City Council Meeting Page 1 of 38 September 22, 2025
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City of Lafayette
City Council Minutes
Lafayette Library and Learning Center – Don Tatzin Community Hall September 22, 2025 3491 Mount Diablo Boulevard, Lafayette, California 6:30 p.m.
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City Council Meeting Page 2 of 38 September 22, 2025
1. CALL TO ORDER – 6:30 P.M.
Mayor Candell called the Regular City Council meeting to order at 6:30 p.m.
2. ROLL CALL
Present: Mayor Candell; Vice Mayor Anduri; Councilmembers Cervantes, McCormick, Wotherspoon
Staff Present: Niroop Srivatsa, City Manager; Tracy Robinson, Assistant City Manager; Mike Moran, Engineering and Public Works Director; Greg Wolff, Planning and Building Director; Matt Luttropp, Engineering Services Manager; Gerardo Jimenez, Code Enforcement Officer; 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/McCormick) to adopt the agenda. Roll Call Vote: 5-0 (Ayes: Candell, Anduri, Cervantes, McCormick andWotherspoon; Noes: None).
5. PUBLIC COMMENTS (For Closed Session Items only) - None.
6. CLOSED SESSION
Conference with Real Property Negotiators
Gov. Code section 54956.8
Property: 986 and 990 Moraga Road, Lafayette, CA
Agency Negotiator: Niroop Srivatsa, City Manager; Tracy Robinson, Assistant City Manager; Joe Kuvetakis, Partner, John Cumbelich & Associates
Negotiating Parties: John Richman, Buyer
Under Negotiations: Price and terms of payment
REPORT OUT ON CLOSED SESSION
Mayor Candell announced that there was no reportable action from the Closed Session.
7. PLEDGE OF ALLEGIANCE – 7:00 p.m. – Mayor Candell led in the Pledge of Allegiance.
8. PUBLIC COMMENTS – (For Items not on the agenda)
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LIBBY HENRY said the Council’s withdraw of the letter of opposition to SB 79 was the deciding vote for that bill to pass in the State Senate. Senator Tim Grayson was the 21st vote and that is all they needed.
She understands the Council worked very hard, met with Senator Grayson, and decided that the best for Lafayette because supposedly all of Contra Costa County was exempted from the bill for now. She said 7 counties will be impacted immediately and one is Los Angeles County with the largest population in the State. This is an attack on single family home neighborhoods all over the State and an attack on democracy in California. Also, Scott Wiener is not good for his word, has gone back on anything he has ever promised, so she does not know why Lafayette keeps acting in good faith when nobody such as HCD, Scott Wiener, and the legislature does that, which she finds disturbing. She urged the Council to contact the Governor to ask him to veto SB 79 because it is not good for California.
Councilmember Cervantes commented that the final vote in the State Senate was 21-8 in favor of SB 79.
ROSEMARY KIRBACH, on behalf of Sunflower Hill and its affordable housing partner, Satellite Affordable Housing Association (SAHA), she is thrilled to announce that their project at 949 Moraga Road has been conditionally awarded $19,542,218 in the most recent Super NOFA funding round. Awards were publicly announced this morning and SAHA and Sunflower Hill would like to thank City staff, in particular, Niroop Srivatsa, Greg Wolff, Stefanie Cervantes, and Mala Subramanian, as well as the City Council for working with them so quickly and collaboratively to ensure they had a competitive application. This project would not have received full points or MHP funding if the land was not declared exempt surplus and donated.
They appreciate the City’s leadership and she also thanked Brian Griggs who provided invaluable assistance with entitlements. They look forward to working together with the City to complete the project’s capital stack, but tonight is an important first step. They are grateful to HCD and the Office of the Governor for their tremendous support for affordable rental housing. Their entire team cannot wait to create places and space where individuals with intellectual and developmental disabilities live and thrive.
Mayor Candell asked Councilmembers to stand up and they applauded Rosemary Kirbach on their team’s achievement. She noted this is a 48-unit project dedicated 100% affordable for developmentally disabled adults. This is a win that the City could not have imagined six months ago and they are thrilled.
Councilmember Cervantes said the $19+ million is like the Olympics—one fraction of a point tells the difference between a Gold medal and just being off the stand, and they got the Gold medal. The other metaphor is like the salmon run up the river to get to the spawning grounds. They have cleared a major dam but there is still work to be done. He thinks Ms. Kirbach and her team have done remarkable work.
Vice Mayor Anduri thanked Ms. Kirbach for bringing this project to Lafayette.
CAMPBELL FOSTER, Siesta Valley Foundation, said he is a Lafayette father of two; an 8th grader and a 10th grader. The Foundation is a 501c(3) non-profit whose mission is to protect, preserve, and enhance Siesta Valley. He asked for those who have heard of Cal Shakes and said they went into bankruptcy last year and his group is working with EBMUD to take it out of bankruptcy. They are taking over the lease from EBMUD and their next major milestone and goal is to sign the lease on November 1, 2025. He is planting a seed for City support and for support from the citizens of Lafayette. After the lease is signed, he can return to the Council and conduct a longer presentation. They are starting to get citizen support, spoke with a Councilmember and staff and would like to speak to the entire Council and obtain thoughts on what they want in this performing arts center.
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Vice Mayor Anduri recognized one of the most active residents who is celebrating a major milestone today. Today is Carol Singer’s major birthday. Carol is one of the most active residents, a long-time member of the Parks, Trails, and Recreation Commission, is not just a member of the current GPAC but also was a member of the GPAC that gave the City the 2002 General Plan. She also has been active and is currently the Vice President of the Lafayette Homeowners Council, active with the Friends of the Library, and other groups. She is also an expert in campaign finance so he wished her a happy birthday and thanked her for all she has done for the City. A round of applause followed.
ANYA SUROVITSKY said she is a local mother of two children and now has a son who turned 13 and as many kids, he and his bicyclist friends hang out by Stanley, riding on sidewalks, and their family did not allow E-bikes, but he has a collection of bikes he rides throughout town. He and his friends build jumps for them to spend time at the trails, EBMUD locations, they get police called on them regularly and bulldozers come and even everything out to make it new again. Her point is she is trying to get help as a parent for a teenager who needs an outlet for energy and as a local driver seeing kids riding bikes on sidewalks, and who sees injuries associated with biking unsafely. Her request is to find resources on how to approach this. She found there was an effort over 10 years ago to build a local bike park which did not achieve community support and was trying to see what can be done as a citizen and what resources she could find on bike safety, bike resources, restarting the BMX park, and e-bikes, as well.
Mayor Candell asked Ms. Surovitsky to email the City Clerk who can provide links regarding bike safety and the Council will take note about the potentially restarting talks on the BMX park.
ALLY SCHUMACHER said she is also mother to an 11-year-old and started a thread on Facebook where there is a lot of interest in a bike park. She thinks what they are looking for is not only information about safety but actually the building of something. It could start small and be a test pilot project in open space and kids are needing an outlet to ride because they are possibly not into team sports. Benefits include it being an outlet for kids, it is a healthy alternative to screen time, it is inclusive, it prevents crime through positive activities, community cohesion and belonging happens which strengthens connections between residents and kids, there are opportunities for youth leadership and responsibilities, teen volunteers have talked about how kids would be willing to provide maintenance in a park, posting events, mentoring other kids, and this boosts mental health in the community. She wondered what next steps are to consider getting a park created, and noted there are many bike shops interested in this which would help boost businesses, as well.
Mayor Candell asked Ms. Schumacher to also contact the City Clerk.
9. CITY MANAGER’S UPDATE
City Manager Srivatsa provided the following update:
From City staff:
• On October 1st starting at 5:30 p.m., staff will hold their third Open House for the Connecting Lafayette project at the Lafayette Elementary School. This is a project that includes constructing pathways for pedestrians and bicyclists along School Street and Topper Lane so students walking or biking to Stanley Middle School and Lafayette Elementary School will have safe passage to the schools. It will also link neighborhoods to the Lafayette-Moraga Trail.
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Attendees will have the opportunity to speak to civil engineers and landscape architects about the current 65% civil design plans, as well as landscape plans for each of the two streets.
From the Public Art Committee:
• Staff is pleased to announce the opening of the Fall Exhibitions. The work of three local artists are now on view at the Town Hall Theater and at the Library Galleries. An Artist Reception will be held in November and she asked to stay tuned for more details.
Mayor Candell opened the public comment period, and there were no speakers.
10. PRESENTATIONS
A. Tracy Robinson, Assistant City Manager
Introduction of Tim Przybyla, Finance Manager and Betsie Bernabe, Parking Enforcement Officer
Recommendation: Receive and file.
Assistant City Manager Tracy Robinson introduced Tim Przbyla, Finance Manager and provided an overview of his background and experience. He has been providing temporary assistance to cities in California which she described, and he has fit in well with the City team.
Tim Przbyla thanked the Council and staff and looks forward to working with the City of Lafayette., and Mayor Candell and Councilmembers welcomed Mr. Przybyla.
Chief of Police Williams then introduced Betsie Bernabe, the City’s new Parking Enforcement Officer and provided an overview of her background, experience, and hobbies, and he welcomed Ms. Bernabe to the City of Lafayette Police Department.
Betsy Bernabe thanked the Council for the opportunity and she looks forward to serving the community.
Mayor Candell and Councilmembers welcomed Ms. Bernabe to the City.
Mayor Candell opened the public comment period, and there were no speakers.
B. Nola Woods, Public Affairs Director, Contra Costa Mosquito and Vector Control District Update from the Contra Costa Mosquito and Vector Control District Recommendation: Receive and file.
Nola Woods, Public Affairs Director, Contra Costa Mosquito and Vector Control District, spoke about the need for a Trustee on their Board of Directors from Lafayette and they hope to drum up support tonight.
She thanked the Council for the wonderful Art and Wine Festival. She then provided the District’s history and how the District was created as a public health agency and in two years, they will have their 100th anniversary. The County transferred its rat, mouse and rabies risk reduction skunk program in 1993 to the District and this is when they changed their name. A vector is any insect or other animal that can transmit disease or cause discomfort to people or other animals. The District is not part of the County government and are funded through property taxes. When residents call for one of our services, there is no additional charge for them to provide those services.
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The Board oversees the District. Each trustee represents one city within the county and there are three trustees who represent the County at large. They currently have 20 trustees as they are in need of a trustee from Lafayette and San Pablo, and she will present to them next month. She then described the job of a trustee, spoke about the need for the City to include the District’s vacancy, the District’s educational services, statistics of residential services for the year, dangerous mosquito sightings and work to eradicate them and provide awareness, and removal of standing water on properties.
Ms. Woods announced the renovation of their main District Office on Mason Circle in Concord, are still providing public health services, and administrative staff have moved to a temporary location on Imhoff Drive. They anticipate the project to be done in time for their 100th anniversary in 2027. She thanked the Council for allowing her to share information about the District.
Mayor Candell asked and confirmed the City has the information needed to recruit people for the Trustee position.
Councilmember McCormick thanked Ms. Woods for the services of the District, spoke about mosquito and other vector problems years ago when the District did not exist, and said the City will get the word out to serve on behalf of Lafayette.
Vice Mayor Anduri said they had the ground-nesting yellow jacket problem a couple of months ago and within two days of contacting the District someone was out to resolve the problem. He noted Jim Fitzsimmons had been Lafayette’s trustee for almost 20 years and the City is now advertising through the Weekly Roundup as well as on the City’s website.
Ms. Woods then provided requirements and meeting information for a trustee, stating the Board meets every other month at Imhoff Drive Board Room, they can volunteer for some of the committees, and while it is not an extensive time commitment, it is a fulfilling role as an advocate in their communities in doing public health work.
Councilmember Wotherspoon thanked Ms. Woods and asked and confirmed that the Aedes aegypti mosquito species (yellow fever mosquito) are daytime biters, common in Southern California, lays individual sticky eggs that can stay viable for six months or longer, and they came to the United States 15 years ago through plant imports.
Councilmember Cervantes thanked Ms. Woods and recognized the long-term and critical work of the District.
Mayor Candell opened the public comment period, and there were no speakers.
C. Gerardo Jimenez, Code Enforcement Officer and the Code Enforcement Appeals Board Report on Code Enforcement Program Annual Update
Recommendation: Receive and file.
