prepare the site for full scale mobilization and mass grading in the Spring of 2025.
City Council and Creeks Committee Meeting Page 4 of 20 September 9, 2024 o On the applications front, the City has received 13 SB 9 applications to date this year, and this time last year, the City had received 10 applications. As far as ADU’s, there are 32 applications year to date. This time last year, there were 22 applications. o The total number of applications for development is 203 year-to-date, and this time last year, the City had received 180 applications. So, there is an uptick in development activity. • From the Public Art Committee:
o The Committee is excited to announce that the Fall Poetry for all ages is a salon-style poetry reading, and it will be held at the Town Hall Theater on Tuesday, October 29th at noon. It is free and open to the public, and if someone is a local poet she asked to consider sharing their work with the City at this event. Those interested can go to the City’s website and search for public art and it will lead you to the signup for this event. • Last week, Senator Glazer announced the creation of the ADU accelerator pilot program which was created to encourage the construction of ADUs in Contra Costa and Alameda Counties in the cities that fall within his district. The Senator obtained $2.5 million from the State for this initiative, and the goal for all cities within his district is to construct a minimum of 350 ADUs.
Lafayette is eligible to receive up to $50,000 towards preparing proto-typical permit-ready ADU plans which will include design, elevations, and construction drawings. These free permit-ready plans will be available on the City’s website to anyone wishing to build an ADU on their property.
It is a savings for homeowners who want to take advantage of pre-approved and permit-ready plans.
Additionally, the City can participate in an ADU incentive program by offering individual rebates of up to $15,000 to property owners who obtain building permits to construct an ADU and complete them within 18 months of building permit issuance. The amount of rebate depends on the size of the ADU. The smaller the ADU, the bigger the rebate, depending on whether or not it will be deed restricted to lower income households. Staff just received notification of the program and will soon post it on the website.
Mayor Dawson opened the public comment period, and there were no speakers.
9. PRESENTATIONS
A. Corrina Gould, Sogorea Te’ Land Trust
Indigenous History of the East Bay and Work of the Trust Recommendation: Receive and file.
Corrina Gould, Sogorea Te’ Land Trust, said she is the Tribal Chair of the Confederated Village of Lisjan Nation. Sogorea Te’ Land Trust is the first urban indigenous women-led land trust in the country, and it happens to be based in our traditional territory. She gave a presentation with a beautiful photo of Mt.
Terschtak which is the beginning place of their tribal people. It is their ceremonial place and the mountain that they are born to. Only their most holy people can go to the top of this mountain, and they would gather at the foot of the mountain while ceremonies took place. For thousands of years, they learned about the story of their creation that came from the top of the mountain. It was changed to Mt. Diablo because people who were chasing her ancestors to the foot of this hill as they were running from Spanish soldiers disappeared. There are many stories, but some believe their ancestors were pulled up by the devil itself and was taken away, and this is why it is called Mt. Diablo. She described other stories about ancestors disappearing and soldiers thought they were spirits roaming around.
City Council and Creeks Committee Meeting Page 5 of 20 September 9, 2024 This sacred place has become a place of enjoyment for people of all walks of life and one day they hope it will return to the name of Terschtak, a place of reference for their people. Their nation comprises of people from five different counties in the Bay Area, encompassing Alameda, Contra Costa, San Joaquin, and parts of Napa and Solano Counties along the waterway. She presented a display of Mt. Terschtak, and they believe that each of these tribal people were sent in those directions in order to take care of the lands and waters, and they still believe it is their responsibility to do that.
Unfortunately, when the Spanish soldiers came, they changed the place for them, but still there are remnants of their existence all over the Bay Area and sometimes they cannot see it because cities are built upon them and there is nothing that signifies that Ohlone or Bay Miwok or Plains Miwok or others are still here.
In 1909, a map was created by a man from U.C. Berkeley who knew these places along the Bay were all important places and that have numbers that signify them are shell mounds. They are the burial sites and village sites of their ancestors and in 1909 as development was happening, he found over 425 sites that held their ancestral remains for thousands of years. They were fishing villages, and they had tule boats and would go out on the bay. Their ancestors lived in a place where there was never hunger or homelessness.
Over the years, their shell mounds were destroyed like the one in Emeryville, the largest of the 425 shell mounds. She displayed a picture of a steam shovel in the back as archaeologists and anthropologists from U.C. Berkeley are watching it being taken down, layer after layer of three stories high that their ancestors had thousands of humans remains. They had their shell mounds in sites where fresh water met salt water and the Temescal Creek runs through here as it goes into the Bay.
Bay Street Mall replaces their last shell mound and because of the hundreds of shell mounds and sites that were being destroyed in the Bay Area, there was a need for the Sogorea Te’ Land Trust to be created, which she described. Rematriation is the work they decided to take on which means to restore a living culture to its rightful place or to restore a people to a spiritual way of life in sacred relationship with their ancestral lands without external interference. She then displayed what rematriation looks like and described the work of coming together as women leaders from all walks of life to protect shell mounds and to re-imagine what it would look like. Underneath all of the pavement are creeks and waterways and a way for people to come back and be human beings again.
Their first piece of land was given back to them from a non-profit called “Planting Justice” in 2016 which is one-quarter acre of land which she displayed and described, as well as a women’s and men’s log, an elder’s log, a children’s log, and a two-spirit non-binary log which form a prayer for everyone that now lives in their territories for a variety of uses and ceremonies and celebrations.
