Lafayette v. City of Lafayette

85 Cal.App.5th 842

301 Cal.Rptr.3d 773

SAVE LAFAYETTE, Plaintiff and Appellant,

v.CITY OF LAFAYETTE, et al., Defendants and Respondents;

O'Brien Land Company, LLC, et al., Real Parties in Interest and Respondents.

A164394

Court of Appeal, First District, Division 3, California.

Filed November 30, 2022

As Modified on Denial of Rehearing December 16, 2022

Certified for Partial Publication.^*

Louzeau Drury, Richard Drury, Rebecca Davis, Victoria Yundt, Oakland; Scott Sommer, Los Angeles, for Plaintiff and Appellant.

Coblentz, Patch, Duffy & Bass, Jonathan R. Bass, Katharine Van Dusen, and Robert B. Hodilfor, San Francisco, Defendants and Respondents.

Miller Starr Regalia, Arthur F. Coon, Bryan W. Wenter, Matthew C. Henderson, Walnut Creek, for Real Party in Interest.

TUCHER, P.J.

O'Brien Land Company, LLC (the applicant or O'Brien) completed an application for a housing development project in 2011, and the City of Lafayette (the City) certified an environmental impact report (EIR) in 2013. Before the project was approved, the applicant and the City agreed to suspend processing of the original project while the applicant pursued an alternative, smaller proposal. In 2018, when it proved impossible to proceed with the alternative project, O'Brien and the City revived the original proposal, with some modifications. The City finally approved the resumed project in 2020, after preparation of an addendum to the original EIR.

A citizen's group calling itself Save Lafayette petitioned for a writ of mandate, claiming that the project conflicts with the City's general plan as it existed when the project was revived in 2018, that the EIR is inadequate as an informational document, and that a supplemental EIR (SEIR) is required. Save Lafayette appeals the trial court's denial of its petition.¹ In the published portion of this opinion, we conclude that, despite the lengthy delay between certification of the EIR and project approval, the City properly applied the general plan standards in effect when the application was deemed complete. In the unpublished portion, we consider and reject all of Save Lafayette's challenges to the EIR. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

O'Brien submitted an application in March 2011 for approval of the Terraces of Lafayette Project (the apartment project or Terraces of Lafayette), a 315-unit residential development. The City notified O'Brien that its application was deemed complete on July 5, 2011.

As proposed, the apartment project included 14 residential buildings, a clubhouse, a leasing office, parking in carports and garages, and internal roadways. Its location was a 22.27-acre site in Lafayette, bounded by Pleasant Hill Road to the east, State Highway 24 to the south, and Deer Hill Road to the north and west.

At the time the application was deemed complete, the project site was designated Administrative/Professional/Multi-Family Residential on the City's general-plan land-use map and was zoned Administrative/Professional Office in the City's municipal code, a zoning that allowed multi-family developments with a land use permit.

An EIR was prepared for the apartment project, and the City certified the EIR on August 12, 2013. However, the City's Design Review Commission recommended that the Planning Commission deny the application for a land use permit.

The applicant and City staff then began to consider a lower-density alternative to the apartment project, consisting of 44 or 45 single-family detached homes, public parkland, and other amenities (the project alternative). As part of their discussions, the applicant and the City entered into an "Alternative Process Agreement" (the process agreement) on January 22, 2014.

The expressed purpose of the process agreement was to establish a process for considering the project alternative; to "suspend" the apartment project in the meantime; and to "preserve" all of the parties’ "rights and defenses ... with regard to the Apartment Project" until the City made a determination on the project alternative. Specifically, the parties agreed that the City would "suspend the processing of the Apartment Project pending [the] City's processing of the Project Alternative," and that if the City Council did not approve the project alternative, or if an appeal, challenge, or referendum was not resolved in a manner acceptable to the applicant, the applicant could terminate the process agreement and the City's processing of the apartment project application would immediately resume, with the parties situated as they were before the application was suspended. The process agreement recited that, "because the Parties have mutually agreed to toll the processing of the Apartment Project, [the] City has not failed to act to approve or disapprove the Apartment Project under the Permit Streamlining Act, and the Apartment Project shall not be deemed approved under the Permit Streamlining Act."