Code Enforcement Officer Gerado Jimenez gave a PowerPoint presentation of the annual update, stating their goal is to have voluntary compliance with residents. He spoke about first sending courtesy notices out to residents on complaints, then going out to field-verify that the complaint received is still an issue.
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He then follows up with a warning notice which comes with a deadline. After 15 days, if he still does not receive word from the property owner or responsible person, he will go back out and verify the violation is still occurring and will follow-up with a Notice of Violation which is a final notice. If nothing is received from the responsible party, it may lead into potential citation, fees, or civil action and often will get referred to the City Attorney’s office for review.
Officer Jiminez then gave an example of a challenging case which involved six months and several hours of staff time and inspections. The case has been referred to the City Attorney’s office with the City hoping to recover its administrative costs associated with the case.
He included last year’s statistics in the staff report to show open cases, which he described as 692 open cases with closure of 681 of those cases. He began employment with the City in March and for 2025 in total, the city has 629 open cases and he feels they are on course to having more complaints this year now that word is getting around that the City has a full-time Code Enforcement Officer. He then displayed 2024 statistics by department involving new ADU laws, leaf blower complaints which was the number one complaint, spoke of success in abating long-standing issues with residents, vegetation and debris removal examples, and desired future needs to update the code enforcement software and a laptop that would allow inspectors to work remotely from the field, and added participation in community events.
Mayor Candell and Councilmembers thanked Officer Jimenez for his enforcement success and report, hoped for a downward trend in gas leaf blower complaints, and thanked him for providing the Council with future needs and resources.
Councilmembers posed questions about how the City could further educate the community about gas leaf blowers and the process of reporting someone, the complaint process, and differences between the City and Con Fire’s interactions with abatement and process. Officer Jimenez said he sees many residents with signs on their front yards and are active in handing out brochures to landscapers so the City is adequately informing the community. Regarding the complaint process, he asks that photos are submitted in order to proceed with a courtesy notice to the homeowner. He sometimes asks for a landscape schedule so he can witness it himself so he can issue a notice of violation to the homeowner and he will inspect afterwards. Regarding abating fire hazards caused by overgrown vegetation and debris, Officer Jimenez said he has had interaction with Con Fire and they have referred complaints to him about overgrown vegetation and some after the weed abatement season and it gets resolved fairly quickly.
Public Works and Engineering Director Mike Moran noted that Code Enforcement came into their division and are very thankful that Officer Jimenez is with the City. He has been here six months and the community is active in reporting things. His numbers are impressive and his personality is a good fit with this position.
Mayor Candell opened the public comment period, and there were no speakers.
Mayor Candell and Councilmembers thanked Officer Jimenez.
11. CONSENT CALENDAR
Mayor Candell asked and confirmed Councilmember Cervantes wished to remove Item 11.A. Cheryl MacDonald requested removal of Item 11.B. There were no further requests and no public comments on remaining items.
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C. City Council Vacancy Appointment Policy
Recommendation: Approve the City Council Vacancy Appointment Policy.
D. Extending and Formalizing Outdoor Dining Encroachments in Downtown Lafayette until January 2029
Recommendation: Extend the outdoor dining encroachment policy until January 2029 and direct staff to formalize the policy by requiring participants to enter into an encroachment agreement that includes indemnification of the City, insurance listing the City as an additional insured, and ADA-compliant seating.
E. Easement Quitclaims of Open Space Easement and Trail Easement associated with a portion of 4123 Happy Valley Road (a portion of APN’s 247-010-027 and 247-010-028) (Property) Recommendation: Authorize the City Manager to execute the easement quitclaims for the open space easement and trail easement for recordation
F. Updated City Council Assignments
Recommendation: Approve.
ACTION: It was M/S/C (Anduri/Wotherspoon) to adopt Consent Calendar Items C, D, E, and F. Vote: 5-0 (Ayes: Candell, Anduri, Cervantes, McCormick and Wotherspoon; Noes: None).
12. OLD BUSINESS – None.
13. STAFF REPORTS – None.
14. PUBLIC HEARINGS
A. Greg Wolff, Planning and Building Director
APPEAL by Jeff and Pam Swarts, et al, of the Planning Commission’s Approval of: HDP06-24, TP08-24, GR04-24, V04-24 Pedneault (Owner) R-10 Zoning: Request for 1) Phase 1 & 2 Hillside Development Permit, 2) Category 2 Tree Permit, 3) Grading Permit, and 4) a Variance to reduce the side yard setback and remove 14 trees for the construction of a 2,307 sq. ft., two-story single-family home with 33'-6" max ridge height on a vacant lot at 1133 Sierra Vista Way, APN 232-052-019.
Recommendation: Review the project, conducted a public hearing, and adopted Resolution 2025- 45 finding the project exempt from CEQA, denying the appeal, and approving the project subject to conditions.
Mayor Candell and Councilmembers provided their individual disclosures regarding visits to the site, review of minutes, and discussions with staff and Planning Commissioners.
Planning and Building Director Greg Wolff gave the staff report and overview of the appeal filed by Jeff and Pam Swarts of the Planning Commission’s approval of 1) Phase 1 & 2 Hillside Development Permit, 2) Category 2 Tree Permit, 3) Grading Permit, and 4) a Variance to reduce the side yard setback and remove 14 trees for the construction of a 2,307 square foot, two-story single-family home with 33'-6" max ridge height on a vacant lot at 1133 Sierra Vista Way.
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The original proposal was for a +4,200 square foot home which was reduced in size to +2,600 square feet, and in 2018 a new Phase I application was submitted for a smaller home and the PC found it to be more responsive to comments provided earlier, more sensitive to the site and neighbor, and the PC approved the Phase I project which was appealed to the City Council and approved it. In 2020, a Phase 2 was submitted with all details which grew by tens of feet and the DRC approved that and was not appealed.
The initial Phase 1 and 2 applications have a one-year term which can be extended for a second year by request and both lapsed and the property owner re-applied in 2022 for a Phase I with no changes which was approved. Similarly, the Phase 2 application expired and they submitted a request to approve it again with no changes and that was approved. Neither Phase 1 or 2 applications were appealed. With the 2022 and 2023 entitlements, the property sold, was in plan check and through an extended plan check by the County, the deadline for entitlements of Phase 1 and 2 expired. So, staff is back with a new application filed in 2024 for a combined Phase 1 and 2 which is commonly done for a 2,300 square foot residence, which has been appealed.
There is a variance which is a component of the overall project which was previously approved and is included in the project. The project would entail 750 cubic yards of soil removal. The house is bunkered into the hill with a driveway and there is a tree permit to remove 14 trees. He provided a diagram of the site showing distances to neighbors with a minimum lot size of 10,000 square feet or ¼ acre and 20,000 square feet or ½ acre.
HPD is a Hillside Plan Development which are PUDs and have customized zoning standards internal to the project which was Sessions and Northridge at the top. It is a flat roof design and steps up the hill and the roof is +33 feet above the garage level. The primary frontage is on Sierra Vista and the secondary frontage is adjacent to Sessions Road as it climbs up. There is a 50-foot right-of-way. The City has a trail easement in that space and he presented a view of the story poles. In 2017 and 2018 as part of Phase 1, the opportunities and constraints analysis was done which identified where development would experience the least amount of constraints, which he displayed, and the Swartz residence is the house to the right of the subject parcel.
Mr. Wolff then displayed the site plan showing the home, footprint, and the driveway off of Sierra Vista.
There were previous concerns about traffic, circulation and potential conflict were the residence was to access off of Sessions and the solution is to come directly off of Sierra Vista which mitigates any concerns.
He displayed the Swartz residence and he said dimensions are substandard from the residence to the property line, and not meeting the standard setbacks in the zone. He then described the project’s floor plan and elevations.
There are 14 trees proposed to be removed which have declined over the years. The City’s arborist acknowledged their condition and previously there were concerns expressed about the health of the trees. After the construction of the house, new vegetation will be planted and Mr. Wolff presented the proposed landscape plan which was approved by the PC. He pointed to the stormwater capture tank on the east side and the project will propose a head wall upslope from the house. The owners have omitted the capture tank which was intended to store water and can confirm this during their presentation.
Mr. Wolff then presented renderings from the 2020 application which shows the massing at the time. The architecture is not the final approved plans, but shows the stepping of massing and how the house is bunkered into the hill. The auto court is lower than current grade and the retaining walls retain the existing grade closer to the eastern property line.
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Councilmember Cervantes asked and confirmed that the garage door faces south and staff is displaying the eastern side. The windows to the right on screen of the wood element feature are facing east which is the Swarts property; however, their house is well off screen and south below the 2020 rendering label.
Vice Mayor Anduri asked and confirmed that after staff’s presentation, the owner will have 10 minutes to present and thereafter, 10 minutes from the appellant.
Vice Mayor Anduri asked how high the retaining walls will be, and Mr. Wolff said he recalled they are 3 to 4 feet in the auto court hammerhead area which will diminish in height when traveling downslope towards Sierra Vista.
Councilmember McCormick asked how relevant the minor modifications are from the 2020 plans. Mr.
Wolff said they are intended to give the Council a general sense and show the massing intentions throughout the process and the condition of the driveway. The project architect can speak to the design changes that have occurred from that time.
Mr. Wolff continued and displayed photos looking eastward from the story poles and towards Sierra Vista showing the Swarts residence, described the City’s measuring from access easements which establishes the same building location, findings that need to be made relating to it complying with the purpose and intent of the land use and zoning district, and impacts that deprive the normal usage of the property such as steep slopes, existing heritage vegetation, size, shape, topography, both of which relate to this project.
Staff recommends the Council find the project exempt from CEQA and adopt Resolution 2025-45 finding the project exempt from CEQA, denying the appeal, and approving the project subject to conditions.
Councilmember McCormick referred to the owner’s non-use of the catch basin and asked staff to describe how drainage is being mitigated. Mr. Wolff displayed the plans showing the overall site, the area upslope of the house showing the new headwall and concrete apron, a trash rack to catch any debris so it does not enter the system and clog it, contours going up and coming back showing where water should flow when it rains going into a catch basin storm drain inlet and is routed along the east side of the house below ground.
The tank is eliminated and it comes out to the public stormwater system.
Councilmember Wotherspoon asked if the tank was an option for use of water to irrigate and not necessarily for the drainage plan to function. She thought the City prefers water be managed on site and it looks like it is going to the 12” storm drain. Mr. Wolff said yes, it was not intended to have such capacity as to serve as a detention or retention basin, and he invited the City Engineer to speak to this as needed.
Engineering Services Manager Matt Luttropp further explained that the City does like to see runoff dissipated to landscaping to the fullest extent practical. The storm drain bypass system created there is appropriate for what they are doing. The runoff from the home is being discharged to the swale downstream of where the basin is which is dissipating water to the south of the detention tank over the landscaping that remains on site, so they are complying with what the City likes to see. There is also a swale on the upper part of the home as well that is carrying water to another drainage system which gives a chance for more water to soak into the ground.
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Councilmember Wotherspoon asked if there was a condition of approval for clearing or maintaining the trash rack, and Mr. Luttropp said he thinks the applicant has a vested interest in keeping it clear because it would go into their house. Mayor Candell asked and confirmed the Council could add that as a COA, and Mr. Luttropp confirmed.
Mayor Candell said with the water tank gone, it shows a fence underneath and asked if both are gone from the design. Mr. Wolff deferred to the applicant team to address the fence which is omitted.
Councilmember Wotherspoon referred to the pull out on Sessions Road and asked if off-site parking is required. Mr. Wolff said no, he does not believe it is. They meet the off-site parking requirements in the proposed garage which was a feature added because of potential concern with guests visiting.
Councilmember Wotherspoon said from the prior application she asked how much the house siting moved towards Sierra Vista. It looked like it is shifted south. Mr. Wolff deferred to the applicant, but he does not believe it was shifted much.
Mayor Candell referred to the stairs on the east side and asked if those are required. The first design did not have stairs and had them just on the west side. Now, this design has both east and west and asked if they were required for egress or safety evacuation. Mr. Wolff said not from a local planning code; however, there may be building or fire code requirements, or just the practicality to circulate around the residence to maintain it and deferred to the applicant.