She then described their work with city governments throughout the Bay Area, the West Berkley Shell Mound protection, gatherings and prayers by a variety of people to protect sacred sites, migrant communities that make flower lei’s, re-imaginations for a destination to go to which talks about their history and resiliency of their people, work with Richmond to create Oakway Park, work to change park names, and the return from the City of Oakland of 4.2 acres of land in the Oakland Hills, and they do the work for all people who now live in their territory.
City Council and Creeks Committee Meeting Page 6 of 20 September 9, 2024 Mayor Dawson and Councilmembers thanked Ms. Gould for sharing the informative and educational presentation, noted this is part of the work coming from the Land Acknowledgement Task Force that was chartered by then Mayor Anduri, acknowledged members from the Task Force, and cited the phenomenal presentation, recognized the sharing the historical accounts, and asked to put the recording of the presentation on the City’s website.
Mayor Dawson opened the public comment period.
MARY JO CASS said she found the presentation to be very inspiring and she congratulated the Trust. She is a member of the Lafayette Creeks Committee and is speaking as an individual, she hopes to collaborate with the Trust more in the future because they know there were settlements along their creeks in Lafayette. The people who lived here built tule boats and went out to the Carquinez Straits, fished, and brought back fish to the settlements in this area. To this day, there are tule reeds along the Reservoir in Lafayette so she hopes the City can find multiple ways to support this effort.
STEVE KALOGERAS asked Ms. Gould to provide more details about where things stand with the property in the Oakland Hills.
Ms. Gould said they are currently taking out invasive species and have a 30x30 grant they are working on with the State to try to work with what the pre-plan is for the development of that site. Right now, they are in the midst of bringing in tree experts to determine which trees are sick and which trees need to come down. They are also working with Cal Fire to look at a mitigation plan in order for them to make it fire-resilient. They also need to deal with engineering issues, safety concerns, asphalt on the land over 40 years old that needs to be removed, and they have a wonderful crew of volunteers to help. They are always looking for volunteers, as well.
LINDA DESCHAMBAULT said she is thrilled with the presentation and said she worked with the tribal community in Lake Tahoe and for EBRPD’s Parks Advisory Committee. She has fought to follow land acknowledgement with actions and would love to reach out to Ms. Gould. She also understands the balance needed involving outsiders. She is also a certified herbalist in medicine and honors the local ways.
She asked how to get the word out about the land trust and donate.
Ms. Gould said she can be reached at [email protected] and she has staff support. Many people live in their territories in 5 counties, and she said if people can go to https://sogoreate-landtrust.org there is a mechanism called Shuumi, which is a gift.
MARIE HERNANDEZ said she serves as the Director of the Friendship House Association of American Indians in San Francisco, and she is the Lodge Director at the Women’s Lodge in Oakland. She thanked the City for inviting Ms. Gould here and said she has worked with her on several projects. Having the representation in Lafayette is very profound and education is where it starts. Much of their history has never been told and she thanked the City for their support. She works on the committee for the City of Berkeley who are the first City in the United States to recognize Columbus Day as Indigenous Peoples Day and the Friendship House Association is a rehabilitation for native Americans that address women and children in recovery.
B. Creeks Committee – Annual Update
Recommendation: Receive and file.
City Council and Creeks Committee Meeting Page 7 of 20 September 9, 2024 Creeks Committee member David Clark introduced members present as himself, MaryJo Cass, Ronald Hufft and Peter Norton, said the committee has one vacancy after losing Austin Payne and thanked him for his many years with the committee. He said each committee member will present their annual update.
Committee Member Ron Hufft said he is the committee’s representative to the Walnut Creek Watershed Council and is on the Board of the Council. Las Trampas is one of five sub-watersheds of the Walnut Creek Watershed, and he determines available resources for Lafayette. There is a home development being built on part of Old Jonas Creek that requires some mitigation and the Water Board assessed the amount of $20,000 which will be received by the Committee for future work. They would like to use some of these funds for very long-range restoration planning for Leigh Creekside Park and the Gazebo site. The Watershed Council received a grant from the California Department of Fish and Wildlife for $106,000 to be used to hire an experienced contractor, Helix, to eradicate Arundo sites.
Eight sites were approved and five of the eight were in Lafayette. About $45,000 is now being spent in Lafayette and they have completed virtually all eradication, and the last site left is on City property on Camino Diablo at the utility yard. The only remaining Arundo in Lafayette will be small patches near the intersection of Pleasant Hill Road and Olympic on the bank side.
Committee Member Peter Norton said he has been active with collection of volunteers for their Community Days as well as proposed other workdays they are trying in supporting restoration and cleaning up of the seven main creeks in Lafayette. They have had excellent response with over 30 volunteers at their last event and in 2025, they will introduce a springtime workday specifically for projects.
Committee Member MaryJo Cass spoke about accomplishments, stating they reviewed and edited the Creek Maintenance Guide on the City’s website, began scheduling guest presentations at meetings on creek-related topics which she described, they have Creek Fun Facts which have been included in the Weekly Round Up about once a month to raise awareness and appreciation for creeks, and they hope to plan and host a public workshop in the future for property owners along the creek.
Committee Member David Clark stated they received funding for the West Reach project portion of the Downtown Creeks Plan, took pictures and held a short ceremony with Congressman Mark DeSaulnier presenting the check, and said there will be a lot of work involved. He spoke about the concept of ensuring the funds are obligated and what time constraints are for the use of the funds which are both important.
