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SONJA TRAUSS
c/o SAN FRANCISCO BAY AREA RENTERS FEDERATION
1540 Market Street, Suite 100
San Francisco, CA 94102
(215) 900 1457
sonja.trauss@gmail.com

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SONJA TRAUSS, IN PRO PER

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF CONTRA COSTA

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SONJA TRAUSS,
SAN FRANCISCO BAY AREA RENTERS
FEDERATION, and DOES 1-25,
Petitioners,
vs.
CITY OF LAFAYETTE,
Respondents

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Case No.:
PETITION FOR WRIT OF
ADMINISTRATIVE MANDAMUS
(California Housing Accountability
Act Government Code 65589.5,
65589.6, Code of Civil Procedure
1021.5, 1060, 1085, 1094.5)

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Petitioners SONJA TRAUSS, et al. (Petitioners) hereby allege as follows:

1.When a proposed housing development project complies with

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applicable, objective general plan and zoning standards and criteria

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in effect at the time that the housing development projects

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application is determined to be complete, but the local agency

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proposes to approve the project upon the condition that the

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project be developed at a lower density, The California Housing

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Accountability Act, hereinafter the HAA, California Government

Code Section 65589.5 requires the local agency base its decision
upon written findings supported by substantial evidence on the
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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

record that both of the following conditions exist: (1) the project

would have a specific adverse impact on the public health or safety,

and (2) that there is no feasible method to satisfactorily mitigate

or avoid this adverse impact. Specific adverse impact means that

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the project would have a significant, quantifiable, direct and

unavoidable impact based on objective, identified written public
health or safety standards, policies or conditions that existed on
the date the application was deemed complete, and there is no
feasible way to mitigate that impact. If the City's disapproval or
conditional approval is challenged in court, the burden is on the
City to prove its decision conformed to all the conditions specified
in 65589.5. (Cal. Gov't Code 65589.5(j), 65589.6.)
2.On March 21, 2011 Anna Maria Dettmer, as Trustee of the AMD Family
Trust, and OBrien Land Company Developer (Applicants or
Developer or Parties in Interest) submitted an application to
the City of Lafayette (Respondent or City) for the Terraces of
Lafayette Apartment Project (Project). OBrien Land Company, LLC

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proposed to build 14 apartment buildings consisting of 315

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apartments on a 22-acre parcel owned by the AMD Family Trust, at the

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southwest corner of Deer Hill Road and Pleasant Hill Road.

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Plaintiffs allege this proposed housing development project complies

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with applicable, objective general plan and zoning standards that

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existed on the date the application was deemed complete.

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3.The Project was met with hostility on the part of the City of

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Lafayette. The record is replete with indications that the City was

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not interested in approving the Applicants proposal. In particular,

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obstructionism is demonstrated in the record by the amount of time

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(over a year) it took the City to release the Final Environmental

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Impact Report (EIR) and also by the Applicants response to the

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

findings in the EIR. The Applicant appealed the Planning

Commissions certification of the Final EIR to the City Council.

Lafayette City Council affirmed the Planning Commissions

certification. The Applicants, still unsatisfied and clearly of the

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opinion that they have viable claims, entered into a tolling

agreement with the City of Lafayette on September 11, 2013,
preserving the Applicants claims arising from the Certification of
Final EIR and allowing the Project to move to the next phase of the
application process. However, the Applicants had no more success in
the next phase of the application process.
4.At the first Design Review Commission hearing, held on September 30,
2013, after Applicants gave their presentation describing the
Project, twenty-two speakers spoke at the hearing, overwhelmingly
against the project, citing its very imposing size that was out
of scale with the communitys semi-rural character. There were
complaints about over-crowding at our schools and traffic jams.
November 25, 2013 the Design Review Commission formally rejected the

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Project, recommending the Planning Commission deny all of the

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permits the Applicants need to complete their proposed housing

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development project.