Councilmember Cervantes said away from this there was an application filed or a permit filed for work on Sessions Road where it connects with Sierra Vista. He asked if there are plans for that. Mr. Luttropp replied there was a sketch provided and he provided comments back on that. They wanted to widen Sessions Road but that sketch was incomplete and did not show the extent of what they were trying to do. He believes specifically what was missing was what they were doing with the existing curb and gutter, what is the extent of removals, how are they going to grade this, etc. and he has not heard anything back.
Councilmember Cervantes said there is a 50-foot right-of-way on Sessions Road with 25 feet on each side.
He asked if it indicated it is within that right-of-way. Mr. Luttropp said he did not recall. Mr. Wolff said he believes it was and his understanding is that the property owner has asked their civil engineer who is aware of the submittal regarding the widening of Sessions Road for the purpose of making ingress/egress for emergency vehicles and other vehicles easier has asked her civil to look at that issue and has a potential design solution that would not necessitate widening of the flare as Sessions comes down to Sierra Vista.
Mayor Candell said she was talking with the City Attorney in terms of whether the City can still get the kind of improvements at that intersection without any other legal hurdles or, whether they would have to ask the applicant for an easement or something else. The official answer was “no.” They should be able to do all improvements without tying it to this development.
Mr. Wolff noted the Council can approve the project as proposed AND the circumstance of Sessions as it intersects Sierra Vista which is an issue because Sierra Vista is crowned with the gutter going along the demarcation between Sessions and Sierra Vista, if the contours change and asphalt is added and drainage is adequately addressed, it can be done within the existing extent of asphalt. They would not necessarily need to widen and there may not be any benefit to widening existing paved surface.
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Mayor Candell noted this is a key point in terms of safety and the wishes of people up Sessions Road to be able to fix that intersection even if this gets built.
Mayor Candell called upon the applicant.
NANCY PEDNEAULT, Owner/Applicant for 1133 Sierra Vista Way, gave a PowerPoint presentation, stating she currently resides in Danville with her daughter and has been working for 15 years in Pleasanton for a company she helped start which specializes in designing and manufacturing advance instrumentation for electronic microscopy. She is very involved in the outdoors and comes to Lafayette all the time for hiking, biking, and roller blading. She currently rents and wanted to live in Lafayette. She likes the community and what it has to offer and in the summer of 2023 she was looking for a home. There were not many homes near the downtown with a semi-rural character and came across this listing. Sierra Vista Way is essentially First Street. It is a great location, close to BART, schools are great, and the air and water quality is great with many activities. The listing was a vacant lot with preapproved plans. She did not feel so ambitious that she would want to start from scratch, and the house was a good size and not too big.
She began doing some background on the lot and talked with neighbors on both sides and they were renters so they did not know anything about who owned the lot and why it was for sale. It listed the name of the architects and she tried to go to their firm and had moved, but asked her real estate agent to find out who found out that the former owner had passed away. She went to the City planning office to find out how everything works and they said she just needed to make the construction plans and then go through conditions of approval and reviews. It did not sound too difficult and she bought it on August 1, 2023. The approval was good until February 15, 2024 and extendable for another year so she thought this was doable. She wanted to use the same architect and same consultants as much as possible but unfortunately she was not able to get the original group of people. One of the original people is the arborist and the civil engineering firm; Humann Company which is based in Lafayette. She engaged with her architect, Kim Nguyen who researched the past approval and how to move forward. She is also a structural engineer so it was helpful, and she hired a general contractor with whom her architect works with a lot in the area around Danville and Alamo specifically, and her architect also built her house from scratch in San Ramon.
She then proceeded to adhere to as many COAs as she could. The initial start was slow. They needed an updated soils report which took until Christmas and then afterwards, things just took a long time. There is coordinating among professionals when they have other projects and there must be revisions and then they go back to civil engineering and go back to the arborist. There were 38 COAs and she got through all of them, got the plans stamped, submitted to Contra Costa County before the entitlements expired but there is no way someone can get 6 to 9 months at the County level. So, they expired and she had to start all over again which is what she is doing.
In June she had a combined hearing and it was approved. Then it was appealed and we are here. She is wanting to proceed with the project and thinks it will be a good home in the end. She knows some adjustments may need to be done. She has since consulted with two of the appellants to understands some of the issues and worked hard to address some of the issues at the intersection of Sierra Vista Way and Sessions Road and asked her civil engineer to work with the City Engineer to see how it can be improved, as well as calling the Fire Department herself to find out what needs to be done, and they have worked on the issue as well.
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Since that time, she got Con Fire approval in January 2025 and received Central Contra Costa Sanitary District approval on July 11, 2025. She did retain a lawyer because there were some legal issues raised and David Bowie would like to address those issues.
DAVID BOWIE, Attorney, said this is a lawful lot under the Subdivision Map Act and there is an absolute right to develop something with economic viability to it and this house is exactly what meets that particular standard. It is critical that it be approved because there was only one other potential location which was the northwest corner of the lot on the opposite side of Sessions Road. The problem there is that they know it is extremely steep of about 40%. It has lots of topography limitations and there are restrictions about grading. Basically, the only place they could build is right where it is proposed. It is restricted by physical conditions and regulations and the net result is that this is something that clearly qualifies in granting of a variance. He thinks staff has done a wonderful job in the staff report setting forth the reasons for that.
The road easement is probably the key ingredient of this entire matter. It has been suggested that somehow the road easement goes through the entirety of Lot 66 which is not the case. It is speculation. Among other things, the road easement was never intended to be anything other than non-exclusive. If it was intended to take the entirety of the lot, it would have been an exclusive grant of easement which it is not. It is very clear this was by way of a floating easement. Essentially no one throughout this entire development would take place. It might vary in terms of location and that location was ultimately fixed. Sessions Road is 50 feet wide all the way up the street and 50 feet is the amount of width that would normally be required for this particular access road. There is a trail easement of 50 feet that fits in as well. There is no way one could argue this is greater than a 50-foot easement at the very most. The actual paving of Sessions Road is only 20 feet, so there is actually a huge variation and additional area where further work could be done on the road if to the extent it was actually necessary.
The black letter law in terms of easements clearly indicates that a fee owner is entitled to the full unrestricted use of that lot with the exception of any actions that would unreasonably interfere with the actual use of the easement. Case law is very consistent that in the event there was an actual dispute of some sort, the restrictions upon the tenement or the easement owner would be very strictly construed because public policy favors the productive use of property. In this instance, there is no question that the development of this particular property will not adversely impact at all use of Sessions Road and to the extent there is any uncertainty about Sessions Road, it’s long history of use clearly defines the extent and nature of the rights intended with respect thereto. So, there is not an issue and he asked the Council to approve this project.
Councilmember McCormick said the owner spoke about the history of purchasing the property and he asked if Ms. Pedneault took the plans that had been approved and moved forward with them or he asked if there were changes made.
Kim Nguyen, Professional Engineering Corporation, Architect, said she helped Ms. Pedneault with the architectural plans for this project. The only thing they have changed was the floor plan. There is an angle on the building in the rear of the property which she pointed to. The front angle would still stay the same.
She pointed to the next slide where they highlight what is changed. They want to square out the rear of the building so the owners can have a decent closet. This was the only change made to the floor plan. She then referred to the garage and asked staff to zoom in on the graphic. She said this is a 20-foot depth garage space which was approved and they moved the garage front door 2 feet to the front so now from the 20- foot depth garage will become a 22-foot garage, but the garage is offset 4 feet from the balcony above so it is still inset from the furthest point of the building.
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Vice Mayor Anduri asked to go over the window plan on the east façade, stating he could not match up the windows to the floor plan to see how far above the floor the windows start. He is trying to figure out what the view of the neighboring house is given the windows here. As background, he is asking this because the house that came before the Council in 2009 had many fewer windows on the east façade and the windows on the east façade started 5 to 6 feet above the floor level so someone would have to be quite tall to be able to look down at the house on the east side.
Ms. Nguyen asked staff to show the basement floor plan on Slide 10. Mr. Wolff presented the east elevation as approved in the prior plans and windows on the east elevation. He then displayed the current east elevation plan which is A.08. Ms. Nguyen explained there is a door which is where the kitchen comes out and then there are windows where the sink is. Mr. Wolff then pulled up Sheet A.08.
Vice Mayor Anduri noted that Council must make findings as to protection of privacy for the neighbors. He does not get any sense from the drawings what it is that can be seen out of the windows. Long ago when this project was first proposed there were no windows that looked down on the neighbor. Now, there are a number of windows that look out on the east side, and he was trying to figure out if those windows are blocked by anything and are the 5 to 6 feet above the floor level.
Ms. Nguyen stated this is the living room and she asked to move the slide to the left to get the elevation number. From the ground where the garage is, it is about 10 to 12 feet up where the first living room window is which is the second floor above the garage. One is the door that provides access out which is opened to the patio outside the house, which is currently is a glass door. They can always modify that to be a solid door.
Vice Mayor Anduri asked and confirmed next to the door is a window and this looks out angled to the front of the road. The rendering shows they can view the neighbor. Then, going towards the right, this is the window for the living room and she confirmed someone standing in the living room can look out that window to the neighbor’s house. She noted there are many trees which are about 5 feet from the property line which are higher. They will be able to see the roof of the neighbor’s house but not any of their windows. The next is a kitchen door where they come out to bring out trash, etc. There is a retaining wall that will go up which is about 3 feet.
Vice Mayor Anduri said therefore, someone in the kitchen standing there would look out over the retaining wall. Ms. Nguyen then pointed to the kitchen and said there is a sink where the window is located and someone standing at the sink would look over the wall and there are trees and again, they can see only the roof of the neighbor because their house is down much lower compared to this property. She then pointed to the master bedroom and the windows are about 3 feet up from the floor. These look out to the east and can look down to the roof of the neighbor. They cannot see the patio from those windows and only the roof between the trees.
Vice Mayor Anduri asked Ms. Nguyen to explain what trees will be planted there. Ms. Nguyen pointed to the circle where Oleanders will be planted so these are bushes, but they can improve this by putting trees to shade the neighbor as needed.
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Vice Mayor Anduri said the diagram shows the trees fairly close to the property line and at the point to the south, the property line drops down and it is about 5 feet from the neighbor’s house. Ms. Nguyen pointed to the plan showing the neighbor’s property and said the house is way back and the neighbor is towards the front of this property. When standing and looking out, they will not be able to see the neighbor.
Vice Mayor Anduri said he has gone out to the site and he definitely sees the neighbor’s house. From the end of the neighbor’s house out to the property line there, it is about 10 or 15 feet to where the hill goes up. The property line is actually in between the neighbor’s house and where the hill starts up. So, the project at that level is right there next to the neighbor. When going to the north, he asked where the hill starts to rise. He was trying to find out if the bushes will be planted on a higher level.
Mr. Wolff confirmed and pointed to the area where the topography transitions from being lower than the auto court. They would come up 3 or 4 feet and it will dive off towards 1139. This is the back of the house and staff has imagery showing there is a narrow access at the rear of the house, but about 5 to 6 feet back, it goes up very steeply. Before even reaching the face of garage, the topography is climbing and there is a ridge that goes up. As you are on the landing outside the kitchen, one would be looking into an upslope, hence the existing wire fence that is there. So, they cannot see over the intervening ridge down into the neighboring house.
Vice Mayor Anduri asked to move the cursor to the north on the house and said if they are in the house, he asked if they were looking out at a retaining wall. Mr. Wolff said no, they are looking at a short retaining wall of 3 feet, but beyond that, the topography is going up.
Vice Mayor Anduri said if on the second floor of the house, they are still looking down at the neighbor and there is no hill blocking them from the neighbor. Mr. Wolff confirmed and said they would be able to see the roof and this utility area where the AC condenser is, the ladder and Tuff Shed, gravel with the flagstone.
Vice Mayor Anduri asked if it is the intent that the bushes shown on the plan would be tall enough to block the second story windows. Ms. Nguyen said yes, they are hoping to do this.
Vice Mayor Anduri said the other thing he was trying to explore is the picture shown in 2020 helped. With this plan coming off of Sierra Vista and moving up to the house, one of the appellant’s concerns has been cars coming up that driveway, their headlights will go into their windows. His understanding from the rendering was that actually, the driveway is dug into the hillside and below the grade on either side, and the retaining wall would block headlights. Ms. Nguyen confirmed this is correct.