They will continue to work with City staff on the West Reach project and if there are not enough funds to complete the project, the Committee will work on grants to augment funding, if necessary.
Ms. Cass thanked Mr. Clark because he attends City meetings on the Creeks Committee’s behalf and monitors agendas of other committees and commissions to ensure they are all collaborating. Christine Lee is their liaison to GPAC, and they are grateful for her efforts, as well.
Mr. Clark concluded and said lastly, one of the things they will continue to do in the future is to monitor the progress with Lafayette’s Tree Protection Ordinance. Some of the changes were part of the Downtown Creeks Plan adopted in 2017 and they see this as their mandate to ensure what was in the plan is at least considered in terms of the changes with the ordinance.
City Council and Creeks Committee Meeting Page 8 of 20 September 9, 2024 Councilmember Anduri commented that this is probably the model committee within the City because of their great results, especially with removal of the Arundo, and he looks forward to the West Reach catalyst project which will demonstrate what can be done in restoring creeks, with a great entryway to the City’s downtown. He recognized all committee members who contribute and are active between their monthly meetings and looks forward to working on what can be done with the 16 miles of creeks with the funding.
Councilmember McCormick echoed comments of appreciation and recognized the success of Community Day. He added his appreciation for the updates on our webpage and encourages our citizens to go to this section on our website, especially if they live near a creek.
Councilmember Candell echoed what Councilmembers Anduri and McCormick said. Community Day has been moved up a month and will be in May 2025.
Mayor Dawson thanked the Creeks Committee and acknowledged the hard work this committee does both physically and providing important information and presentations. She also appreciated the grants, as they make a big difference.
Councilmember Anduri also called out Tim Clark, the staff liaison, for all his hard work, as well.
Vice Mayor Kwok commented on the loss of audio for about two minutes and thanked the Creeks Committee for their presentation.
Mayor Dawson thanked the Creeks Committee for their presentation.
10. CONSENT CALENDAR
Mayor Dawson asked and confirmed there were no requests for removal of any items, nor public requests or public comments.
A. Minutes – August 23, 2024
Recommendation: Approve.
B. Surplus Equipment
Recommendation: Declare that the equipment described is surplus property and donate or sell as appropriate.
C. Tract 9462, 3742 Mt. Diablo Boulevard – Authorization to Record Subdivision Map Recommendation: Authorize the recordation of the subdivision map for Tract 9462.
D. Potential Acquisition of Property at 221 Lafayette Circle – APN 243-140-005 Recommendation: Withdraw intention to negotiate for the purchase of parcel APN 243-140-005 (221 Lafayette Circle).
E. Lafayette American Rescue Plant Act (ARPA) Extending Outdoor Dining Recommendation: Adopt Resolution 2024-36, extending the relaxation of parking ordinances to allow the use of private lots for outdoor activity, and temporary partial closure of public streets, specifically on-street parking spaces for use for the city’s Outdoor Retail Sales and Dining program through January 2, 2026.
City Council and Creeks Committee Meeting Page 9 of 20 September 9, 2024 F. Appoint Two Councilmembers to Ad-Hoc Property Subcommittee Recommendation: Appoint Councilmembers Anduri and McCormick to an ad-hoc committee to discuss alternative uses for the Campana property for a duration not to exceed one year.
ACTION: It was M/S/C (Anduri/Candell) to adopt Consent Calendar Items A, B, C, D, E and F.
Vote: 5-0 (Ayes: Dawson, Kwok, Anduri, Candell, and McCormick; Noes: None).
11. OLD BUSINESS – None.
12. STAFF REPORTS
A. Madison Leonard, Planning Technician; Sonia Urzua, Assistant Planning Director; Niroop Srivatsa, City Manager
Residential Amenity Rentals via online platforms like Swimply.com and Peerspace.com – permissibility under the Lafayette Municipal Code.
Recommendation: Receive a presentation outlining applicable sections of the municipal code.
Planning Technician Madison Leonard gave the staff report and overview on the permissibility of residential amenity rentals under the Lafayette Municipal Code. Based on research and findings, residential amenity rentals like swimming pools, yards, and sports courts, constitute a commercial activity that is not permitted in residential zoning districts unless a Land Use Permit has been submitted and approved through a public hearing process. Staff's informational report reviewing the temporary rental of amenities is not a discretionary project under CEQA (Public Resources Code §21080(a)); therefore, no environmental review is required. Staff’s recommendation is for the Council to receive a presentation outlining applicable sections of the Lafayette Municipal Code.
Planning Technician Madison Leonard gave the staff report and overview of residential amenity rentals via online platforms like Swimply.com and Peerspace.com and permissibility under the LMC.
During the City Council meeting on July 22, 2024, members of the public raised concerns regarding the impacts of residential amenity rental on Swimply.com or Peerspace.com. These are online platforms enabling hourly rentals of amenities such as backyards, swimming pools, sport courts, and other features.
The City Council directed staff to research the topic and provide a report on how the City regulates this use. The rental of residential amenities is not a permitted use in the Lafayette Municipal Code (LMC).
On July 22, 2024, the City Council received public comments about the impacts of one or more properties renting out their amenities via online platforms. Commenters described a loud, unsupervised pool party of up to 100 people in their neighborhood. Complaints of smoking within a high fire severity area, alcohol consumption, excessive vehicles, and possible emergency access issues were also listed as concerns.