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5.On December 9th 2013, 2 years after the initial application and no

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closer to approval than when the Project was submitted, Steven Falk,

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Lafayette City Manager, made a presentation before Lafayette City

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Council proposing a significantly lower density version of the

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Project: 44 single family homes, an 85% reduction in density from

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the original version of the project (Alternative Project). Here is

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an excerpt from the City Managers presentation, emphasis added:

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Mayor Anderson and members of the City Council The matter before
you now concerns an alternative to the Terraces of Lafayette
project application for 315 apartment units along Deer Hill Road
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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

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and Pleasant Hill Road. Given the publics dissatisfaction with

the application... Given that the EIR for the project identified
13 significant and unavoidable impacts on the environment. 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 Californias Housing Accountability Act, which
limits the ability of cities to deny an affordable housing
development proposal 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

6.At this point, the Developer was faced with the following options:
(i) Proceed with the Project knowing it would be turned down, and
then pursue time consuming and costly litigation in order to secure
the approvals to which the Applicant is entitled under state law.
(ii) Abandon the project altogether, withdrawing the Project

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application. (iii) Accept the Citys lower density Project

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Alternative, avoid time consuming and costly litigation, and co-

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operate in the process necessary for receiving approvals for the

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lower density Project Alternative. The Developer chose the 3rd

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option and entered into a Process Agreement attached here as Exhibit

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A and explained in more detail in Section VI.

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7.In March 2014 Applicants submitted the Alternative Project described

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by the city manager. January 29, 2015 the Draft Supplemental EIR for

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the Alternative Project was published. May 18th, 2015 the Lafayette

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Planning Commission recommended the City Council certify the

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Supplemental EIR and approve the requested permits. On September 14,

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

2015 the City of Lafayette adopted Resolution 641, finally approving

an 85% lower density version of the Project.

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8.Respondents approval of Resolution 641 was an abuse of discretion

under Code Civ. Proc. 1094.5(b) because the City did not comply
with the protections of Gov. Code Sec. 65589.5(j). Petitioners bring
this action pursuant to the HAA, requiring the Respondent to either
approve the applicant's original project (or approve it with
conditions unrelated to density) or else make specific findings
regarding the original project. The City of Lafayette did not at any
time adopt findings explaining how the zoning compliant and general
plan consistent 315 unit Project would have a significant,
quantifiable, direct and unavoidable impact based on objective,
identified written public health or safety standards, policies or
conditions. Not having made such findings, Petitioners allege it
was the Citys duty to approve the proposed zoning compliant 315
apartment Project, or approve it with conditions unrelated to
density.

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9.If it was the California Legislatures intention to allow cities to

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modify proposed projects in such a way that would result in a lower

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density project (without making findings), the Legislature would not

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have included the phrase approve the project upon the condition

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that the project be developed at a lower density. The Legislature

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says, It is the policy of the state that a local government not

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reject or make infeasible housing developments, that contribute to

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meeting the need determined pursuant to this article without a

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thorough analysis of the economic, social, and environmental effects

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of the action (Cal. Gov't Code 65589.5(b)) The Project

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contributes to meeting Californias need for housing much more

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substantially than does the Alternative Project.

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

10.The City neither approved the proposed zoning compliant 315

apartment Project, nor approved it with other conditions unrelated

to density, instead, on September 14th, 2015, the City of Lafayette

entitled a significantly less dense version of the Project without

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making the necessary findings. The Applicants did not receive

unconditional approvals of their zoning compliant Project. They
received approvals for a lower density project.
11.In adopting the HAA, the California Legislature found that
California housing has become the most expensive in the nation. The
excessive cost of the state's housing supply is partially caused by
activities and policies of many local governments that limit the
approval of housing, increase the cost of land for housing, and
require that high fees and exactions be paid by producers of
housing. (Cal. Gov't Code 65589.5(a))
12.This Petition seeks issuance of a Writ of Mandate and declaratory
and injunctive relief against the Respondent, until it complies with
the laws of the State of California. Petitioner seeks a declaratory

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judgment, and preliminary and permanent injunctive relief enjoining

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the Respondent to repeal their approval of the 44 unit version of

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the project, and approve the original 315 unit housing development

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project.

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I.

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PARTIES

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13.Petitioner Sonja Trauss is a natural person and California citizen.

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14.Petitioner San Francisco Bay Area Renters Federation is an

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unincorporated association whose mission includes advocating for the

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production of housing to meet the needs of California citizens and

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

workers. Petitioners members are residents of California.

Petitioner has a direct and substantial interest in insuring that

Respondents comply with laws requiring the City of Lafayette to

address the housing needs of California citizens and workers.