Vice Mayor Anduri said then basically, the entire driveway is below grade on both the east and west with retaining walls on either side. Ms. Nguyen confirmed.
Councilmember Cervantes said whenever he has purchased property they have received a title report and title insurance, and he confirmed Ms. Pedneault obtained that for this purchase. He said these indicate easements and he asked if the title report indicated the 50-foot right-of-way perimeter on Sessions Road.
Ms. Pedneault said she provided the title report to staff. It does not actually clarify that and the title report does not say the easement covers the entire property.
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Mayor Candell referred to the water tank which will be removed. She assumes there is a grading plan and a fence down below. Ms. Pedneault said at the June 16th meeting, it is a COA to do something about the water tank. It was either too high or too close to the property line and she said it is an environmental item and she agrees there is not a lot of space there and she can remove it. But, the subsequent plans by civil engineering for drainage have not been done and this is why it is still on the current plan. It is a COA so depending on how this meeting goes, they will have to make that revisions.
Mayor Candell said if the Council adds to the COA that it get removed, she asked and confirmed the lower fence can also get removed.
Councilmember Wotherspoon asked what is the plan for retention. There are some current retaining wall structures and one was underneath the water tank. She asked if there were plans to construct retaining walls, as the fence was just a screening fence. Ms. Nguyen said they have not finished the finalized grading plan, but if it is high they need to provide a retaining wall as needed per the City’s requirements.
Councilmember Wotherspoon said this would be after approval of the project and she asked if it would go through additional plan sets for the City to review. Mr. Wolff said the civil plan shows that the solid contour lines are tying back into existing grade above that retaining wall mentioned which serves the adjacent property. The adjacent property cut into the existing grade from Sierra Vista northward and, to some degree, westward onto the subject property. That is what this stippled dotted pattern is—the kind of riprap slope coming up. It would tie right into that existing grade and he does not see any reason from what the design shows to do any work beyond that top of slope eastward.
Mayor Candell called upon the appellant for a 10-minute presentation.
K. KASEY CORBITT, Esquire, attorney representing the appellants, asked Mr. Wolff to display Slide 7 and said there have been many reasons for this appeal and some of the specifics of those have already been discussed in significant detail. She wanted to focus on the bigger picture issue which is that the entire lot is burdened by easements. This is on the subdivision map that was approved by the City. She pointed to Slide 8 and Lot 66 which is also 1133 Sierra Vista Way. There are two easements reflected on this subdivision map. One is the 50-foot trail easement. The other is the entirety of the lot which is reserved for easement for access and utility easement. This inures to the benefit of all of the uphill lots of which there are 22.
The applicant’s attorney mentioned that the black letter law is that a fee owner is entitled to the full extent of that lot use to the extent it does not interfere with the easement. There is no way to build on a lot without interfering with an easement if the entire lot is subject to an access easement. She would refer the Council to the decision in Cottonwood Duplexes, LLC versus Barlow, which she attached to her letter. An almost identical issues came up where a City had denied a permit because there was a non-exclusive easement for a roadway that appeared on the subdivision map. It was not even clear that Mr. Barlow needed the easement, but he had the right to it. So, it went to court and the court said if they were to accept Cottonwood’s public policy argument which is the same public policy argument that the applicant’s attorney just made, they would be sanctioning the parcel extinguishment of a granted easement when it was the voluntary unilateral actions of the servient owner that rendered a portion of the servient tenement covered by the easement unusable. It is the exact same situation here.
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She knows the Council does not want to be in the business of enforcing private easements. They have indicated as much previously, but they cannot be in the position of extinguishing easements that very clearly appear on a subdivision map. That is what the grant of this permit will do. It is the role of a court to determine the scope of the easement, the use of the easement, and whether or not development infringes on the use of that easement. There are a couple of other cases she referred to the Council, as: Valley v.
Scully which is 192 Cal. 175; An easement does not terminate unless the owner also manifests an intent to abandon its future use. In Winslow v. City of Vallejo, 148 Cal. 723, on page 725 the court said, “If the language of the grant in question viewed in light of all conditions existing when it was executed clearly gave to the defendant a right in excess of the one actually used, such right would still exist notwithstanding the exercise for a time of a lesser privilege.”
Whether or not Sessions Road is 50 feet or 20 feet is of no matter because all of the uphill lots are afforded the entire use of the parcel. While that may not seem a fair result, unfortunately California law has set it out that these easements that appear on subdivision maps must be honored or they must be abandoned. And the applicant’s remedy is to go to court and seek an abandonment of the portion of the easement that is not being used. But, that is not the role of the City Council to engage in. So, while there are privacy issues and drainage issues, the fact is, every owner uphill is entitled to rely on what appears on the recorded subdivision maps. This is not a subjective belief about what they are entitled to. This is what the City approved years ago when Mr. Jakovina set up these developments uphill and he was the owner of Lot 66 at that time.
Ms. Corbitt also referred the Council to Tract Development Services, Inc. v. Kepler, 199 Cal. App. 3d 1374.
The court there said, “To divest them of rights (easement rights) requires due process of law.” This is not the forum for that due process with all due respect.
She asked staff to return to Slide 6 and on here she cites Tusher v. Gabrielsen which says this is the same black letter law that the applicant’s attorney was referring to earlier. California case law holds that all of the owners whose deeds refer to the subdivision map are entitled to rely on it. With her letter, she submitted a copy of the deed for 8 Sessions Road which is Mr. Harmon who will be speaking later that shows a reference to this subdivision map and the easements thereon.
She explained that Mr. Harmon is looking to take advantage of some of the new laws in California where you can add an ADU or something to provide more housing because of housing needs. He will be foreclosed from that opportunity which, in and of itself, is a taking if the house and the development are able to be built in the way they are currently being proposed because he would need that access up through the side, including a small portion of 1139 Sierra Vista Way. So, by making this decision to grant a permit and a variance with it, what the Council is doing is saying that part of the easement that appears on the subdivision map no longer exists and you do not get to use that anymore. This means Mr. Harmon does not get to use it, the 21 other owners do not get to use it and, whether or not they have been using it thus far, the black letter law cited to the Council this evening and included in her materials, clearly says they are entitled to those easements.
But, if they want to talk specifics, the architect just said that the plans had not actually changed all that much.
The corners were squared out and the garage was changed a little bit, but those windows which were addressed, there are new windows there, a new staircase, the architect made reference to a patio out there and this is all going to be looking straight into the Swarts’s house and they can address this in more detail later.
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She thought it was important to raise the point that the staircase, extra windows, and the patio previously had not been approved and the permit was allowed to expired and new things were added to it which is of particular concern to the neighbors. She lastly referred to Slide 12 which shows a rendering of the differences between the two plans.
Councilmember Cervantes said he received Ms. Corbitt’s letter this afternoon and it was missing a page so he was trying to understand as best he could the argument being made now. If there was a party in an adjacent property that wanted access for an ADU, Ms. Corbitt’s argument is that they could in effect carve out a roadway on this parcel so they could access their property from Sessions Road and not use Sessions Road which is a thoroughfare used for decades.
Ms. Corbitt said the subdivision map provides there are access easements across the entire lot. She thinks it would depend on whether or not litigation ensued regarding that and what a court said about the scope of the easements and what the City’s particular planning is. In theory, yes, this is what an access easement is.
Councilmember Cervantes said he is not an expert on the subdivision map act, but having gone to the site, it goes uphill. There is a logic where one would say, there is an existing thoroughfare which is in use. The argument Ms. Corbitt is making is that someone may want to access their adjacent parcel and carve into Lot 66 to get there.
Ms. Corbitt said yes, and there previously was a trail and set of stairs that went up that had been removed.
People have used it historically for access in other areas than just Sessions Road.
Vice Mayor Anduri asked if Ms. Corbitt’s view is that the easement across the entire property is a nonexclusive easement or an exclusive easement. Ms. Corbitt said it is a non-exclusive easement but it does burden the entire property and that was the exchange Mr. Jakovina made for being able to develop. He allowed that to be a non-buildable lot. There is plenty in the record about how it has always historically been treated as a non-buildable lot.
Vice Mayor Anduri asked that, therefore, what Ms. Corbitt is saying is that any property owner who benefits from the easement then could use Lot 66 for their own purposes to get to their property. Ms. Corbitt said the entire property is covered by an access easement that inures to the benefit of those 22 owners.
Vice Mayor Anduri asked if one owner uses it to get to their property and then other owners cannot use it.
Ms. Corbitt said then that is the realm of the court to decide whether or not one of the easement holders is using it in a manner that exceeds the scope of the easement or is causing harm to the servient tenement.
Vice Mayor Anduri asked if there is a reason why the appellants have not gone to court to enforce their easement or to get an injunction to stop the development. Ms. Corbitt said she actually believes this is the reverse way around. She does not think anybody has wanted to spend the resources on what seems to be a fairly obvious issue and so they also are required to exhaust their administrative remedies which this is an administrative remedy. Should the Council vote to grant the variance and the permit, the next step for appellants is a Writ of Mandate.
Vice Mayor Anduri referred to the 2008/2009 where the Council went through this process. The appellants went through their administrative remedies and he asked if there is a reason why they did not go to court at that point. Ms. Corbitt said the Council would need to ask them because she was not representing the appellants at that time.
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Mayor Candell asked if it was Ms. Corbitt’s opinion that if the Council approves this project somehow it makes that easement or the rights of that easement change. Ms. Corbitt confirmed and said because on the exact area where the development is planned it states it is for access. It does not define that as being vehicular or limited to Sessions Road in any way. What the City Council is doing in effect is saying they have determined that the scope of that easement is actually moved over. It is not a floating easement because the subdivision map clearly sets out the scope of the easement. What the City Council is saying is that it is moving your easement to Sessions Road. You now only have the one and not the two that are reflected on the subdivision map. That is an extinguishment of the right that is over on that side of the parcel. That is really the role of a court because it is a contractual issue.
Mayor Candell stated, however, the court could overturn that. If they looked at this and said that was the wrong decision, the court could overturn that or grant an injunction regardless of what the Council does.
Ms. Corbitt said a court could, but it really is the purview of a court and not the City Council to decide whether or not that part of the parcel is being used, whether the easement is being used, or whether or not it has been moved somewhere else. This is not the role of a City Council.
Councilmember Cervantes said then if it is the role of the court and not the City Council, he asked what is the point of the argument here. Ms. Corbitt said what they are asking is that the City Council not grant the permit or the variance because it should not be acting in a manner that extinguishes an easement.
Councilmember Cervantes said but if it is the role of the court to determine the easement, it is not the Council’s which has been the City’s position for almost 20 years this has been going on. In the end, the appellants or other parties could sue. The property owner would defend or their title company would defend, and he asked what is the Council’s role here and he said he did not understand this.
Ms. Corbitt said they shouldn’t have to go to court and spend money on a petition for a Writ of Mandate.
What the Council is deciding today is whether or not a house can be built on top of someone’s easement.
What she is saying is that the Council should not do that.
Councilmember Cervantes said but it is the role of the court to determine that easement and not the Council’s. Ms. Corbitt said in Cottonwood, there the city said this appears on a subdivision map. Cities cannot grant development in the middle of someone’s recorded easement.
Councilmember Cervantes said that might be a 100% legitimate argument made before a court of law. Ms.
Corbitt said it is a separation of powers issue. The Council should not be deciding the scope of a recorded easement that appears on a subdivision map. They can take note of the fact it exists and say, we are not going to grant development in this because it is not their place to determine the scope of the easement. She can see it on the map. If someone would like to develop inside somebody’s easement you can go to court and get declaratory relief, but instead, this is placing the burden on all of the easement holders which is the reverse way around. Councilmember Cervantes said alternatively it is the property owner who purchased the site.
Councilmember McCormick said he was looking through the history of this. There is the original plan and then it is changed with permits expiring, but there was approval in2020, 2022, and 2023 for substantially the same house but perhaps with some changes. He asked if those decisions were appealed back then.
Councilmember McCormick asked even though the house is within substantially the same location and substantially the same. Ms. Corbitt stated her understanding is that they were not appealed.
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Councilmember McCormick said if those permits had not expired there would be a house on that property right now, and Ms. Corbitt said yes, quite possibly.
BREAK
Mayor Candell called for a break at 10:01 p.m. and thereafter, reconvened the regular meeting.