Following the meeting, the City Council directed staff to evaluate the temporary rental of residential amenities against the applicable codes and ordinances and provide an update on how the City regulates such uses.
City Council and Creeks Committee Meeting Page 10 of 20 September 9, 2024 Swimply is an online platform enabling the hourly rental of backyards, swimming pools, sport courts, and other amenities. Guests can search for nearby listings, explore their features, read reviews, and submit a request to rent the listing. Additionally, some hosts may even offer instant booking. The host of a Swimply listing can establish rules for use, the hourly rate, and how many people are permitted on site. Swimply’s website contains a Neighbors Community page recommending “good neighbor” practices that a host can adopt and a method for lodging complaints against a host violating these practices.
Lafayette Municipal Code Land use activities must comply with the zoning district regulations in which the property is located for the community's health, safety, and general welfare. The rental of amenities is an activity conducted as a means of livelihood or in expectation of profit. Therefore, staff has evaluated this use for conformance with LMC Sections 6-327 Home Occupation and 6-347 Residential Business, under which non-residential activities are permitted in residential zoning districts.
Under Section 6-327; Home occupation, a "Home occupation" means an activity conducted by a person at his principal place of residence as a means of livelihood or in expectation of profit, which may involve not more than one nonresident employee employed in the home occupation, and which:
(a) Does not change the residential character of the dwelling; (b) Is not detrimental to the health, safety or welfare of the occupants of nearby property or of the community generally;
(c) Involves no evidence outside any structure or visible from outside the structure that the activity is being conducted on the premises;
(d) Requires no vehicular or pedestrian traffic or parking in excess of that normally associated with a strictly residential use of the premises;
(e) Is not a use which is an otherwise prohibited use in a residential area.
A home occupation is permitted by right in all single-family residential zoning districts but must meet the definition and criteria described in Section 6-327 (a)-(e). Staff finds that rental of amenities constitutes “an activity conducted by a person at his principal place of residence as a means of livelihood or in expectation of profit.” However, impacts as a result of the use may change the residential character, may be detrimental to the health, safety or welfare of the occupants of nearby property or of the community, may create visibility from outside the structure that the activity is being conducted, and may involve vehicular or pedestrian traffic or parking over that normally associated with a residential use of the premises.
As such, staff finds that the rental of amenities does not meet the criteria for being defined as a “Home Occupation” and is, therefore, not allowed within residential zoning districts.
Under Section 6-347 - Residential business, "Residential business" means an activity conducted by a person at his principal place of residence as a means of livelihood or in expectation of profit, which may involve more than one nonresident employee employed in the business at the residence, and which:
(a) Does not change the residential character of the dwelling; (b) Is not detrimental to the health, safety or welfare of the occupants of nearby property, or of the community generally;
(c) Involves no activity which is incompatible because of noise, vibration, glare, odor or appearance with the surrounding land uses; and
(d) Requires no vehicular or pedestrian traffic or parking in excess of that normally associated with a strictly residential use of the premises.
City Council and Creeks Committee Meeting Page 11 of 20 September 9, 2024 A residential business is a use requiring the issuance of a land use permit in all single-family residential zoning districts. To approve the permit, the activity must meet the criteria of LMC Section 6-347 (a)-(d), Residential Business, and the City must make the findings to approve a land use permit, as described in LMC Section 6-215. A property owner seeking to rent amenities within a single-family zoning district would first need to obtain a land use permit, and staff would evaluate the proposed use for conformance with LMC Section 6-347, Residential Business, and LMC Section 6-215, Specific findings necessary for a land use permit.
Approved land use permits are also subject to conditions of approval, which may impose parameters under which the use may operate. It is doubtful that the findings listed above can be made.
Regarding enforcement, the City of Lafayette staff includes one Code Enforcement Officer in the engineering department and a part-time Code Enforcement Officer in the police department. The function of these positions is to enforce the LMC, particularly in relation to land use and property maintenance.
The City’s code enforcement department operates on a complaint basis.
As a result of the public comments, staff inquired with other jurisdictions on the regulation of the rental of amenities through websites such as Swimply.com or Peerspace.com (see Attachment 2, Feedback from Other Cities). Temporary rental of amenities is not allowed in most jurisdictions, based on similar home occupation and residential business provisions, which prevent activities from becoming a nuisance or a threat to public health, safety or welfare.
Regarding environmental review, staff's informational report reviewing the temporary rental of amenities is not a discretionary project under CEQA (Public Resources Code §21080(a)); therefore, no environmental review is required.
Staff’s recommendation is for the Council to receive a presentation outlining applicable sections of the Lafayette Municipal Code.
Councilmember Candell thanked Ms. Leonard for the staff report and for addressing neighbors’ concerns.
She said she lives in the same neighborhood of neighbors who initially voiced concerns and came to the July meeting. She asked how the City will notify people on these sites and asked if there is a way to enforce this.
Assistant Planning Director Sonia Urzua said the code enforcement procedure complaint-based, and staff would then follow up.
Councilmember McCormick referred to other cities and how they handle problems and asked if there are approvals in other cities.
Ms. Urzua said they conducted a search, and one city asked the property owner to remove the listing, which was done. City Manager Srivatsa added that some cities formulate regulations on their own.
Mayor Dawson opened the public comment period, and there were no speakers.
