Frequently Asked Questions
What is the project?
The Terraces of Lafayette is a 315-unit apartment community on approximately 22 acres at the intersection of Deer Hill Road, Pleasant Hill Road, and Highway 24. The new residential community will have one, two, and three-bedroom apartments in two and three-story buildings, with on-site recreational facilities for residents. With easy and close access to transit, freeways, and downtown amenities, the Terraces of Lafayette is an infill development project that will provide luxury apartment living in one of the fastest-growing regions in California.
The new community will feature convenient access to hiking trails, shopping, dining, schools, and everything that makes Lafayette one of the jewels of the East Bay.
The City deemed the application for the apartment project complete in July of 2011.
What happened to the 44-unit Homes at Deer Hill project?
In late 2013, Lafayette city officials approached O’Brien Homes and asked the company to consider an alternative to the apartment community, which resulted in a 44-unit luxury single-family home project with adjoining parks and a sports field instead of the originally-proposed 315 apartments. The City proposed, and later approved, the single-family homes project in 2015 as a compromise and alternative to the 315 apartments, which were contractually placed on hold while the City was processing the homes project.
But after over 60 public meetings, the voters ultimately rejected the single-family alternative through a referendum petition and resulting ballot measure known as “Measure L.” The defeat of Measure L in June of 2018 meant that the single-family alternative could not proceed but also that the developers could once again exercise their contractual right to process the apartment project.
Why didn’t Measure L defeat the apartment project?
The voters’ defeat of Measure L prevented the City’s approved compromise of the single-family homes alternative from taking effect, but it had no bearing on the apartment project. Because the application for the apartments remained valid while the single-family homes alternative was considered, and the apartment application was never invalidated or terminated for any reason or acted on by the City, the defeat of the homes project via the Measure L referendum simply meant that the developer had a contractual right to resume processing the original development plans for the apartments. In short, while Measure L ended the single-family home project alternative, it had no effect on the original and ongoing application for the apartments.
Because the City down-zoned the property in July 2018, why are the apartments still being considered?
The City deemed the application for the 315 apartments complete on July 5, 2011. The zoning in effect at that time (Administrative/Professional Office/Multi-Family Residential or “APO”, allowing for multi-family residential) is the zoning that continues to apply to the apartment project application as a matter of state law. The Housing Accountability Act (HAA) protects the developers’ right to process and obtain approval of the apartments under the APO zoning.
According to a letter by Nancy Skinner to the City dated December 11, 2019, the downzoning of the property in July 2018 “is likely to be in conflict with the provisions of SB 330,” which becomes law January 1, 2020, which “retroactively eliminates downzoning as of January 1, 2018.”
Hasn’t the project expired, or timed out, under the Permit Streamlining Act?
No. The Permit Streamlining Act (PSA) establishes time limits for public agencies’ review and approval of applications for development projects. The PSA is intended to ensure a clear understanding of the requirements applicants must meet and to expedite public agency decisions concerning development projects. The PSA is thus intended to protect project applicants, not public agencies, and the PSA does not contain any provisions that would result in a project being considered to have been “denied,” “expired,” or “timed out” for any reason.
Is the project subject to the California Environmental Quality Act?
Yes. CEQA applies to discretionary approvals such as the use permit required for the apartment project. The City Council certified the project Environmental Impact Report (EIR) in 2013.
What is the Housing Accountability Act?
The Housing Accountability Act (HAA) is a state law enacted in 1982 to “to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters.” The HAA fosters and respects responsible local control by providing that once a local government establishes its planning rules, housing development projects that provide required levels of affordable housing or that are consistent with local land use rules receive the certainty of not being denied or reduced in density unless there are significant health and safety impacts that cannot be mitigated without rendering the development unaffordable to low- and moderate-income households. The HAA is intended to prevent NIMBYism from successfully pressuring local officials to reject or downsize housing projects.
Hasn’t the City built enough new homes?
The city of Lafayette has maintained a remarkably stable population, at around 24,000, over the last 30 years in comparison with the dynamic growth of other cities throughout the East Bay.