JEFF SWARTS, Appellant, referred to added windows and said they need a ladder to really see, but windows looks inside and he asked to show his first slide which looks at it from Google Earth. The Council can see the steep hillside going down to his home and where the dead trees are and this is where the home sits. When he is standing at the corner of his house and looks up at the house, it is 22 feet away and it goes abruptly very steep up the hill looking down on him. It is hard to tell from that hillside in the photo to show how steep the hillside is, so he is concerned about their privacy.
There are only two living and existing trees on the east side the way that Ms. Pedneault’s drainage system is put in that will be destroyed. These are 2 ½ feet from a French drain system that is going underground to the street. They will lose both those trees. He has been at his home since 1984 and has cleared 2- to 3- wheel barrels of debris that come down the mountain and into her storm drain and catch basin. He then pointed to his red property line, a graphic showing where you look up at the tree into their patio area where they eat, the catch basin comes down, and the street storm drain which is one of the ones he cleans out with debris. It floods across the street, jumps the curb and goes into his neighbor’s yard even though Sierra Vista Way is crowned because there is so much water that comes down there.
Ms. Pedneault is putting a driveway right through the middle of that drain and on up her driveway. They talked to the soils engineer and they want to change that grade so cars do not scrape and they need to put a slight “S” turn in there and go into where Ms. Pedneault’s driveway is because right now if they were do the transition the way it is, the water would come across the street every time into the neighbor’s yard and top the curb. He said his time has run out but there are many problems with this house.
Mayor Candell asked if Mr. Swarts is implying that the storm drain is right where the driveway is. Mr. Swarts said when looking at the plans this is what he sees. It is right in the middle of the driveway and he does not see them relocating it.
Councilmember Cervantes said he walked the site a couple of times but it looked to him that if the water is coming off that hillside which would probably be considerable in a major storm, the only place for it to go is onto the Swarts property. Or, he asked if it goes down onto the street.
Mr. Swarts said it goes into the redwood grove. When redwoods are dry from drought they start receding and do not die instantly according to his arborist. The whole area would catch the water. It comes down the swale and the whole lot was designed to catch and filter this storm water, so they do not get any flooding the way it is now. It goes into the lot.
Vice Mayor Anduri asked if the storm drain is in the driveway.
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Mr. Luttropp referred to Mr. Wolff who has the plans. He does not believe the inlet is in the middle of the driveway any longer and displayed the plan, noting that as shown, it is not in the driveway. Mayor Candell confirmed the pipe from above is draining into it and the driveway is west of that.
Vice Mayor Anduri said obviously there is a lot of water that comes down here. He said Mr. Luttropp has reviewed the drainage plan and he asked and confirmed it is satisfactory to Mr. Luttropp. Mr. Luttropp elaborated and said one of the thoughts on how to deal with some of the bottoming out on Sessions Road which Mr. Swarts alluded to, if you change the profile on Sierra Vista to take it from a crown to more of a super elevated condition, the water could potentially come down Sessions Road and go across Sierra Vista.
When that drain gets overwhelmed, the water shoots across the street and causes a problem. If you start changing the profile of Sierra Vista, that is something that will need to be looked at as part of changing the profile to make sure water coming down Sessions Road, which is probably where the majority of the water is going into that inlet is coming from. It will need to be addressed one way or the other. They already have one drainage inlet on the west side of Sessions and they may need to put another inlet on the east side of Sessions to help catch that water. So, this is the devil in the details that would need to be worked out if the grades in the street are modified. If the grades in the street are not modified at all, the problem you have now is the problem they will have after the house is built. It is possible it might be a little less because now the drainage has been formalized through the lot with a storm drain pipe, but he still thinks most of the water is coming off of Sessions and the water problem will look the same as it looks now.
Councilmember McCormick said it sounds as if there is an issue with the road configuration at the corner with the elevation change and water management. He asked if construction of the house would change when the City would do something there or would staff be more inclined to do something if the house is or is not there.
Mr. Luttropp said the construction of the house would not change the City’s approach to this. This is a problem for Sessions Road. If the City were ever to reconstruct Sierra Vista Way, they would likely look at changing the profile of Sierra Vista to improve access to Sessions Road. He does not believe the City is looking at reconstructing Sierra Vista Way anytime soon, but the applicant and/or the residents on Sessions Road could look at doing this as a project on their own. Typically, when you have a private road issue all of the owners on the private road can make improvements by banning together and fund that. As far as the City is concerned, the public road is fine. It is the private road that has issues with its connection to Sierra Vista Way.
Mr. Wolff said for the benefit of everybody, he displayed an exhibit on screen which was prepared by Izzat Nashashibi who is the project civil engineer. Understanding that prior public comment and actions, the submission of the encroachment permit to address and improve the existing circumstance of the transition between Sierra Vista and Sessions, this is a solution that would be fully feasible within the existing edge of pavement on Sessions and Sierra Vista. Instead of Sessions coming down to a gutter crowning up to the center of Sierra Vista and then back down, this would start a little ways up Session and then add some asphalt towards the centerline so there would be a gentler area so you would not have to go down in order to go up.
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This leads him to the prior slide wherein public comments expressed concerns about the ability of fire apparatus and emergency personnel to timely respond to any calls up on Sessions and Northridge. Staff contacted the Fire District and Fire Marshal Bachman sent Engine 16 out which is a Type 1 engine and most difficult to get in and out as compared to a Type 3 engine which sits higher and are able to navigate difficult conditions more easily. They had no difficulty going in. They will slow down as they make the turn in and will go as quickly as they can up that very steep slope up to Sessions and Northridge above. Coming down, the Council can see they clear on the left image but then momentarily will scrape the bottom of the toolbox on the way out. So, he said that is a couple of seconds and it is on their way out after a call. So, this will not impact their ability to respond to emergencies. In his communication to the City which is part of the packet, if and when Sessions Road is getting worked on, ideally that crown is reduced, mitigated, or eliminated.
JONATHAN SPIELER ceded 3 minutes to Pamela Swarts
PAMELA SWARTS, appellant, 1139 Sierra Vista Way, thanked the Council for making accommodations with scheduling changes and is glad everybody is here tonight. The last time, there were no as many windows and doors on the east side of the house and there was no balcony. She remembers there was something about not allowing people on the upper deck. Basically, no people are supposed to be out there looking on that side of the house so that part of the plan is a problem. Also, someone mentioned there is an air condenser and shed area right outside of their bedrooms. This corner, even though right now they see an ugly rubber shed and an air conditioner/condenser, this is where their bedrooms are located. They have four bedrooms which are all on that side of the house. It is the most private areas where people live, and to have those be able to be seen from the upper house is outrageous.
She referred to her first Slide to show what has been before with this case. This is what the Planning Commission said in 2008. They said they could not make the findings because the project will not preserve physical features, including drainage swales and it does not, to the extent feasible, minimize loss of privacy to surrounding residents. The next slide showed that they said they cannot make the findings for yard setbacks and, because the variance will constitute a grant of special privilege which is not generally available to other property in the vicinity and in the same land use district. Those determinations are based on the conditions and characteristics of the lot then and that continue to exist today. Why they are going through all these little details, she does not see why the City Council and PC made these decisions and now they are looking at seems to be completely different when it is actually the same.
She then referred to Slide 6 and pointed out that the reason they appealed and the reason why they have not appealed every single time is because the Planning Commissioners on the June 16th meeting did not do their job save one commissioner. In focusing on privacy, Mr. Di Giorgio said in the meeting that while we all have privacy issues and when he moved in he cut down some trees for his neighbors. The appellants were just appalled by this explanation as to how he could make the findings. His personal experience has no bearing on this application. It is insulting and they found it very irresponsible for a commissioner not to look at the details of the specific plan he was being asked to make a decision on.
She then pointed to the next Slide, stating there are some other dismissive comments during that PC meeting. Someone said they did not have anything to say about the privacy and the decision to ignore privacy concerns is the Commissioner’s job which is to preserve privacy. They just did not bother.
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The only commissioner who did a wonderful job was Commissioner Kristina Sturm. She was the only member that used critical thinking and looked at the actual details of the application. She has been on the PC for 10 years. She said, “I understand that the property is a legal lot and the owner is entitled to viable economic use. The way I see it, it has been developed, a road was constructed, and two easements were established. I don’t see the fact that it has been developed with a road down the center as a reason to hold it to a lower standard as we would other developments.” On the driveway, Commissioner Sturm said, “It is a considerable continuous curve so that does impact lines of sight for drivers. If it was a setback that impacted just one adjacent neighbor, that would be one thing but this is an access easement for 23 other properties and it is their sole entry and exit. So, to grant a variance for one property owner that regards an easement that affects 23 other owners doesn’t make sense to me.” Finally, she said, “My second concern is privacy. Having seen so many other projects I’ve been on the Commission for over 10 years. If this weren’t this existing development that Sessions Road’s economic use was on the parcel, I don’t think we would allow this driveway and residents to be situated where it is in regards to privacy.” She noted that Commissioner Greg Mason also voted “no” on the project in the past but he was absent at the June meeting.
Ms. Swarts then referred to the next Slide showing the driveway at 1117 where Commissioner Deming said it is a proposed driveway so much like the one at 1117, and she inserted that picture because it is totally not the same; that 1117 is not so close to a home like the proposed driveway would be here, as this is outside of their bedroom windows. She also wanted to bring up some due process issues and will not go through all of them in the interest of time in terms of how they have been treated by the City over the last 18 years. There has been roadblock after roadblock and trying to get them to let this alone. This is why appealing is difficult. It is expensive and difficult and it is expensive to go to court on something they already know is their right. She asked and hoped the Council will do the right thing.
Vice Mayor Anduri said one of the materials Mrs. Swarts submitted said that the headlights of the cars coming in would go into their windows. He asked if they still feel that after seeing the plans for how the retaining walls are going to be built. Ms. Swarts said she thinks it is very likely they will still do that.
Headlights are not a direct light and it will spread and illuminate that entire area. There is also noise from vehicles.
DIANE SPIELER ceded 3 minutes to Jeff Harmon.
JEFF HARMON, 8 Sessions Road, said he is a 40-year resident and living at 8 Sessions Road for 20 years, said he hoped the Council had a chance to read his many letters and he did not get that feeling from the Planning Commission. They even failed to reference this conflicting proposal he has for fixing the bottom of Sessions Road, but it feels like the Council understands that issue well now and the need for it. What prompted that was the specific Palisades fires and in response to that they wanted to start a Firewise community which they did on Sessions Road. So, fixing that road down there was part of the entire initiative.
He applied for the encroachment permit with Mr. Luttropp and had a nice dialogue and were interacting.
He provided him with some solid feedback and it was a preliminary encroachment permit and plans he had given him and he made note of that. The interesting thing was that the day after they met, he had met with the City Administration and he sent him an email that delineated some of the things he wanted him to do with the plans.
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It also said, “As I have previously indicated, I am not able to issue a permit for this work until the conflicts between your plans and the property owner’s plans are resolved.” He sent the Council a copy of that.
Those are the exact policy statements he has been siting for 20 years. It is a policy statement issued in 2004, involved a nearly identical situation where a private party was seeking to build on a neighbor’s easement, and in that notice it said, “The City of Lafayette cannot issue a permit for development to an applicant who does not have the authority to build on a particular piece of land.” It goes onto to say, “The minimum we would accept would be a written confirmation from the holders of the easement granting you authority to build.” This does not get any clearer than this.
The policy statement is corroborated by law. It is actually in some of the case law Ms. Corbitt had mentioned which sites that “The inability of a county to issue building permits with easements in place.” They also have letters he submitted to the Council from Ned Robinson and Guy Atwood who are prominent Lafayette citizens, former Planning Commissioners who attested that this has always been the policy and it is standard practice throughout California. You have to get authority to build. Just out of curiosity and as another way of confirming, he reached out to 8 other cities including Danville, the applicant’s home base. He asked them specifically would they ever issue a permit that allowed building over a private easement. Without exception, they said none had and they mostly just dismissed the idea entirely like it was a crazy idea. This is just what happened to Mr. Wolff 20 years ago when PC Holt came up to him. He rejected it and so did the City Attorney, but that turned over the years.
He said the findings are very consistent with the 2008 appeal and meeting as well where he thinks the Council was trying to find there is any possibility of circumventing this policy. They had staff go back and check variances over 8 years and they could not find an exception to it. It confirmed everything they knew.
