Lafayette – 3233 Deer Hill Road

In 2011, 315 apartments were proposed at 3233 Deer Hill Road.

Given the public’s dissatisfaction with the application… Given that the Circulation Commission and Design Review Commission have both indicated that they cannot support the project and have requested a significantly scaled-down alternative… Given that the Developer has indicated that, if the project is denied, it will file a lawsuit against the City… And given the risks to the City presented by that potential lawsuit, and particularly those associated with California’s Housing Accountability Act, which limits the ability of cities to deny an affordable housing development proposals unless that proposal is inconsistent with both the General Plan land use designation and zoning ordinance that existed at the time the application was deemed complete… About four weeks ago the City Council directed staff to participate in conversations with the developer to determine if there was an alternative plan that would be acceptable to all parties — the developer, community members, and the city. Before you tonight is an introduction of such an alternative:

September 12th, 2015

The City of Lafayette approved 44 Single Family Homes, costing at least $1.2 million each.

Section 65589.5(j) of the Housing Accountability Act states that when a proposed housing development complies with the applicable, objective general plan and zoning standards, but a local agency proposes to approve it only if the density is reduced, the agency must base its decision on written findings supported by substantial evidence that: 1. The development would have a specific adverse impact on public health or safety unless disapproved, or approved at a lower density; and 2. There is no feasible method to satisfactorily mitigate or avoid the specific adverse impact, other than the disapproval, or approval at a lower density. These two conditions were not met. Therefore, the City of Lafayette violated the Housing Accountability Act.

How it ended

The development proposed in Lafayette was a truly rare proposal: a dense, multifamily development proposed right next to a transit station in an affluent, low density suburb. It may be unsurprising that the city did nearly everything to try and stop it.

First, the city rejected the design of the zoning compliant, 315-unit project and recommended instead a project of 44 single family homes. Despite enacting zoning regulations allowing for high density, the city was attempting to impose single family zoning on the property through their discretionary design review process. CaRLA sued to force the city to follow its own zoning and approve the higher density option. Unfortunately, during litigation the developer looked for easy resolution and agreed with the city to move forward with the smaller development. While CaRLA contested this approach, the judge ruled our case could not move forward if the developer sought to move forward with a lower density option.

Fortunately, as a result of a botched attempt at a rezoning referandum, and through sustained advocacy and organizing from local groups like Inclusive Lafayette, the larger project was revived, brought back to Council, and finally approved in 2020.

Timeline

January 1, 1946: Property purchased by Tony Lagiss. Because the property is at the intersection of 2 large roads, it was zoned for (relatively) high density: 35 units/ acre. source
January 1, 1950: County makes an attempt to downzone the property, Mr. Lagiss objects and prevails stating he has a “reasonable investment backed expectation” of being able to build 35 units/ acre there.
January 1, 1968: Lafayette incorporates “for the preservation and enhancement of the semi-rural character of the community.” source
January 1, 2002: City of Lafayette studies downzoning the property.
January 1, 2006: Tony Lagiss dies, his daughter Ann Maria inherits the property.
January 1, 2010: City of Lafayette City Council votes in favor of downzoning to 5 units/ acre, but the downzoning was not finalized.
January 1, 2011: Ann Maria Lagiss (AMD Family Trust) and O’Brian Land Company submit an application to build 315 apartments ranging in size from 1 bedroom to 3 bedrooms, costing an average of $2000/ mo. (This project is 15 units/ acre).
January 1, 2013: City of Lafayette rejects the 315 unit proposal at design review (and a 280 unit alternative) and proposes O’Brian build 44 single family homes.
January 1, 2015: City of Lafayette is in the midst of trying to build a mere 44 homes, where 315 could have been, at 3233 Deer Hill Road… but not if we have anything to say about it!
November 9, 2015: Sonja Trauss submitted : Letter to Lafayette City Council opposing the approval of 44 single family homes
January 8, 2016: O'Brien Land Co. submitted : Memo of Points & Authorities in support of Demurrer by Real Parties in Interest, to Petitioner’s Petition
July 7, 2016: SFBARF submitted : Petitioners’ Opposition to Demurrer to Second Amended Petition
July 13, 2016: City of Lafayette submitted : Reply in Support of Demurrer by Real Parties in Interest
July 20, 2016: Judge Craddik submitted : Real Parties in Interest demurrer is overruled
November 23, 2016: SFBARF submitted : Petitioners’ Memo of Points & Authorities in Support of Petition
November 30, 2016: Carol Galante submitted : Brief of Amicus Curiae Carol J Galante in Support of Petition
November 30, 2016: Denise Pinkston submitted : Brief of Amici Curiae Denise Pinkston, TMG Partners and California Apartment Association in Support of Petition
December 21, 2016: City of Lafayette submitted : Respondent’s Opposition to Petitioners Opening Brief.
December 22, 2016: O'Brien Land Co. submitted : Real Parties in Interest’s Opposition to Petitioners … Petition
January 10, 2017: SFBARF submitted : Petitioners’ Reply Brief in Support of Petition
April 3, 2017: Judge Craddik submitted : Final Ruling
June 6, 2018: Blog post: We started out in Lafayette, and might be back for more soon.
April 30, 2019: Blog post: What's happening in Lafayette?
September 13, 2019: Sonja Trauss submitted : Petition for Writ of Administrative Mandamus