According to HCD (California Department of Housing and Community Development), Lafayette has not provided enough affordable housing for its share of the region. For the current housing cycle, the City has approved no very low-income units (of its state-mandated goal of 138) and only one low-income unit (of its goal of 77 units) – per the City’s latest report to the State. The new apartment community will help the City meet its unmet share of the regional housing needs allocation (RHNA).
The Bay Area and California are facing a severe housing crisis that is creating one of the most expensive housing markets in modern history. While many cities are struggling to meet housing goals, rents and housing costs are skyrocketing, which has an adverse effect on local and regional economies. If people can’t afford to work where they live, everyone suffers from a reduced quality of life.
Additionally, as population and economic growth has increased, the environmental impact of the underproduction of housing, longer commutes, and increased commuting times contribute to a huge increase in carbon emissions. Building new homes near transit-friendly communities is essential to reducing the environmental impact and improving air quality. Research shows that failing to build new homes near transit-friendly communities ultimately exacerbates regional traffic and air quality problems.
How does Lafayette’s traffic situation benefit from the addition of this apartment community?
According to census data from the California Employment Development Department, approximately 9,400 people work in Lafayette, of which only about 700 live in Lafayette. As a result, about 8,700 people are commuting in and out of Lafayette (that’s over 17,000 trips in/out), impacting traffic on key local streets. Many people who work in Lafayette commute via Pleasant Hill Road to avoid the freeway congestion. Providing housing in Lafayette would reduce the number of commuters coming to Lafayette via Pleasant Hill Road. In a discussion on the Bay Area’s worst commutes, San Jose Mayor Sam Liccardo stated, “We need to get people living closer to where they work.”
Many people are concerned about the Pleasant Hill Road/Deer Hill Road (PHR/DHR) intersection. Future apartment residents heading westbound or eastbound on SR-24 will exit the community by making a required right on Pleasant Hill Road to quickly get to SR-24; those residents thus would not impact the PHR/DHR intersection. Residents going to work in Lafayette could potentially walk or ride a bike or e-scooter (or make the same right-hand turn onto Pleasant Hill Road). For those who commute on BART, the apartment project will provide a designated shuttle for residents. Given the apartment community’s location south of Deer Hill Road, most residents will not impact the PHR/DHR intersection.
See also link here proposed street enhancements that, if approved by the City, will improve traffic flow on or around Pleasant Hill Road and Deer Hill Road.
Why should the City approve such a controversial project?
As stated elsewhere on this website, there are many benefits to the community and to local residents that will result from this new housing. In addition, this new housing will help the City make progress on its RHNA goals and demonstrates responsible local control over land use in accordance with state legal requirements. This is an ideal site for the City to meet its state-required goals:
Easy access to SR-24 without impacting local streets
Close to public transportation (shuttle, walk, bike, e-scooter to BART)
Walking distance to nearby schools
Less than a mile from the downtown
Is zoned for multi-family residential
Traffic will not go through existing neighborhoods
Will not displace any current housing/residents
Will not displace any existing businesses/office use
Re-uses a former gravel quarry with already-graded, permitted building pads
This new housing would serve many people in the community: Young adults who grew up in Lafayette but are unable to afford a single-family home in the area, older adults who want to downsize from their current houses but still stay in the community, and people who work in Lafayette but do not currently have any housing options open to them. Healthy cities include multiple generations living, working, and investing together in the community.
Additional housing in Lafayette will allow the people who work in Lafayette and who serve the community (such as teachers and school staff, health care workers, city employees, and others) to avoid long commutes and enjoy living in the community in which they work. Schools and local businesses need local housing to remain competitive for top talent.
The Terraces apartment community will help the City’s poor jobs-housing balance, greatly improve traffic flow at a congested intersection, reduce vehicle miles traveled and associated greenhouse gas emissions, and increase student safety by providing sidewalks and a turn-out where pedestrians are currently walking in the street. The extensive pedestrian and bicycle lane improvements will help the City meet its goal of discouraging the use of cars for local travel.
Can the City deny the project?