During that meeting, Vice Mayor Anduri said, “In all my years on the Planning Commission and on the City Council I have never encountered a case where a variance request would have the house in the easement.” The City Attorney agreed and went onto say, “It was a highly unusual situation, but this assumes there is an easement over the entirety of the property.” Lastly, putting the house on the lot will block him from being able to split the lot. This is a new issue that has come up with SB 9 and it is very lucrative for him where the lot would be a beautiful lot and the only way for him to get to it is right up the side where all of the bushes are located. This is the only feasible way to access a split lot.
Councilmember Cervantes said he remembers the lot and read it which was also in the PC’s packet also, but there are all sorts of easements on his property such as trail easements, open space easement, PG&E easement, etc. and he wants to make sure we are not talking apples and oranges here. He asked what kind of easement was referenced in the Van Gilder letter and from 2004 and asked if it was the same as we are talking about here.
Mr. Harmon said no, he cannot answer that.
Mr. Wolff noted that he did find the letter that Mr. Harmon had printed a hard copy of and submitted. It is part of the record and on page 33 of 84 in the first set of public comments, dated April 7, 2004 and Mr.
Harmon highlighted the sender which was Planning Intern Karen Van Gilder.
Councilmember Cervantes asked what kind of easement is that and asked if it was similar to what we are talking about here with this applicant’s property. Mr. Wolff said he does not know what kind of easement this refers to and the letter does not use any adjectives to specifically describe it.
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SHYLER ACKLEY, 7 Sessions Road, said he is new to this and knows there is a lot of history. He moved to his house in 2020. He had a lot to say but the Council has heard a lot of it already. He is here tonight because this is not about building a house. It is really about access, property rights, and land use. It is just something about the history, learning, and talking with his neighbors about what is going on here that does not sit right with him. It does not pass the reasonable test. He thinks the big thing for him is moving the house 2 ½ feet away from the road and the road easement and variance. The road is not optional for them. It is their only way in and out and how they walk their kids, how emergency vehicles reach them, how they evacuate in a wildfire. If the home is built, they lose the flexibility to improve the road, to regrade it, widen it, or even maintain it safely over time. From his understanding, that was the intent of the easement in the first place. It is not just a design issue but a long-term safety issue for them.
There has been a lot of talk about the history and the constraints of the lot. The road did not appear recently and has been there for decades. It was a known issue when the lot was purchased and it is a known issue when other applicants have tried to build on the lot. It is the very thing that gives the parcel its value because it is a shared access route. There has been a lot of talk about other plans that have been approved years ago, but those approvals have expired and the City should look at this as a new application, as a new thing entirely with a new owner, new neighbors speaking out, and new legal and safety concerns.
This is what it comes down to for him. He is not here to say someone should or should not build. He just wants the City to recognize their rights, their ability to interact with the easements they hold, and that is it.
DENNIS GOVAN said he has been a resident for 40 years and asked to bring up the site plan that includes grading. As he looks at this home and parcel, this is R10 or R30 zoning in the area which is talking about either a 10,000 square foot lot or a 20,000 square foot lot. When looking at this lot, it is cut in half by the road so they really do not have a full lot there. In fact, they are building on one-third of the lot on the uphill side. In looking at the drainage plans, there is a swale that presently comes straight through the center of where that house is now. What they are doing will be altering those drainage patterns. Some of that is coming off the hill and there is a lot of water that comes off the hill, presently goes through the center of the lot where the house will be placed, and he did not know that a 12” line will take the water from that hill across that property and divert it onto the neighbor’s property or down the road. But, what is happening is that somebody bought a lot that probably should not have bought it. They will use onethird of the property for a house and then they have an easement on there that encumbers the whole site. He just thinks it is a bad idea and it was a bad idea in 2007, in 2008 and has continued to perpetuate this idea. Somebody made a mistake and sold somebody a lot that they should not have and it is not the City’s responsibility to solve that problem, nor is it the resident’s to have to bear the burden of that mistake.
Mayor Candell closed the public comment period, and she called on the appellant to provide rebuttal comments.
Rebuttal – Appellant
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K. Kasey Corbitt, attorney for appellants, said to address some of Councilmember Cervantes’ concerns, there is a process to go through for extinguishing an easement and a development permit is not that process. The burden should not be on the 22 or 23 neighbors who are impacted by these easements to force the City to not allow development in a recorded easement. She would refer the Council back to Cottonwood and thinks it is incredibly similar. There are many parallels and it discusses the issue of the policy of economic use which is what was relied on in prior grants. She knows there were not appeals every single time as Ms. Swarts mentioned. It is an incredibly cumbersome and burdensome process. This has been going on for nearly two decades. It is a lot for the Council, a lot for the neighbors, but the fact is, those are recorded easements and this is not the process for extinguishing it. Allowing building there does effectively extinguish it so that is where the Council comes in. If the Council grants a development permit, you are saying that easement does not exist anymore, and that is not the place of the Council.
She also wanted to address the letter Mr. Harmon had referenced that Mr. Wolff displayed. In the subheader, it specifically states in parentheticals “access easement.” She does not have access to that particular application but if you look back at that in the City’s materials, in the parenthetical it states “access easement” which is the same kind of easement we are talking about here. It is not the Council’s place to extinguish that. While that might be a harsh and unfortunate circumstance for the applicant which everybody recognizes, the fact is as was already said, this lot should not have been sold the way it was and it is not the City Council’s job to rectify that situation for the applicant. Instead, the Council should deny the permit and have the applicant seek her proper remedy.
Councilmember Cervantes said not to quibble about a letter written two decades ago, but there are two components to the letter. The first part refers to the cabana and the second part refers to a garage addition which would be a variance to reduce the required 10-foot setback from the access easement line to 1 foot, which is in the subject header of the letter. There are several things going on here and no one knows exactly what this was. So, the question he had for other parties was, is it an apples to apples we are talking here or apples and oranges? He has no idea. He is a bit leery about hanging their hat on this letter written 20 some years ago.
Ms. Corbitt said she completely respects that and she does not think you need to hang your hat on that because the case law specifically says that you should not be building in these and that there is a proper process. Councilmember Cervantes said which, in his view, would be good fader for a court of law with the ability to discern the case law and the facts. Ms. Corbitt said she agrees and thinks they might have a disagreement about whose burden that is because the City should not be approving development in a recorded easement that appears on a subdivision map and in deeds.
Rebuttal - Applicant
David Bowie, attorney for applicant, said one comment important to make is to simply acknowledge the difficult situation in which this Council finds itself. The Council is constantly being asked to balance the interests of competing homeowners and determine the rights and privileges of various neighbors in a whole series of matters in making a decision. This is not easy.
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What the Council has to rely on is some of the subsidiary admissions that hear matters and make recommendations to the Council and staff. In this instance, he would urge the Council to be very cautious about disregarding the staff report which is exceptionally thorough and carefully addressed all issues of this application. Also, he asked to give credence to the prior Commissions which of late over the last few years viewed an application that is essentially the same as the one the Council is looking at this evening that was approved without question. They made those determinations. Unless clearly in some fashion wrong or incorrect, it would be bad policy for the Council to simply ignore those decisions and then go ahead and make its own determination. The next question is a fairly simple one which is, what is the role of the City Council in hearing an application like this. He would submit that the role of the City Council is to apply the City’s procedures that exist through the facts of the application before it and decide that the matter is a matter of the City’s own regulations.
He thinks the Council is being asked to sit as a court of equity and make determinations regarding quiet title, injunctive relief, declaratory relief, whether or not rights were impinged and everything of that sort.
That is not the Council’s role and the City Attorney in the past on this application has quite properly said, that is not the Council’s role. What the Council is supposed to do is decide matters which are within the City’s jurisdiction. If someone wants to go to court, it is up to someone to go to court and adjudicate those rights. He would point out that the Council has misstated the situation numerous times. Whatever the Council does is not going to eradicate or extinguish the rights such as they are which the various parties and neighbors might or might not have. Those rights are not going to be impacted by what the Council does here. If they have rights that are impacted, they have a right and duty to go to court and have those rights clarified and adjudicated. But, it is not up to the Council to make that kind of determination. The Council simply acts on matters that are within its jurisdiction.
He would also point out that this is a lawful lot which means his client is entitled to develop that lot. They need a variance because there were concerns over privacy to the adjoining property and they were asked to push that entire house farther to the west. So, the primary reason for the variance happens to be to accommodate privacy concerns of the adjoining neighbors who now object to the variance. The issue of privacy with the neighbor is important and they recognize that but Mr. Wolff’s photographs, the staff report, and the comments of the architect make it rather clear that the views into the neighbors are really, at best filtered, can be fully screened by conditions for landscaping and, in any case, there is a huge difference in elevation between the two properties and they are offsetting against each other. So, as a result, the comments made repeatedly by both staff and the architect that they are primarily looking at a rooftop happen to be accurate.
He would also mention that the neighbors themselves do not observe the setback requirements imposed by the zoning district. To the extent their concerns about privacy, their own situation rises from the manner in which their own property was actually constructed and developed. But, to go back to the legal issue, his client has a legal lot entitlement to develop. If the Council were to deprive her of any ability to develop that lot, she has a clear entitlement to just compensation. If the Council approves this project, they do not extinguish any rights with the neighbors. They have rights to go ahead and litigate them, and he would say he has litigated numerous cases involving the interpretation of easements. They are complicated factual issues and they are not at all as clear cut as Mr. Swarts suggest. All cases are extinguishable but this is not a court of law so he will not make an attempt to do so. He apologized for not being able to be here in person, apologized and wished the Council good luck in making its decision.
Mayor Candell called for questions and/or Council deliberation.
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Vice Mayor Anduri asked the City Attorney to comment on what she has heard tonight and provide any advice to the Council as they consider this.
City Attorney Mala Subramanian said she has been involved in the project from the beginning and has been very consistent in saying that the City and City Council should not get involved in the private property issue related to the easement. The decision about the easement and how it impacts the property is really a decision that, as heard previously by both attorneys, should be determined by a court of law. Both parties she previously has said have had the opportunity to do so.
This has gone on since 2007 in various iterations. The property owner could have brought a quiet title action to clarify the easement. Likewise, the appellants and all easement holders could have also brought an action in court to prevent or enjoin the City from proceeding with making decisions on this application both in the past which has been previously approved or now. None of that has happened and she has always reiterated it is not the Council’s or Planning Commission’s place to make any determinations on the easement. It is a matter that should be before the court. She does not think if the Council were to make any approvals of a permit, that would not extinguish the easement. The easement exists and if a court hears this matter eventually, the court will make the determination on the easement and not the Council. Any permit that would be granted would not extinguish an easement which is not the Council’s jurisdiction for consideration.
The Council is being asked to make decisions based on the easement and so in effect becoming the court and that is not before the Council and should not be considered. She therefore encouraged the Council not to consider the easement and discussions on whether the easement encumbers the entire property or not.
Vice Mayor Anduri asked how would staff distinguish 2004. Ms. Subramanian said as similarly mentioned by Councilmember Cervantes, she did not know the details of that application and cannot opine as if it was a similar situation or not. She can say the City has been consistent in this application in saying the Council, staff, and the PC should not consider the easement and the parties could privately litigate that matter. The City would follow whatever the court said if the court enjoined them.
Vice Mayor Anduri said therefore, there is not an established City policy. Basically, the policy based on what the City Attorney is recommending to the Council, is that the Council does not make decisions about the easements, and Ms. Subramanian confirmed.
Vice Mayor Anduri asked when the stairs on the east side of the project enter the picture, noting there is also a staircase on the west. This was not in the 2008 plan. Mayor Candell said she believes this was from 2022. Mr. Wolff said he would have to go back through the sets of approved plans to ascertain when they were added, but they are certainly part of the current proposal.
Mayor Candell said if for privacy reasons, what are the limits in the items the Council can ask for in their COAs. She asked if they could request removal of the staircase on the east side or she asked if that is a full design change. Mr. Wolff stated to what degree the staircase impacts the privacy he did not know staff sees a material difference. He thinks the contention is around the glazing and windows. In evaluating the site, staff has taken that vantage point into consideration. They will see the roof which is the extent of the privacy impact as far as staff can discern.
