Bay Area City Approves Apartment Project That Sparked Housing War

The hamlet of Lafayette, California, nestled in the Berkeley Hills east of Oakland. (By Stacey Baca – Own work, CC BY-SA 3.0)

(CN) — After nearly a decade of legal and political hurdles, one of the most fought-over housing projects in the San Francisco Bay Area won approval at the end of a nearly eight-hour meeting early Tuesday morning.

The Lafayette City Council spent nearly eight hours hearing from lawyers, city planners, transportation experts, public safety officials and impassioned residents about the fate of a proposed 315-unit apartment complex that has divided community members for the last nine years.

Lafayette is a town of 26,000 located east of Oakland, lying at the foot of the Berkeley Hills and spreading out through the valley below. Some residents say Lafayette should retain the more rural and semi-rural setting that distinguishes it from the densely urban environments of its neighbors to the west.

For others, the proposed 315-unit apartment complex to be built on a 22-acre plot near a Bay Area Rapid Transit station is a perfect example of the type of project that should be constructed to increase desperately needed housing stock in the region.

The Terraces project was first proposed by developer O’Brien Homes of Menlo Park in 2011. After a lengthy and rigorous review process, the city approved the proposal only after the developer agreed to build 44 single-family homes instead of an apartment complex. But the single-family homes proposal was scrapped after lawsuits and countersuits were filed over the project starting in 2015.

The plan for a 315-unit apartment complex was revived in 2018 and approved by the city’s planning commission in January this year.

After a marathon nine-hour meeting Aug. 10, the City Council delayed voting on the project. During that meeting, an attorney for the developer O’Brien Homes warned city officials that Lafayette could be liable for more than $15 million in fines and legal costs if it denied the project and lost in court.

In 2017, then-Governor Jerry Brown signed amendments to the Housing Accountability Act to enhance enforcement, in part by awarding attorney fees to petitioners under the act and empowering judges to fine noncompliant cities.

Last year, Governor Gavin Newsom signed into law the Housing Crisis Act of 2019, which also makes local governments liable for fines if they refuse to approve housing projects without adequate justification based on a preponderance of evidence.

On Monday, Lafayette’s outside counsel Rob Hodil of Coblentz, Patch, Duffy & Bass told city officials they could not legally reject the project under a provision of the state’s Housing Affordability Act because the city is out of compliance with regional housing allocation requirements. The city has approved building permits for eight low-income housing units since 2015. It needs to approve 208 low-income housing units by the end of 2023 to be in compliance.

The Terraces project earmarks 20 percent of its 315 apartments as affordable, adding 63 affordable units to the city’s housing stock.

Bryan Wenter, an attorney for developer O’Brien Homes, told council members Monday they could not reject the project without documented evidence of significant public health and safety impacts that are “quantifiable, direct and unavoidable.” No such document exists, he argued.

“The project has been studied to the nth degree on every conceivable issue and no basis to disapprove the project under the governing law has been identified,” Wenter said.

During Monday’s meeting, opponents of the apartment complex voiced concerns about the project’s impact on air quality and emergency evacuations from wildfires.

Richard Drury of the group Safe Lafayette, which opposes the Terraces project, said wildfires raging across the state right now should make it obvious that more study is needed to assess the impact of increasingly severe and frequent wildfires on the housing proposal.

“This area is a high fire hazard zone,” Drury said.

Jeremy Levine of the group Inclusive Lafayette, which supports the project, presented a petition signed by more than 200 Lafayette residents who back the proposal. He said many community members want more affordable housing and sustainable development in the sleepy suburban town.

“People across Lafayette — our children, neighbors, community members of all kinds — support the Terraces,” he said.

In the end, the project was approved in a 4-1 vote. Lafayette Vice Mayor Susan Candell voted against it, arguing a provision in the Housing Crisis Act of 2019 was intended to let city officials reject proposals for large housing projects in high wildfire risk areas. 

“It’s the intent of these laws to carve out exceptions for putting high density housing in very high fire zones, and that’s what we’re doing,” Candell said.

Candell was asked to recuse herself from the vote based on her previous statements against the project, which the developer said indicated bias against the proposal. Candell did recuse herself in 2018 but later changed her mind. 

Lafayette Mayor Mike Anderson said because of strict state laws requiring localities to approve housing projects with limited exceptions, the city had little choice but to greenlight the proposal.

“There’s a lot in front of us that takes away our ability to do much with this project as it stands now,” Anderson said.

Anderson said the city will work with public safety officials to improve wildfire safety for the community and allay concerns about the project’s impact on fire risk and emergency evacuations.

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