Developer Unholsters Possibility Of Legal Action; Pushes Lafayette’s Terraces Project Forward

The threat of a lawsuit, a scary prospect for cities and towns unable to afford any prolonged legal skirmish with monied litigants, is once again being raised in leafy Lamorinda – this time by the developer behind the Terraces of Lafayette project.

An attorney for developer O’Brien Homes of Menlo Park, which has been trying to bring the 315-apartment project to a 22-acre site bound by Deer Hill and Pleasant Hill roads since 2011, hinted darkly of “overwhelming” legal costs for the city should city staff not approve the project.

In a May 14 letter to staff, attorney Bryan Wenter said city officials had to approve the project – challenged in the past for its design and possible impact on local traffic – in order to escape legal action. That not-so-thinly-veiled threat, used in the past by other area developers running into roadblocks from local towns and cities, was acknowledged by Lafayette city staff who said such a challenge could result in an estimated $15 million in legal costs.

At the core of O’Brien Homes’ argument is that the Terraces project is in compliance with the state’s Housing Accountability Act, as well as with a streamlining amendment adopted in 2017 which further limits civic objection to proposed developments containing affordable housing in their plans. Sixty three of the Terrace’s project’s 315 units would be designated as affordable housing, according to the developer.

In their most recent staff report, city officials said the Terraces project would encourage development of “diverse housing types and additional affordable housing” in the city. Referencing the guidelines imposed by the Housing Accountability Act and its amendment SB 35, staff said it would be “fraught with risk for local municipalities to exercise their typical, discretionary land-use authority to deny such projects.”

The project comes before the Lafayette Planning Commission – remotely via the city’s YouTube Channel – Monday night.

Long a source of contention, the project was sharply criticized for its architectural approach when it came before before the city’s Design Review Commission in 2013 and has been a magnet for criticism since.

A citizen’s group, Save Lafayette, sued the city over the project years later – effectively putting it on hold until a state appellate court declared the city should have put proposed zoning changes for the project to public vote.

In the face of that opposition the developer and the city drafted a compromise proposal limiting the project to 44 homes. That proposal went to vote – and was defeated – in June 2018. The developer resubmitted its original plans for a 315-unit complex and, with passage of SB 35, and appears confident prevailing conditions for approval exist and will see the project through.

The remote meeting is set for 7 p.m. Monday.