COUNCILMEMBERS AND CANDIDATES PUSHING FOR HIGH DENSITY HOUSING IN CLAYTON???

In reality this is nothing more than a catchy campaign slogan.  The Olivia project is being used as a litmus test to indicate whether a candidate is for or against high density housing in Clayton.  Nothing could be further from the truth.  Anyone basing their vote solely on candidates’ positions on the Olivia project should understand what the true consequences and likely outcomes are.   

Was environmental review for the Olivia project waived?  No.  The project was deemed to qualify for an exemption, which means that based on the project description, environmental studies that were completed, and applicable thresholds, there was no evidence to suggest that the project would cause a significant impact under CEQA.        

Does a “win” on the pending CEQA lawsuit change or deny the project?  No.  A win for the litigating neighbors/plaintiffs will result in the environmental review to be repackaged into a different format.  Instead of an exemption, a “win” under CEQA might result in a Negative Declaration or an EIR, but nothing will change about the project unless a significant environmental impact is identified.  The only suggestion that the litigating neighbors/plaintiffs made re an impact in their (publicly available) brief is to traffic safety based on one resident’s observation that traffic moves at 50 mph on Marsh Creek Road.  Notwithstanding that a recent traffic survey done by licensed traffic engineers measured the average speed at 29 mph, there is simply no evidence that the Olivia project would cause a significant impact under CEQA.  But for the sake of argument, even if a CEQA impact was identified, it can most likely be mitigated to a less than significant level.  CEQA rarely prevents projects from proceeding. Thus, if neighbors/plaintiffs win, all that will happen is a time delay to allow preparation of a different type of CEQA document, combined with possible mitigation measures.

One local example of a project with a mitigated significant impact is the construction of the library more than 25 yrs ago.  The site contained archeological resources which could have been destroyed during the construction, resulting in a significant impact.  However, in that case the impact was mitigated via several construction measures (including addition of fill and closely monitored, non-machine excavation).  The project did not change and was not prevented from being built, but instead a mitigation measures were applied.  That is how CEQA typically operates, as an information tool, with applicable mitigation measures, when needed.          

What happens in reality when CEQA is used to delay projects?  In the case of Olivia, the developer proposed a project that complies with local and state laws.  Whether any of us like it or not, property owners have certain rights, and under State laws cities do not have unlimited ability to disapprove code complying projects.  The reality is that the more time is spent fighting the project based on claims that simply cause delays, the more likely it is for the developer to change the project to a 100% affordable housing project using SB35.  If such a change is made, there will be no CEQA review and no discretionary approval decision by the Planning Commission or the City Council.  Councilmembers Wan and Diaz, Council candidate Gavidia, and the litigating neighbors are effectively playing roulette, until the developer has had enough.  When that happens, the project could be under construction for 100% affordable housing within a number of months without any say from any of us.  The example from Lafayette is telling of the game that some candidates and councilmembers are willing to play in Clayton.  In Lafayette, the Terraces project started as a 44-unit project that the neighbors rejected.  Several revisions, a lawsuit, and 8 yrs later, the City recently approved a 315-unit project instead, under a threat of being on the hook for $15.6M in fines had it denied the latest proposal.  Delays for the sake delays rarely work for the challengers.  If we elect candidates who refuse to evaluate each proposal on its own merit and simply say no to all high density housing and claim to stand up to the state in everything, we are simply paving the way for more SB35 (100% affordable housing) projects in Clayton.  If that is what Clayton wants, that is what Clayton will get by electing candidates like Frank Gavidia.     

Should Clayton taxpayers pay for a lawsuit to effectuate delays, with increased likelihood of getting a 100% affordable housing project?  No.  If the City had improperly denied the exemption or the project approvals, the City would have to pay its own legal fees, and possibly the prevailing party’s fees, and possibly fines under the Housing Accountability Act.  In the pending lawsuit, since the City upheld the exemption and approved the project, the developer indemnified the City, and the City’s cost in the lawsuit is zero.  Big difference, especially for a city like Clayton that operates on a very slim, approx. $5M annual general fund budget.  Are you willing to place the City in a situation with exposure to litigation based on one councilmember or candidate’s interpretation of CEQA or State laws, on the first such case they are ever reviewing, against the advice of professionals (including City’s planners and consultants and City Attorney)? 

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