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15.Respondent City of Lafayette is a California municipal corporation

(Lafayette or City).
16.Parties in Interest are Annie Maria Dettmer, as Trustee of the AMD
Family Trust, as amended and restated on September 23, 2005
(Dettmer), and OBrien Land Company, a California limited
liability company (OBrien), (Dettmer and OBrien together
Developer or Applicant).
17.Petitioner is ignorant of the true names and capacities of
Respondents sued herein as Does 1 through 25, and therefore sues
said parties by such fictitious names pursuant to California Code of
Civil Procedure section 474. Petitioner will amend this Complaint
and Petition to allege the true names and capacities when the same
are ascertained. Whenever in this Complaint and Petition any

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allegation is made against Respondent, it shall be deemed alleged

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against Does 1 through 25, as well.

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II.

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STANDING

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18.Petitioners have standing to raise the HAA claims because, as

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citizens, petitioners have a public interest in The City of

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Lafayettes full and complete compliance with state laws and

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regulations including, without limitation, California Government

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Code 65589.5.

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19.Petitioners seek to enforce an important right affecting the public

interest.
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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

20.If this petition is granted, a significant benefit will be

conferred on the general public or a large class of persons.

Petitioner will incur attorneys fees in the prosecution of this

action. The necessity and financial burden of prosecuting this

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action entitles Petitioner to an award of attorneys fees, including

under Code Civ. Proc. 1021.5
21.Petitioner seeks a remedy in the interest of justice.
22.Petitioner has no plain, speedy or adequate remedy in the ordinary
course of law.

III.
JURISDICTION AND VENUE
23.The court has jurisdiction over the Respondent and each of the
claims asserted herein and venue is proper in Contra Costa County.

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IV.
RESPONDENTS APPROVALS AT ISSUE
24.On September 14, 2015 Lafayette City Council adopted Ordinance 641:

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Approving a zoning amendment, a planned unit development,

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development agreement, a land use permit, hillside development

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permit, design review, grading permit, subdivision, and tree permit

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for the Homes at Deer Hill Project (Project Alternative) located

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at 3312 & 3233 Deer Hill Road (APNS 232-150-027 & 232-140-016).

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Petitioners challenge the adoption of Ordinance 641.

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25.Petitioners or their representatives objected to the adoption of

Ordinance 641 prior to Respondents decision to adopt Ordinance 641.

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V.

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EXHAUSTION OF ADMINISTRATIVE REMEDIES

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

26.Petitioners and their representatives testified in writing and in

person at Lafayette City Council August 8th and 10th and September

14th that the Respondents approval of Ordinance 641 would

constitute a violation of California state law.

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VI.
FACTUAL BACKGROUND

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27.On March 21, 2011, Developer submitted an application to the City

for the Terraces of Lafayette Apartment Project (Project).
Developer proposed to build 14 apartment buildings consisting of 315
apartments on a 22-acre parcel owned by the AMD Family Trust, at the
southwest corner of Deer Hill Road and Pleasant Hill Road on Contra
Costa Assessors Parcel Number 232-150-027. Seven of the buildings
would be three-stories, seven would be two-stories. There would also
be a two-story clubhouse (13,300 sq.ft.), a one-story leasing office
(950 sq.ft.) and 569 parking spaces. The residential building area

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would be 332,395 sq.ft and the project building area would be

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410,547 sq.ft. The project application included requests for a Land

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Use Permit (L03-11), Hillside Development Permit and Class I

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Ridgeline Exception (HDP06-11), Design Review (DR03-11), Grading

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Permit (GR04-11), and Tree Permit (TP07-11). The project application

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was deemed complete by city letter dated July 5, 2011. The EIR for

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the project was initiated in the fall of 2011 and the Draft EIR was

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released for public review May 8, 2012. The Final EIR was released

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on November 19, 2012, more than a year after the project was deemed

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complete. CEQA and CEQA guidelines require that the City must

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complete and certify a final EIR within one year from the date the

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application is deemed complete. In a letter dated July 29th 2013,

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

Allan Moore, attorney for the Applicant, wrote, we must again go on

the record to confirm as follows:

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1.The City Councils requests for information go far beyond that

necessary to certify the EIR and to comply with the CEQA
findings at CEQA Guideline 15090. Further in this regard, much
of the information requested has already been submitted -- or
is more appropriate to the project hearings than for the CEQA
certification.
2.The Citys delay in completing and certifying the EIR, and in
reviewing our project applications, go far beyond normal
processing delays, and violated the constitutional, due process
and related rights of Dettmer/ O'Brien.
28.The Planning Commission held public hearings on the Final EIR on
January 7, and February 4, 2013. The Final EIR made findings to the
effect that there are 13 significant and unavoidable impacts caused
by the project, findings the Applicants dispute. The Planning
Commission certified the Final EIR for the project on March 4, 2013.