City Council and Creeks Committee Meeting Page 12 of 20 September 9, 2024 Councilmember questions and discussion ensued regarding limiting the number of guests at these types of venues, whether the LMC needed to be updated to be tighter and address these specific uses, types of commercial recreation activities, getting around the regulation by renting an Airbnb or VRBO with a pool, how people will be notified that this type of use will be enforced, and a request to put something in the Weekly Round Up.
Mayor Dawson and Councilmembers thanked staff for their research and presentation.
BREAK
Mayor Dawson called for a 5-minute break at 7:35 p.m. and, thereafter, reconvened the regular meeting.
13. PUBLIC HEARINGS
A. Anna Tolle, Assistant Planner
Circle K - 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.
Recommendation: 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 Circle K appeal of the Planning Commission’s denial of Circle K’s 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. The applicant has addressed the main concerns of the City Council from the July 22nd meeting regarding trash and recycling, as well as branding, which she described.
Staff 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. The draft resolution and revised draft conditions of approval are included with this report as Attachment #1 and #2, respectively. Based on evidence in the record, staff can affirmatively make all required findings for approval, as elaborated in the staff report and as conditioned, the project is consistent with the General Plan, Downtown Specific Plan, and General Commercial Zoning District standards.
Councilmembers questioned bike parking which Ms. Tolle described and pointed to the bike parking provided in the plans, the preference and utility of the site for having bike racks versus bike storage, confirmation there will be recycling, organics, and trash on site, delivery days twice a week.
Mayor Dawson called upon the applicant.
Muthana Ibrahim, Architect, M I Architects, gave an overview of the operations and described changes to the project, displayed a video of the floor plan, addressed previous questions from Councilmembers.
City Council and Creeks Committee Meeting Page 13 of 20 September 9, 2024 Hussein Saffouri, Attorney, Ramsey Law Group, said at the last meeting concerns were raised and they addressed each of the concerns raised. One was the fear that Mt. Diablo would be blocked by deliveries.
Parking and health concerns have been addressed. The final concern raised was a concern that they would be perceived as an urban liquor store, and he confirmed this is not an urban liquor store, but a convenience market focused on providing food and a mix of beer and wine. It is not open all night and there is also no data that convenience stores attract crime. There really is no evidence that the findings cannot be met for the permit subject to their request that the market open at 5:00 a.m. because people can stop and get coffee on their way to work, and it would be more convenient for them to be open earlier.
Councilmember Anduri referred to the opening time and said at the last meeting, when the Planning Commission discussed this, he asked if the proposal was for 7:00 a.m. or 5:00 a.m. He was not sure anything in town would open at 5:00 a.m.
Ms. Tolle said the applicant’s proposal has always been to open at 5:00 a.m. There was a typo in the staff report and staff is recommending operations to begin at 7:00 a.m. which is consistent with the other market in downtown Lafayette, which is also open from 7:00 a.m. to 11:00 p.m. She did not recall any particular discussion other than it being next to residential uses that may disrupt neighbors in the early morning or late at night, which was discussed at the Planning Commission meeting.
Mr. Saffouri commented that there are many people who leave for work very early.
Councilmember McCormick referred to the garbage and said it is unfortunate that the garbage and recycling and other waste would need to be trucked out to the sidewalk. He referred to the pictures shown by the applicant and asked if they envision the store to look like this or he asked if it was more conceptual.
Mr. Ibrahim said the pictures are more conceptual.
Councilmember McCormick asked if there is eating on site, and Mr. Ibrahim said there will be no consumption of food on site. Councilmember McCormick said it mentions that the yogurt bar is inside, and he asked and confirmed customers would not eat this here. He believes the hours were initially preferred the hours to be 7:00 a.m. but he did not believe the Planning Commission discussed this at all.
Councilmember Candell said she appreciates the efforts made for future changes. Her only remaining question is the liquor store aspect. She asked that this be included in the condition of approval for only beer and wine, noting the applicant is saying they will not sell liquor.
Vice Mayor Kwok said he had no questions for the applicant.
Mayor Dawson said she has listened to the last meeting and the Planning Commission meeting, and she is impressed by the way the applicant is addressing concerns of the community, the PC, and the Council.
It looks like they thought about making this store local serving, changing the name, and looking for serving customers conveniently. She shares Councilmember McCormick’s concerns for the ways to recycle and she knows ultimately the Solid Waste Authority is responsible for this. She wonders if the applicant though would reconsider the recyclable items given it is part of the City’s goal to minimize trash and recycle.
Mr. Ibrahim said they do not have a problem with recycling.
City Council and Creeks Committee Meeting Page 14 of 20 September 9, 2024 Mayor Dawson opened the public comment period.
ANNE MAGRATH COLEMAN, owner of Diamond K with her brother, and their only concern is the issue at the last meeting was garbage and they will have pickup of cans twice a week; however, the garbage truck will come down Mt. Diablo, stopping at the store and picking up garage which causes a traffic issue. The garbage cans would be unsightly given the City has done so much work on the sidewalks and beautification. She knows this has to be done, but personally she is just concerned about the garbage issue with cans out there all day and twice a week along Mt. Diablo Boulevard.
Councilmember McCormick said he thinks the issues voiced by Diamond K by Ms. Magrath-Coleman hopefully have passed. Ms. Magrath thanked Councilmember McCormick and said they want to be a good neighbor, but they just want to get it right.