The City certified an SEIR for, and approved, the project alternative (known as the "Homes at Deer Hill") on August 10, 2015. It also adopted a general plan amendment changing the project site's land use designation from Administrative Professional Office (APO), which allows 35 dwelling units per acre, to Low Density Single Family Residential (SFR-LD), which allows only two units per acre. The City then adopted ordinance No. 641, changing the zoning designation of the site from APO to Single Family Residential (R-20).

Save Lafayette filed a petition for writ of administrative mandamus ( Code Civ. Proc., § 1094.5 ) on September 8, 2015, challenging approval of the Homes at Deer Hill based on alleged violations of the California Environmental Quality Act ( Pub. Res. Code, § 21000 et seq. (CEQA)). In January 2016, the parties entered into a settlement agreement and Save Lafayette dismissed the action with prejudice. Acting under permits, the applicants then demolished the buildings and structures on the project site and removed 48 of the 117 trees on the site.

A referendum petition challenging the City Council's approval of the zoning ordinance and requesting that the ordinance be either repealed or submitted to a vote was soon filed. The City Council declined to take either course, so Save Lafayette filed a petition for writ of mandate. The trial court denied the petition but on February 21, 2018, our colleagues in Division Four of this court reversed, concluding the City could not properly keep the referendum off the ballot. ( Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, 662, 671–672, 229 Cal.Rptr.3d 238.) On June 5, 2018, the zoning ordinance appeared on the ballot and a majority of Lafayette voters rejected it. The next month, the City Council adopted Ordinance No. 668, zoning the site Single-family Residential District-65 (R-65) (i.e., requiring lot sizes more than three times larger than those the voters had rejected).

On June 15, 2018, O'Brien submitted a letter notifying the City that it was terminating the process agreement and withdrawing the project alternative applications, and asking the City to resume processing the apartment project application. As resumed, the project (the resumed project) differed somewhat from the apartment project originally proposed. Pertinent here, the resumed project would preserve 10 fewer trees than the original project (16 rather than 26) and would plant approximately 68 more new trees than the 700 originally planned.

The applicant's consultant, FirstCarbon Solutions, prepared an addendum to the original EIR for the resumed project in 2018. ( 14 Cal. Code Regs., § 15164.) The City hired another consultant, Impact Sciences, to review FirstCarbon's addendum. Impact Sciences concluded there had been no substantial changes in the project or its circumstances requiring major revisions to the certified 2013 EIR, so that an addendum rather than an SEIR was appropriate. However, it concluded further analysis was necessary. Impact Sciences then prepared a new addendum (the addendum), which was released in May 2020 and revised in June 2020.

The City certified the addendum as revised, and approved the renewed project on August 24, 2020. In so doing, it concluded the project qualified as a " ‘housing development project’ ‘for very low, low-, or moderate-income households’ " under the Housing Accountability Act. ( Gov. Code, § 65589.5 (HAA) ; see id. , subds. (d) & (h)(3).) As a result, the City found, the HAA preempted conflicting requirements of the Lafayette Municipal Code, and the project was exempt from certain findings the City normally required in order to obtain the necessary permits.

Save Lafayette filed its petition for writ of mandate on September 23, 2020, alleging that, in violation of CEQA, the 2013 EIR did not adequately analyze a number of environmental impacts—including the presence of special-status species, the risk of wildfire, and the destruction of mature trees—and that an SEIR was necessary. It also alleged the project was inconsistent with applicable general plan and zoning requirements.

The trial court denied the petition. As to Save Lafayette's contentions under CEQA, the court ruled in its favor on two preliminary matters—concluding Save Lafayette was entitled to challenge the 2013 certification of the EIR, and that the dismissal of the 2015 lawsuit did not act as res judicata to bar Save Lafayette from challenging the 2013 EIR. But the court ruled against Save Lafayette on the merits, rejecting all of its challenges to the adequacy of the EIR. The court also found that, despite the delay while the parties pursued the smaller Homes at Deer Hill project, respondents were entitled under the HAA to the benefit of the zoning in place when the application for the apartment project was deemed complete in 2011.

The trial court entered judgment in respondents’ favor on January 4, 2022. This timely appeal ensued.

DISCUSSION

Before considering the CEQA challenge, we turn our attention to the argument that the ...