Development left up to Lafayette voters

A hillside housing development proposal for Lafayette must be submitted to the voters for approval, a state appeals court has ruled, reversing a judge’s ruling that had barred a referendum in the East Bay suburb.

The development would include 44 single-family homes, parks and a bike path on 22 acres along Deer Hill Road, which runs above Highway 24 near the Lafayette BART station.

The City Council approved the plan in 2015 but ran into opposition on two sides — from the San Francisco Bay Area Renters’ Federation, which favored an earlier plan to build 315 moderate-income apartment units on the site, and from local residents calling themselves Save Lafayette, who said the city and streets near the proposed development were already too congested.

Lafayette resolved a lawsuit by the renters group without changing its plan, but Save Lafayette collected nearly 2,000 signatures to qualify a referendum for the local ballot on the council’s decision.

The city refused to place the issue on the ballot, however, and won an early ruling from Contra Costa County Superior Court Judge George Spanos. Spanos noted that the City Council, before rezoning the 22-acre parcel, had changed Lafayette’s general plan so that it allowed residential housing in that area. He said a measure submitted to voters had to be consistent with the general plan, which governs overall development in the city.

The First District Court of Appeal in San Francisco disagreed Wednesday and said the referendum could go on the ballot.

“The referendum here would preserve the status quo,” the zoning and development of the land before the City Council acted, Presiding Justice Ignazio Ruvolo said in the 3-0 ruling. “The city should have either suspended the ordinance (approving the development) or submitted the issue to the voters.”

Lafayette could appeal the ruling to the state Supreme Court. But City Manager Steven Falk said Thursday that the city attorney was not recommending an appeal because it could delay resolution of the case, and the development, for several years. He said the City Council will consider Monday whether to appeal or put the issue on the June ballot.

Gary Garfinkle, a lawyer for Save Lafayette, said the ruling “vindicates the people’s right to be heard.” He said the proposed development would worsen traffic in “probably the most congested intersections in the city.”

If voters reject the development in June, Garfinkle said, the city could legally propose a similar plan a year later, but would probably encounter another referendum.