CHERYL MACDONALD Expressed her thanks to the Planning Commission, as they answered their questions and concerns. She expressed concerns their truck does back down the driveway and doesn’t understand how this is going to be guaranteed. She thanked the applicant for answering each of their questions, but she does not understand how the applicant can guarantee the deliveries, garbage, and parking will be handled. The PC had to make a hard decision, and they held very passionate, thoughtful discussions. However, she believes Items A and E have not been properly addressed, and did not believe the businesses felt “heard” and does not agree certain items will work as stated by the applicant.
PAULA HENSLEY said she appreciates Ms. MacDonald’s comments, and she voiced the same issues as raised by the Planning Commission’s concerns. The residents of the Homeowners Association continue to object to this use despite what was added tonight. Their concerns include crime issues which she did not think were addressed adequately tonight, thinks there is no data to support the idea that people should be aware of their surroundings, given their properties abut this proposed business. She believes the change of land use for this building is significant as it has historically been zoned or considered Office.
She said it seems the reasons for the proposed change have not been adequately addressed by the staff report and issues raised by the PC. The west end has historically been residential and office only on Risa Road notwithstanding the Reservoir. Even coming into Lafayette up until Mountain View Drive, there are no retail businesses at that corner to speak of and she does not understand this particular location is open for a change that would alter the character of this residential area. There is also not enough information or data here from the applicant to support changing the land use, and homeowners in the area should not be disregarded, so she asked the Council to again reconsider the recommendation of the PC and deny the appeal.
BILL MAGRATH attempted to speak, but there was an issue with the audio.
Rebuttal - Applicant
Mr. Ibrahim spoke about adhering to the need for trash pickup, said they plan to recycle items, said they do not view the change for the opening of the business an issue, and can adhere to all conditions imposed.
City Council and Creeks Committee Meeting Page 15 of 20 September 9, 2024 Mr. Saffouri said they have listened to the community, the Planning Commission and the Council and have taken comments to heart. With regard to the PC, this is a de novo hearing. At the last hearing, staff noted that they have raised the crime issue with Police Chief Alldritt. Chief Alldritt had no real concerns with regard to this use in this location. He thinks this is the most important data point that they have. In regard to zoning, there is Diamond K store and the burrito place, a coffee shop and a restaurant that all exist.
RONNIE CRABTREE said they are excited about this project as the Lafayette Family Market. As part of reenvisioning this and as someone experienced having worked at Greiger’s Markets and 25 years in specialty grocery, they will be in charge of procuring products for the store, a lot of natural foods and really hyperlocal items. So, the idea of crime is that this is just another locally owned store that will mesh well with the community and it will be a great addition to the west end.
Councilmember McCormick said the applicant mentioned there is opposition to the neighbors and he asked if the applicant has addressed their concerns.
Mr. Saffouri said they have not done any other outreach in between meetings. Mr. Ibrahim said he believes they did meet with the owners of Diamond K
Councilmember Anduri referred to deliveries. One of the speakers mentioned that one of the Planning Commissioners experienced trucks stopping in the median to deliver to businesses which does happen in Lafayette. He asked if the applicant can confirm they will do everything they can to prevent this because they all know deliveries will park in the road, run in, and say they will only be here 2 minutes. He asked if people working in the store will be authorized to tell them they cannot do that.
Mr. Ibrahim said if a vendor does not follow the rules, they will not be delivering any longer. Mr. Saffouri added that Mr. Ibrahim will be in the office building and there is a large glass window facing Mt. Diablo Boulevard. Any vendor that breaks the rules will be seen.
Mr. Crabtree said as the marketing representative of the group, he will be setting up vendor accounts and he will make sure they put on the application that they will not be able to disrupt parking for deliveries.
Vice Mayor Kwok had no questions or comments.
Mayor Dawson commented that the City knows trucks stop on Mt. Diablo Boulevard and it is a question of enforcement. She thanked the applicant for the assurances, but honestly, the City would not know until there is a complaint that deliveries are blocking traffic. She asked and confirmed COA# 9 is an ongoing condition to ensure deliveries are not being made in the middle of the street.
Councilmember Candell referred to the operating time change and Mayor Dawson asked if Councilmembers supported an opening of 5:00 a.m. versus 7:00 a.m.
Councilmember McCormick said he thinks the original proposal was for 7:00 a.m. Planning Director Wolff said he recalled staff was being consistent in representing the applicant has proposed 5:00 a.m. and initially it was 1:00 a.m. to close. They revised the application, and staff has been consistent in its approval in 7:00 a.m. starting time given adjacencies of businesses starting at 7:00 a.m. The store is immediately adjacent to multi-family residential and having deliveries and activities early in the morning when residents are typically sleeping is not recommended.
City Council and Creeks Committee Meeting Page 16 of 20 September 9, 2024 Councilmember Anduri said up until this meeting, the applicant’s understanding has been staff’s recommendation for 7:00 a.m. When the PC discussed it at their meetings, the staff recommendation was 7:00 p.m. During those meetings, he asked if the applicant came at the podium or otherwise ask to be able to open at 5:00 a.m. because this is the first time this has been raised to consider it.
Mr. Ibrahim said they had initially submitted their application for 5:00 a.m., and it got changed by the PC to 7:00 a.m. until tonight.
Mayor Dawson said having no experience with this, there are similar stores where people may be driving up, entering the front door and she was not sure how disruptive that is especially in the area.