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Vice Mayor Anduri asked if a resident of the new dwelling would not be able to look into the bedroom windows of the neighbor. Mr. Wolff said someone on the Pedneault site could see the side of the house.
Whether or not they can see into the windows and through the windows is a function of whether there are curtains on the windows, but they would definitely be able to see the two windows on the side of the house that were in the illustration that he presented and the Swarts’s presented.
Councilmember McCormick said in talking about the privacy, they should acknowledge the house is moved significantly as they can within the constraints of the lot to help with the privacy angle which is notable. He was a little disappointed that the landscaping did not directly address the privacy issue. There is so much that could be done with the landscaping to help with the privacy and that would seem to be the least expensive thing they could do on the construction side of it where if the council were to consider conditions of approval to mitigate the privacy, he would not necessarily be in favor of a structural change like stair removal or retaining walls, but would be highly interested in specifying trees, foliage, staggered trees, and he thinks something can be done in that area that would help guarantee privacy initially and in the future.
Councilmember Wotherspoon said she agrees that ideally, there would be a tree-oriented privacy screening, but there is a defensible space issue in this location and the proximity to not just the property line, but then also the fact that the appellant’s house is very close to the property line as well. She thinks it is noted in COA #26 about defensible space. Staff acknowledges it might be difficult to both provide adequate screening as well as comply with defensible space requirements.
Councilmember McCormick agreed and said it is only possible that the additional space in the setback there is now between the Swarts house and the applicant’s house which is 12 ½ feet. He thinks conditions should not impact Zone Zero for anything they would specify. Other than trees, he was not sure what other kind of privacy methods there would be.
Councilmember Cervantes said he thinks they could deal with privacy impacts structurally, but the landscaping approach to him seems a better way to mitigate them. He looks at this and it is pretty close to what was approved in 2020 with a few nips and tucks, and he thinks the biggest way to address privacy has been done because this has been moved further up away from the neighbor’s property. This is the big lift in his view in terms of privacy. He thinks they could mitigate with some landscaping closer to the property line.
Mayor Candell suggested the Council develop a COA that would satisfy that and asked whether that would be enforceable, given they know that many of the trees are dying. She asked that conditions mitigate the privacy concerns with a changing landscape from what is being presented to the Council today and she asked if that is possible.
Mr. Wolff suggested the COA indicate, “The property owner shall plant 5, 15-gallon or 24-inch box Coast Redwood Trees 5 feet off of the property line at 10 feet on center and be irrigated for the first two years or in perpetuity. If any tree were to die, it would be replaced in kind.” This is something that could be executed and checked and affirmed. This COA is clear, straight-forward, and achievable, and it should not be left open to interpretation because then they would be inviting an argument between parties.
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City Attorney Subramanian said she and the City Manager were talking about the point Mr. Wolff was making which is COA #24 is in place which is a standard condition for a landscape maintenance agreement which, once the Council decides which trees need to be planted, that maintenance agreement is the hook that gets recorded against the property to require the trees to stay and be maintained, particularly ones related to privacy. Mr. Wolff agreed.
Councilmember Cervantes said the one thing he would be mindful is that trees do fall and if they fall, they will likely fall on the neighbor’s property or either one. He thinks the key thing is the privacy issue so he was not sure trees are the right answer. Oleander was on the list earlier, but there should be something that provides screening but he was not sure what that would be and would like to delegate that to staff.
Councilmember McCormick said this is why he thinks the condition could prescribe the solution and defer this to staff for privacy through some mechanism, given the Council are not landscape architects or arborists. He feels right now as to what they heard today is that he thinks there should not be more of a real privacy plan, however that gets done. To that end, he thinks the window discussion was a little unclear. He thinks the windows were designed for maximum visibility and he wondered whether that is mitigated through structural changes, treatment on the windows, and so he did not think they got to a great ending on this in understanding what that meant from a privacy perspective. Those looked like large windows which is great in getting light inside the house, but he was not sure something could be addressed for this.
Mayor Candell said this is where Vice Mayor Anduri was going on the structural side—whether they try to beef up the landscape screening or do they attach it to the design. For other projects they have raised the windows or eliminate certain windows from the design. As much as they want the screening, she asked whether the Council will be forced to do something about privacy because of the windows. She thinks she sees the stairway as the biggest privacy issue because as soon as you walk out the door, they would look straight over at the home.
Councilmember Wotherspoon said in one of the descriptions she heard the view out of the kitchen door windows that are at the top of the staircase are into the hillside. It is back further upslope from the appellant’s property. Mr. Wolff confirmed and said staff’s assessment is that if you are standing interior to the building looking out through the glass door, seeing the landing, the retaining wall, they would be facing an upslope going away from them, and the topography continuing up towards the homes up on Sessions, so it would be rising. If you look obliquely on an angle you would be able to see what lies well beyond the Swarts property such as sky, trees, houses further away, and looking down, they would see the Swarts’s roof from the triangle above the garage.
Councilmember Wotherspoon asked if the pair of windows on the eastern side is a new feature, as the 2021 and 2023 design was just a wall, and Mr. Wolff confirmed. He said treatments that the DRC and PC and Council have used previously used to address privacy concerns which are generally direct line of sight when at the same elevation and not offset laterally. This is offset laterally and vertically, but nonetheless, you could have a high sill so light can still enter but they would not have a vantage point to look down onto the neighboring property. Or, they could treat those as bathroom windows which are modeled or frosted glass so light can enter but they cannot see through. Or, they could be removed outright.
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Mayor Candell said she thinks she heard from the applicant that those were added as well as the door because the triangular area is cut off from everything else. Right now, the front has a railing but there is no railing on the one side, so a door might be illegal there. It is not even showing a deck right now on the side. It is just a drop-off. She asked if that is true as there is not even a railing there from the rendering, and this is on page 9 of the staff report. The comment was made they needed that door there to be able to clean up that little area.
Councilmember Wotherspoon asked if they could hear from the architect or applicant to understand what this feature is.
Ms. Nguyen stated the original design is like a parapet so it will be 38” to meet the code, but it is really just a place that the previous design for outdoor things. They need an access to get out and clean the patio.
Mayor Candell asked if the drawing reflects this. She pointed to it and said it looks like it drops to the edge and then drops onto the stairway below. Ms. Nguyen said she thinks it is missing a rail and apologized.
Councilmember McCormick asked if that was the door during the testimony which they would be open to making a solid door versus a glass door. Ms. Nguyen confirmed. Councilmember McCormick said this is the wall or view that is most egregiously pointing at the neighbors. Ms. Nguyen said this is the only reason they need access. When the homeowner bought the plan, she wanted to square out that place. She wants to bring the building out completely so the piece of triangle is hanging out there, but they could not do that because they have to go with the approved plans. So, the only thing they wanted to add is some access to get out to that place for maintenance. But, they can put a solid door to protect privacy.
Councilmember McCormick asked about the window next to the door. Ms. Nguyen agreed they could remove them if this is what it takes to provide privacy to the homeowner and neighbor.
Ms. Pedneault said she had no desire to have windows there and did not request them. She didn’t know because she had not looked at a 3D rendering on that side. She does not need any windows or access there. She just thought it was a strange design and she didn’t know why there was a place where debris could collect where you cannot clean off. So, if it was just squared off without any windows or doors that would be fine. From the inside of the home, this is the only real living space with windows angled west and south, and a kitchen with light coming in from the east, and inside she would be placing something there such as a TV.
Mayor Candell said if the applicant makes the door a solid door or frosted or opaque glass and then remove the window, she asked if this could be made a COA. Mr. Wolff said yes, and as he understands the proposal it would be to eliminate the windows and door and square off the wall such that instead of diving from the outside edge to the centerline of the house, it would continue up to the corner, turn, and come back to the point.
Vice Mayor Anduri said what is being said is that they are okay to square off the east side of that room so it will not be symmetrical from a front view. They are changing the way the house will look from the front, and he asked if the applicant is okay with that. Ms. Pedneault said yes, she is.
Mayor Candell said this is one way to solve the privacy concern.
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Vice Mayor Anduri said he agrees with what the City Attorney is saying about the easement. He is concerned about upsetting existing precedence, but the public is entitled to a certain ability to rely on what the past Councils have done and there has been action on this house. In 2008, the Council took a different action. More recent Councils have taken different actions, but to the extent this resembles what was before those Councils, even though it is de novo, he thinks they have to give some guidance. What he is getting to is that the privacy does concern him. In 2008, there were no window views over the neighbor and he does not think the house has been moved that much to make much of a difference. It was likely moved enough to add some screening. He is willing to work this out but thinks it will be difficult to find a solution with the glazing in combination with the landscaping and then the other factor which is this home will never be part of a Firewise neighborhood.
Mayor Candell asked Vice Mayor Anduri if he thinks if they square that off with no windows in the front or to the side, this alleviates that privacy issue. Vice Mayor Anduri said no, not the entire privacy issue but it is a step in the right direction. The other difficulty he has with this is that none of them can know what the views are going to be from these windows. He referred to the east side and what appears to be a wall. He asked if this is a retaining wall such that the hill comes up to the top of that wall. Mr. Wolff nodded. He said you climb up the stairs, come to the door on the left and there is some sort of barrier.
He asked what is over that barrier. He asked if it is an open space that goes down a bit.
Mr. Wolff explained it is a light well and he displayed the plan. The well is accessed from the storage unit so the hillside would be up to the top of that wall and it goes up to the north, but the house is to the south. He then zoomed into the plans and presented the hill shaded so the Council can see the shadow.
He pointed to the Swarts house, down low here is cut into the hill. At the rear of the Swarts house it goes up very steeply and what remains is a ridge or spine that snakes its way up. The Pedneault house is situated not next to Swarts and it is pushed well back. It starts behind the back of the Swarts house. At this point, the grade has climbed significantly from the Swarts’s finished floor and is sloping up to the east where the redwood trees are. So, when you are the kitchen door, they are looking out at existing walnut trees and the upslope which is currently in shadow in the Google Earth image.
Mayor Candell asked however if the view is impeded to go down to the Swarts house by that hillside. Mr.
Wolff said it is. You would be impeded by it to see the outdoor living area on the northeast but whether they could obliquely look down into the side yard with the AC condenser, yes. So, someone could exit that door, stand on the landing or look through the door obliquely, see the side down below of the Swarts house and the windows are there. So, it is very oblique and with a significant grade differential so they would not be seeing into the room itself but just a corner of the floor were someone to shine a laser pointer there.
Vice Mayor Anduri asked for the distance between the northwest corner of the Swarts house now and the southeast corner of the proposed house. Mr. Wolff pulled up Google Earth and said it is about 25 feet. He invited the project architect to also comment on the distance if different.
Councilmember McCormick asked if this was to the corner of the stairway or to the corner of the building.
Mr. Wolff said it is to the corner of the building and he then measured it and said it is easily 25 feet.
EXTEND MEETING
ACTION: It was M/S/C (Anduri/McCormick) to extend the meeting at 11:00 p.m. to 12 midnight. Roll Call Vote: 5-0 (Ayes: Candell, Anduri, Cervantes, McCormick and Wotherspoon; Noes: None).
City Council Meeting Page 33 of 38 September 22, 2025
Councilmember Cervantes said he would take the view that by moving the house up the slope and just by its placement it is mitigated a substantial part of the privacy concerns he would have and by putting in a solid door or squaring off that corner, it is the one part where theoretically one could look down to the neighbor’s property and down below. He thinks this is the heavy lift—the movement of the house up the hillside and squaring off the corner and putting in a solid door or either one. If you are coming down the stairs and look off to your left shoulder, you theoretically could be looking down at the neighbor as opposed to looking down at the stairs, but he thinks the perfect is the enemy of the good sometimes and he thinks this is good. The only way you get perfection would be to eliminate the whole thing but that is not the issue here. So, to him, it is good enough.
Councilmember McCormick said he would support that point. He thinks moving the house sideways and back as far as it can, he thinks that is right. If you are going to have a house there, it is getting close to as good as your are going to get. He would therefore concur with that assessment.
Councilmember Wotherspoon concurred, as well. Making a modification to the eastern part of the triangle to make the door frosted perhaps so light can still pass through would be her thought.
Councilmember McCormick said he was hesitant in designing the house from the Council and he would rather give general direction and let the architect and staff work out the best solutions. Councilmember Wotherspoon said she is open to having light transmitting through or the corner gone and nothing through because they would not need it. Mayor Candell agreed.