The project is protected by the Housing Accountability Act (HAA), which is intended to facilitate the approval of new housing and shift the burden of proof to public agencies that deny new housing projects. Under the HAA, the City can only deny the project if it finds, based on a preponderance of the evidence, that the project would have a specific, adverse impact upon the public health or safety and that there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households.
The HAA defines such impact to mean a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions. In addition, the HAA explains that the legislature’s intent is that the conditions that have such impacts arise infrequently.
Can the residents vote on the Terraces of Lafayette?
No. A referendum petition can only challenge legislative project approvals, not non-legislative approvals. The remaining approvals required for the apartment project (CEQA compliance, land use permit, and design review) are not legislative in nature and, therefore, by clear and settled law, cannot be part of a valid referendum.
What will happen if the City denies the project?
The HAA severely curtails the bases upon which a city may validly deny a housing development project. An agency that denies such a project in violation of the HAA is subject to various severe consequences. Among other things, the HAA makes attorney’s fees and costs of suit presumptively available to plaintiffs that prevail in HAA litigation requires a minimum fine of $10,000 per housing unit for agencies that fail to comply with the HAA within 60 days of a trial court finding that a city disapproved a housing development project without making the required findings supported by a preponderance of the evidence, and requires fines to be multiplied by five times if a court concludes a local jurisdiction acted in bad faith when rejecting a housing development project. In addition, if litigation is brought to enforce the HAA, the local agency must prepare and certify the administrative record, at the agency’s expense, within 30 days after the petition is served. The huge administrative record for the project is likely a six-figure expenditure all by itself.
Has the project been vetted by the public?
The public has had the opportunity to provide input on the project at every stage. Nearly 20 public meetings have been held during the last eight years. Additional public input will occur during these final stages of the City’s processing of the project.
Can the EIR be used to deny the project?
No. The HAA establishes the only grounds upon which a housing development may be denied. Since none of those grounds exist, the City will be required to adopt a statement of overriding considerations (explaining the specific economic, legal, social, technological, and other benefits of the project) and approve the project.
Why did the developer submit an addendum to the City instead of preparing a supplemental EIR?
CEQA places clear and substantial limits on a city’s ability to require further environmental review once environmental review has already occurred. In fact, the law presumes the adequacy of such a review. In light of the high standard for requiring additional review and the fact that those circumstances are not applicable here, an Addendum to the EIR was submitted to the City in December 2018. Following the submittal of the Addendum, the City hired a CEQA consultant to conduct a peer review of the document. The City subsequently decided to expand the scope of the environmental update and prepare a second Addendum which is nearing completion.
What does the Addendum show?
As a result of various factual corrections to existing conditions, environmentally-beneficial refinements to the site plan, and improved mitigation measures since the EIR was certified, the first Addendum prepared by FirstCarbon Solutions and submitted to the City in December 2018 does not show any significant and unavoidable environmental effects.
What was the scope of the City’s peer review process?
The City’s peer review is intended to consider three things:
The appropriate CEQA document at this point in time;
Assuming an addendum is appropriate, an opinion on the adequacy of the Addendum; and
Identifying any deficiencies, according to the City’s consultant, in the Addendum the developer submitted and any additional work or analysis that should occur.
What is an EIR addendum?
The purpose of an addendum is to make minor technical changes or additions to a certified EIR where none of the conditions that would trigger a subsequent or supplemental EIR is present. An addendum is thus a brief explanation justifying the decision of the lead agency not to prepare a subsequent or supplemental EIR. In short, after a project has been subjected to environmental review, the courts have explained that “the statutory presumption flips in favor of the developer and against further review.” As long as substantial evidence supports the addendum, further environmental review cannot be required.
How affordable will these apartments be?
When we originally filed the application for the apartments in 2011, we intended to offer them all as moderate-income apartments. We have now decided to build 80% market-rate apartments and 20% affordable. We believe that this mix better responds to the need for rental housing in Lafayette and will better help the City meet its regional housing needs obligations.
Thus, our current plan is for 63 of the apartments (20%) to be designated as affordable for lower-income individuals/households.