Vice Mayor Kwok asked and confirmed the public hearing has been closed since public comments ended.
Vice Mayor Kwok made ex-parte disclosures, stating that after the July 22nd meeting, he met on July 26th with the applicant at the site because he was interested in visiting the site and learn more about conditions. He met with Mr. Ibrahim, the architect, Mike Ahmadi owner of GAWFCO), and another staff member named Mike and they met outside the site and did not go inside. They went to the parking lot and discussed four items:
1) He discussed the narrow driveway, which is COA #10, and the architect discussed whether or not it might be possible to expand the width of the driveway by 12 inches; 2) He discussed trash and recycling and the volume of garbage and recycling, specifically scrap cardboard produced by the applicant and the applicant said they would not plan to put this on the sidewalk for Republic Services, but they would be recycling that; 3) They discussed how to transfer the garbage cans to the front not through the store, talked about a truck with a life gate, and they are using for their current office trash up that hill, and they suggested they could use that same truck to bring the store bins up the hill. He suggested they presented an explanation of this to staff in advance of today’s meeting which he is glad was incorporated in the report;
4) They discussed their operating hours which staff suggests as 7:00 a.m. to 11:00 p.m. and he clarified if this was acceptable. The applicant requested that for convenience stores, the 5:00 a.m. to 7:00 a.m. are a very important part of their business model for those early risers; 5) They discussed their brand name—Fast Fill—which they said was a placeholder and that they would explore other brand names to present in the future; and 6) He also said yesterday, after reading the staff report, he asked if the applicant was interested in keeping 7:00 a.m. to 11:00 p.m. or whether they wanted to ask for a 5:00 a.m. opening, and they confirmed they were still interested in a 5:00 a.m. opening.
Councilmember McCormick said he was surprised to see 7:00 a.m. from the very beginning and thought given the type of store they could open earlier. However, he is concerned given the proximity of the residents right around this location and even in his business where people getting there and opening the business, pulling up with cars going into a business, and talking, he worries it would be noticeable and disruptive to residents that are literally 15-20 feet from the entrance to the store. It is very tight in there and very close to the residences.
City Council and Creeks Committee Meeting Page 17 of 20 September 9, 2024 Councilmember Anduri said he thinks it would be hard to approve 5:00 a.m. this evening which has not been something the applicant has pushed for during the PC meeting or the Council’s last meeting which means the public has not had an opportunity to specifically comment on that. He thinks that after being in operation a while, he asked and confirmed with staff they could return and request for a modification of the hours of operation or any other condition of approval.
Councilmember Candell noted staff has expressed he has experience with early start times and asked to explain what those experiences are. Mr. Wolff said it is fair to summarize these are noise complaints by those in close proximity to commercial operations and specific to this location. He noted the prior use has been an office building and occupants show up around 8:30 or 9:00 a.m. and it is a quiet exercise.
Staff anticipates, based on the applicant’s testimony, a lot of coming and going and were this a different location where this adjacency were not the case, staff would support the 5:00 a.m. It is simply a foreseeable issue that the City will then have to be contending with if there are noise complaints.
Councilmember Candell noted residents are just on that side of the driveway and given that consideration and the fact that the public only heard about this today, it is very unusual to approve something like this in Lafayette’s practice as a City Council. The applicant can come back later with other ideas or changes in conditions.
Mayor Dawson agreed with comments, agreed the Council has a practice of being transparent, and she encouraged the applicant to return in the future if needed. This is a Mt. Diablo business and there are many new residents moving in across the street and all over this area, and this will naturally increase noise and traffic regardless. To burden a business given more houses will be built directly on Mt. Diablo, she was not sure this is a good precedent to set.
Councilmember McCormick said he thinks it is fair. In thinking about this, he looks at opening times around the area and everything is 7:00 a.m. He thinks the business can see how it goes and can return to request a change. He also agreed there is a lack of public notice of this change.
Mayor Dawson asked if the Council should go through conditions of approval or not or take a vote.
Councilmember Anduri said he thinks COA #12 should be returned which calls out a report on bike parking by staff, and he thinks the applicant provides two types of bike parking. Mayor Dawson said she thinks it might be good to have bike racks in front.
Councilmember McCormick said he thinks a low-profile bike rack would work and be more attractive along Mt. Diablo which could be used by employees or bicyclists.
Councilmember Anduri asked if it is acceptable to have bike lockers in the back. Mr. Ibrahim said yes, they can agree with this. Councilmember Anduri said the City has learned from experience is that there also needs to be a clear view into the store from the back.
Councilmember Candell said she did not think the City is requiring them to have bike storage in the back, but a request, and Councilmembers agreed, noting the conditions that there be no signage, and a clear view of the store are positive for opening and closing concerns.
City Council and Creeks Committee Meeting Page 18 of 20 September 9, 2024 Mayor Dawson referred to COA #11 and said she called Republic Service today to ask more about their pickup schedules and she wanted to make sure they do not have issues along Mt. Diablo pickups. She thinks the service issues that have come up relate to residential properties. She wondered the condition needs to state that garbage is picked up by Republic Service and put away right afterwards to the back.
Councilmember McCormick suggested removing them from the street as soon as practical and not just within 24 hours. Mr. Wolff said there was significant discussion at the PC and Council about how recycling would be handled, and the intention was that this was the condition the applicant made. If there is a serious issue with Republic Services and the City communicates with the property owner about that, this is beyond their control, so staff would not take action on the applicant for something that is beyond their control.