Mr. Wolff clarified that he is hearing no clear openings from this point around to the point of the triangle.
Essentially any solution which achieves that goal of no transparent glazing from this point to the corner to the apex of the triangle and this can be executed.
Vice Mayor Anduri said the other part of that is the landscaping. If what the Council is going to do tonight is to give direction to staff to work with the applicant to address these issues and then bring something back, he asked if this is possible.
City Manager Srivatsa said yes, it is possible but based on the direction given staff so far about squaring off and no openings, she thinks this can be achieved if the Council acts on the application and giving staff that information along with the landscaping.
Vice Mayor Anduri said what he was going to say on the landscaping is that this refers to a broad canopy tree, and he asked what would be proposed. What he would suggest is that the Council ask for redwoods along the property line. That will provide the quickest and best screen.
Councilmember Cervantes said he did not think that is a good idea. Most of the redwoods are dead and the rest are dying. They could try to do irrigation but in his neighborhood where there are tall redwoods, they are browning at the top and it is not the right habitat for them. Again, he is not a landscaping expert, but they love the coast and do not like the interior climate, so something else is better. The diagram had a few trees he thinks are existing. There is an existing redwood by the house which should probably get removed, but a privacy screen would be optimal. Mayor Candell agreed and suggested an Oleander type, but if the Fire District may not like the Oleanders.
City Council Meeting Page 34 of 38 September 22, 2025
Mr. Wolff said there are plant choices out there which can be generally fire resistive, Zone 1 appropriate that are evergreen and that can grow 12 to 15 feet easily. So, if those parameters are laid out, he thinks this is achievable with the plant selection from the City’s arborist.
Vice Mayor Anduri said what staff described is a Toyon which will provide screening but it will take awhile to get to that height.
Councilmember McCormick said he would support the broad parameters voiced by Mr. Wolff and let experts determine the species in a continuous line or staggered to have maximum privacy as determined by the arborist.
Mr. Wolff said this direction would be sufficient and this largely is what is on the screen, but staff can ensure with the City’s arborist that there is not a better choice out there. Of those parameters, the fast growing might be the most challenging. But, if their goal is long-term screening with a longer growth period, this would seem a fair compromise to get the right species. There are Toyons on the landscape plans, but the Coffee Berry can be replaced with those, but will defer to the City arborist on that.
Mayor Candell asked and confirmed with Councilmembers they were supportive of the findings in terms of the privacy screening.
Councilmember Cervantes noted there is the question which has to do with the easement and they held discussion, but it is time for agreement on that. As the City Attorney has articulated, it is a matter for the courts and not the Council’s purview. If the neighbors want to sue, they can. There is title insurance and they would likely have to defend the lawsuit, and therefore, he suggested not addressing the easements.
Mayor Candell said she agreed and said because there has been so much time, it is not like the City did not give them the opportunity to do it, and the fact that the applicant did not do it does not reflect on the Council. Ms. Subramanian confirmed and said the Council is not required to enforce the private easement which is what the Council was being asked to do.
Councilmember Cervantes said this issue was raised in 2007 and all their children have been out of school and/or in college.
Mayor Candell agreed and said this was a process that had a lot of opportunity and there still is opportunity even if the Council approves the project. The other piece she wants to touch on is making improvements to the roadway. She thanked staff for getting Chief Bachmann to drive up to the site today to confirm they are not putting people up the road at risk today with a decision like this. Can and should they make the bottom of that road better, the answer is likely “yes.” Trucks get stuck there and that is a hazard.
She would encourage whatever process that can move forward to make that issue of Sessions Road and how it was allowed to be built there at such a grade, knowing the shape of Sierra Vista, they should have anticipated that the trucks were going to bottom out there. She thinks the City should try to pursue something there to help delivery trucks which are beating up the road.
City Council Meeting Page 35 of 38 September 22, 2025
Mr. Luttropp said when Mayor Candell states the City should work towards a solution of that, he asked if the City should fund this, noting Sessions Road was built long after Sierra Vista was built, and in his mind, this is an issue that was created by the developer that installed Sessions Road. This is not a creation by the City.
Councilmember Cervantes said this could open a huge Pandora’s box, and Mayor Candell agreed but asked to encourage Session Road residents to make these fixes. Mr. Luttropp said he would be more than happy to work with the applicant and Sessions Road on developing a plan they can implement to modify the design of Sierra Vista. He would go so far as to say the City can give them a no-fee encroachment permit to do that work if they choose to do that. He just does not think it is appropriate for the City to provide funding.
Councilmember McCormick said when he was looking at the site, drainage was a concern of his. He has had drainage issues at his house and they are on a flat lot. He was encouraged by the report and is relying on that report to say that the drainage is being taken care of in a professional way.
Vice Mayor Anduri said one speaker raised the question of whether a 12” pipe is going to be satisfactory, and he asked if it is. Mr. Luttropp said he can go back and double-check with the engineer on that. He did hydrology on it to make sure that a 12” pipe is appropriate for carrying the water.
Councilmember Wotherspoon said she would like to request a trash rack cleaning COA. She can imagine that filling up with branches and twigs and debris. It is there to capture water and she would not want it to be diverted. Mr. Luttropp asked how would this be implemented. This gets in some of the weeds and some of the issues they have with C3 type improvements. With C3 improvements, staff has a requirement that the property owners provide inspection reports every year saying that their C3 improvements are in adequate condition. Staff has a devil of a time getting them to even do that. So, he is wondering what the mechanism is and how that would play out for the requirement.
Vice Mayor Anduri said Mr. Luttropp earlier said the main beneficiary of cleaning it out is the applicant.
He asked if he was familiar with the rack on McGraw which filled up and the water wiped out swimming pools and other things. If the water comes up, he asked if it will stay on the applicant’s property or he asked if it will flow to the east. Mr. Luttropp said he does not recall the topography exactly. He thinks when getting to the back of the house, you are still very much in an valley. So, if that is overwhelmed, that goes through the applicant’s house before it does anything else. Trash racks can go from fine to not fine in the middle of the night when there is a heavy downpour. So, a COA stating you must keep your trash rack clean leaves no way for the City to get paid for that, given it is staff time.
Councilmember Wotherspoon said she understands and suggested just advisement that it is good to ensure your trash rack is clear of trash.
Councilmember McCormick said he assumes during construction all trucks will be parked on Sessions Road for most of it and he wondered if there would be a choke point or whether it is wide enough so they do not have to worry about that. Mr. Luttropp said he is not sure they would park on Sessions Road, and would expect them to be parked on Sierra Vista because Sessions Road is up hill and awkward to get to the site. Traditionally, if a construction company wants to stage or store any equipment in the public right-of-way, they need an encroachment permit for an extended period of time which will cost money, and they can only park in legal parking spaces. He envisions they are not going to stage and store a lot of equipment here because there just is not room for it.
City Council Meeting Page 36 of 38 September 22, 2025
Mayor Candell referred to page 20 of the staff report and asked if the Council wished to consider the findings in the Resolution 2025-45 and first go through the COA’s.
Conditions:
COI #17 regarding the water tank: Mayor Candell wants to be sure they are getting rid of the water tank and the fence. Mr. Wolff said staff can revise #17 to include both the water tank and the fence.
COI #18 regarding the description of the landscaping. She suggested breaking it out for tree protection and privacy landscaping. #18a for tree protection, and #18b for privacy screening/landscaping. Mr. Wolff said the end of the sentence would start a new condition relative to screening and the design parameters discussed earlier which were the characteristics.
COI #26 regarding defensible space and screening for 1139 Sierra Vista. Vice Mayor Anduri asked if this should be kept or incorporated in the plan being developed. Mayor Candell said they still want to keep it and suggested it be done to comply with privacy goals. The screening part should comply with this, as well. Vice Mayor Anduri recommended combining it, and Councilmembers agreed. Mr. Wolff said staff can move the defensible space aspect of this into the third bullet of the landscape, and recognizing putting in vegetation to screen needs to be done cognizant of the defensible space.
A new COI to state, “Prior to issuance of a grading permit…” Mr. Wolff stated staff can craft the language relative to the southeast corner that there be no clear openings from the existing wall on that corner as described. Staff can also prepare an illustration. Any solution that respects that no clear openings would be satisfactory.
Mayor Candell said by adding these COI’s, the Council can make the findings and she asked and confirmed the resolution would not need to be changed with the COI’s.
Vice Mayor Anduri referred to page 9 and asked to change “Commission” to “Council.” Ms. Subramanian said staff will make this change and any others to make the resolution appropriate.
ACTION: It was M/S/C (Cervantes/Wotherspoon) to adopt Resolution 2025-45, including modified conditions of approval. Roll Call Vote: 5-0 (Ayes: Candell, Anduri, Cervantes, McCormickand Wotherspoon; Noes: None).
15. ITEMS REMOVED FROM CONSENT
A. City Council Minutes
September 8, 2025
Recommendation: Approve.
Councilmember Cervantes requested the following changes to the minutes:
• Page 15 of 18, third paragraph, “Councilmember Cervantes said it is important for the Council to play the long game….” and “he thinks in the long-run it is important for the City to be engaged with….”
City Council Meeting Page 37 of 38 September 22, 2025
• Page 16, second paragraph, Councilmember Cervantes said he had a conversation with one of the proponents of SB 79 once Tier 3 was dropped, as he was curious about the City’s proposed wildfire fire evacuation language. The comment was, in the context of Lafayette, the proponent felt the City made a convincing argument about Lafayette’s particular issues, but there was a reluctance at the legislative leadership level to create a new precedent at this point with statewide implications. With the time available, Legislative leadership just could not get their hands around what that meant and there was uncertainty as to how that would play out. He said in the end, it was simpler to exempt Lafayette.
• The next paragraph: “Councilmember Cervantes said, not knowing all the background behind the bill, it’s uncertain if Lafayette’s proposed language became a wedge that broke off the Tier 3 portion of the bill. He is sure there are many other parties involved in that change, but it was simpler to drop Lafayette out of it.”
• The next paragraph: “Councilmember McCormick said he thinks the Mayor’s point is this is politics and a messy proposition. He is convinced by talking about the long game…” Mayor Candell opened the public comment period, and there were no speakers.
ACTION: It was M/S/C (McCormick/Cervantes) to approve Item A, as modified. Roll Call Vote: 5-0 (Ayes:
Candell, Anduri, Cervantes, McCormick and Wotherspoon; Noes: None).
B. Resolution 2025-48 Establishing the Bylaws for the Measure H Citizens Oversight Committee Recommendation: Adopt Resolution 2025-48.
Cheryl McDonald said the Resolution includes something about the Subcommittee would not be presenting or coming back to speak before the Council.
Ms. Robinson stated this is not correct. The Subcommittee will come to the Council and report their findings, but she was not sure where it was confusing. Under Roles and Responsibilities, 3.A.2; Make an annual report to the City Council after reviewing auditor’s findings regarding the Subcommittee’s determination as to whether….”
Mayor Candell confirmed that the Subcommittee will make a presentation before the City Council, just like every other committee and commission which reports to the Council.
ACTION: It was M/S/C (McCormick/Anduri) to approve Item B. Roll Call Vote: 5-0 (Ayes: Candell, Anduri, Cervantes, McCormick and Wotherspoon; Noes: None).
16. COUNCIL / COMMISSION REPORTS
A. Councilmembers report on activities and consideration of matters a Councilmember wishes to initiate for placement on a future agenda.
Councilmember Cervantes reported having coffee with Rachel Zenner, Senator Grayson’s aide and thanking the Senator for his work on SB 79. Senator Grayson will be continuing the effort on the fire safety on the wildfire safety front with a series of sessions and pulling together stakeholders in this area.
There may be grounds to work with him on fire issues.
City Council Meeting Page 38 of 38 September 22, 2025
Councilmember McCormick reported on the Art and Wine Festival last weekend and the City booth was phenomenal. He was impressed what Chamber of Commerce staff did behind the scenes, which he described. Councilmembers agreed and commented on the diversity of attendance from all over California.
17. WRITTEN COMMUNICATIONS – None.
18. ADJOURNMENT – 11:35 p.m.
APPROVED:
__________________________________
Susan Candell, Mayor
ATTEST:
_________________________
Joanne Robbins, City Clerk