Press

Status: Settled out of court

The smaller density project was allowed to proceed. We agreed not to appeal the trial court’s decision. In response, the people of Lafayette filed a referendum against the approval, which passed, meaning ultimately the larger version will be built.

Documents in this case

Date	Author	Title	Summary
2015-11-08 08:46	Sonja Trauss	Letter to Lafayette City Council opposing the approval of 44 single family homes	This is the beginning of the lawsuit. It’s a letter from the petitioners, in this case Sonja Trauss & the SF Bay Area Renters Federation, to a superior court judge saying that the respondent, in this case the City of Lafayette, has broken state law and asking the judge to undo what the city has done.
2016-12-22 11:57	O'Brien Land Co.	Real Parties in Interest’s Opposition to Petitioners … Petition	As you might have noticed, the Real Parties in Interest are taking the lead in arguing this case. The RPIs are the developers that cut a deal with the city. One of the conditions of the deal they cut was that the developers had to pay for lawyers to defend the City Of Lafayette in case the City got sued. Since the RPIs were going to pay for the city’s defense anyway, they are just using their own lawyers to argue the case.
2016-11-23 11:56	SFBARF	Petitioners’ Memo of Points & Authorities in Support of Petition	This filing prepares the Judge for the oral arguments that will happen at the hearing.
2017-04-03 12:04	Judge Craddik	Final Ruling	We won!
2017-01-10 12:01	SFBARF	Petitioners’ Reply Brief in Support of Petition
2016-12-21 11:59	City of Lafayette	Respondent’s Opposition to Petitioners Opening Brief.	The City is really phoning it in with this brief. They left the heavy lifting to the RPIs.
2016-11-30 12:02	Denise Pinkston	Brief of Amici Curiae Denise Pinkston, TMG Partners and California Apartment Association in Support of Petition	Another letter from more experts.
2016-11-30 12:02	Carol Galante	Brief of Amicus Curiae Carol J Galante in Support of Petition	“Amicus Curiae” means “friend of the court.” This is a letter from an expert on the subject making some of her own arguments to the court about why we, the petitioners, should win.
2016-07-20 11:54	Judge Craddik	Real Parties in Interest demurrer is overruled	“No time for loooserrrss we are the champions…” The judge sided with us, the Petitioners. She said that the RPIs’ arguments depended on different facts than our arguments, so she couldn’t make a decision at this stage. It is necessary for the parties to go to the fact finding phase, aka to trial.
2016-07-13 11:46	City of Lafayette	Reply in Support of Demurrer by Real Parties in Interest	It’s just more “nu-uh.”
2016-07-07 11:45	SFBARF	Petitioners’ Opposition to Demurrer to Second Amended Petition	Here we respond to the RPI’s Demurrer. We say (again) that yes what the Respondents & RPIs did was against state law and also that the RPIs are actually disputing our facts in their Demurrer (this came out more in the oral arguments).
2019-09-13 04:42	Sonja Trauss	Petition for Writ of Administrative Mandamus
2016-01-08 11:43	O'Brien Land Co.	Memo of Points & Authorities in support of Demurrer by Real Parties in Interest, to Petitioner’s Petition	Here the Real Parties in Interest are jumping into the fray. A Demurrer is a filing where the Respondents (or in this case the RPIs) say, even if all of the facts the Petitioner alleged are true, we didn’t break the law because the things the Petitioner alleges we did aren’t against the law.