Mr. Wolff referred to COA #9 that speaks to deliveries and timeframes. So as not to adjudicate whether or not the truck parked in front actually blocks traffic, staff would advise those two words be changed to “deliver” to state , “Delivery trucks shall park in the rear and shall not deliver in front of the store.” This way, it is clear.
Mayor Dawson reviewed changes in conditions, which she verbalized and confirmed by staff.
ACTION: It was M/S/C (Anduri/Candell) to find the project exempt from CEQA and adopt Resolution 2024- 33, upholding the appeal and approving the project subject to conditions, as amended: 1) Amend COA #12 to require low-profile bike racks in the front of the store. If the applicant chooses to provide bike lockers they should not be located in front of the building but at the rear of the building; 2) Amend COA #11 to state after garbage is picked up by Republic Service, can shall be put away in the rear as soon as is practical; 3) Amend COA #9 that speaks to deliveries and timeframes to state, “Delivery trucks shall park in the rear and shall not deliver in front of the store;” and 4) hours of operation shall be from 7:00 a.m. to 11:00 p.m. Vote: 5-0 (Ayes: Dawson, Kwok, Anduri, Candell, and McCormick; Noes: None).
14. ITEMS REMOVED FROM CONSENT – None.
15. COUNCIL/COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Councilmember Candell reported on a meeting she and Councilmember Anduri held with Supervisor Candace Andersen regarding Fire SAT which is privately funded for methane-detection satellites. They hope to work on getting this in the county.
Councilmember Anduri said ignition and detection is a response and the other great news they learned is this is an ignition detection. The Board of Supervisors authorized Con Fire to enter into a contract for helicopter service to serve the county.
B. Mayor Dawson
Sign-Up for the City’s Booth at the Art & Wine Festival Recommendation: Receive and file.
Councilmember Candell reported she will be out of the country starting on Sunday and she will miss the Art & Wine Festival and the Council meeting.
City Council and Creeks Committee Meeting Page 19 of 20 September 9, 2024 C. Councilmembers Kwok and McCormick
Appointing members to the Youth Commission
Recommendation: Adopt Resolution 2024-35 Appointing members to the Youth Commission.
Vice Mayor Kwok stated there are four vacancies on the Youth Commission and he and Councilmember McCormick interviewed candidates and recommend four appointments of Appointing Zoe Braunstein, Leonard Koopah, Maya Shinaman and Annabelle Trebotich to the Youth Commission.
ACTION: It was M/S/C (McCormick/Kwok) to adopt Resolution 2024-35 appointing Zoe Braunstein, Levand Koopah, Maya Shinaman, and Annabelle Trebotich to the Youth Commission. Vote: 5-0 (Ayes: Dawson, Kwok, Anduri, Candell, and McCormick; Noes: None).
16. WRITTEN COMMUNICATIONS
A. Email from Cameron Potvin requesting a proclamation recognizing Energy Efficiency Day on October 2, 2024.
Recommendation: Approve the proclamation declaring October 2, 2024, as Energy Efficiency Day in Lafayette.
Vice Mayor Kwok briefly spoke about a solar conference he attended this week.
ACTION: It was M/S/C (Kwok/Anduri) to approve the Proclamation declaring October 2, 2024, as Energy Efficiency Day in Lafayette. Roll Call Vote: 5-0 (Ayes: Anduri, Candell, Kwok, McCormick, and Dawson; Noes: None).
B. Email from Karen Pinkos, City Manager of El Cerrito, requesting a proclamation declaring September 21-27, 2024, as United Against Hate Week in Lafayette.
Recommendation: Approve the proclamation declaring September 21-27 as United Against Hate Week in Lafayette.
ACTION: It was M/S/C (Candell/Anduri) to approve a Proclamation declaring September 21-27, 2024, as United Against Hate Week in Lafayette. Roll Call Vote: 5-0 (Ayes: Anduri, Candell, Kwok, McCormick, and Dawson; Noes: None).
C. Email from Victoria Briskin, Development Director for Early Alert Canines, requesting a proclamation recognizing September as Service Dog Awareness Month in Lafayette.
Recommendation: Approve the proclamation recognizing September as Service Dog Awareness Month in Lafayette.
Councilmember Anduri commented that Early Alert Canines received a grant from the Community Foundation.
ACTION: It was M/S/C (Anduri/Candell) to approve the Proclamation recognizing September as Service Dog Awareness Month in Lafayette. Roll Call Vote: 5-0 (Ayes: Anduri, Candell, Kwok, McCormick, and Dawson; Noes: None).
City Council and Creeks Committee Meeting Page 20 of 20 September 9, 2024 D. Email from Raghav Ram, on behalf of the Neev Ronil Foundation, requesting a proclamation recognizing September as Childhood Cancer Awareness Month in Lafayette.
Recommendation: Approve the proclamation recognizing September as Childhood Cancer Awareness Month in Lafayette.
ACTION: It was M/S/C (Candell/Anduri) to approve the Proclamation recognizing September as Childhood Cancer Awareness Month in Lafayette. Roll Call Vote: 5-0 (Ayes: Anduri, Candell, Kwok, McCormick, and Dawson; Noes: None).
17. ADJOURNMENT – 9:12 p.m.
APPROVED:
__________________________________
Gina M. Dawson, Mayor
ATTEST:
_________________________
Joanne Robbins, City Clerk