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On March 18th, the Applicants appealed the decision of the Planning

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Commission certifying the Final EIR. On April 29, June 24 and August

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2, 2013 the City Council held public hearings to consider the

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appeal. On August 12, 2013 Lafayette City Council found that the EIR

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had been prepared in accordance with the provisions of the

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California Environmental Quality Act (CEQA) and certified the EIR.

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August 19th, 2013 the Applicants proposed the parties enter a

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tolling agreement, to preserve the claims the Applicants feel they

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have arising from the Citys certification of the Projects EIR. The

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tolling agreement was executed September 11, 2013.

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29.November 25th 2013 Design Review Commission recommended the

Planning Commission deny the applications for a Land Use Permit
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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

(L03-11), Hillside Development Permit and Class I Ridgeline

Exception (HDP06-11), Design Review (DR03-11), Grading Permit (GR04-

11), and Tree Permit (TP07-11).

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30.December 9, 2013, Lafayette City Manager Steven Falk presented an

alternative to the Terraces of Lafayette project application for 315
apartment units along Deer Hill Road and Pleasant Hill Road. The
City Manager testified as follows:
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 [and] that the Developer has indicated that, if the
project is denied, it will file a lawsuit against the
City...Given the risks to the City presented by that potential
lawsuit, and particularly those associated with Californias
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.

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31.The City Manager went on to describe the proposed alternative:

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...the alternative plan would have two major components. On the

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central part of the 22-and-a-quarter acre parcel would be a

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subdivision of 44 to 45 single family detached homes with lot sizes

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of about 4,500 sq.ft. each. On the eastern side would be a community

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park. To the west and south would be open space. The City Manager

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testified that city staffs primary goal was to significantly

reduce the number of units on the property. . This plan, as noted
earlier, would reduce the unit count from 315 to 45 units or less.
This is an 85% reduction compared to the current application.

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

32.On January 22, 2014 the Developer and the City entered into an

Alternative Process Agreement (Process Agreement). The parties

agreed that (i) the application for the Project would be suspended

pending the Citys decision regarding the lower density version,

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(ii) the Developer would prepare the development application

required for the lower density version of the Project and (iii) if
the Developer failed to win Entitlements for the lower density
Project, the application for the Project would immediately resume,
with Applicant and City situated as they were prior to the
suspension with all of their respective rights, obligations,
causes of action and defenses related to the [original project
application] intact, including all provisions of the Housing
Accountability Act
33.The Process Agreement establishes that the Project and the Project
Alternative are two versions of the same project, higher and the
lower density respectively and not two separate projects. The
Process Agreement establishes that applications for the two versions

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cannot be considered simultaneously. While the 44 unit version is

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being considered, the application for the 315 unit version is in

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stasis. If the 44 unit version is approved, the 315 unit version

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disappears. If the 44 unit version cannot be entitled, the

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application for the 315 unit version resumes. If they were two

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separate projects, and not two versions of the same project, it

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would be possible for the application process for both of them to

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happen concurrently and approvals regarding each project would be

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independent of each other. To the contrary, the Process Agreement

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specifies the applications of the two versions cannot be considered

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simultaneously, and the failure or success of the 44 unit version of

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

the project to gain entitlements has direct effects on the very

existence of the application for the 315 unit version.

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34.The Alternative Plan is not acceptable to all parties. In

particular, the Alternative Plan is not acceptable to the California
Legislature, or the citizens whose interests the legislature sought
to protect by prohibiting municipalities from approving zoning
compliant housing projects conditional on lower density without
making specific findings. The HAA finds, among the consequences of
those actions [activities and policies of many local governments
that limit the approval of housing] are discrimination against lowincome and minority households, lack of housing to support
employment growth, imbalance in jobs and housing, reduced mobility,
urban sprawl, excessive commuting, and air quality deterioration.
Many local governments do not give adequate attention to the
economic, environmental, and social costs of decisions that result
in disapproval of housing projects, reduction in density of housing
projects, and excessive standards for housing projects. (Cal. Gov't
Code 65589.5(a)(3) and (4))
35.June 12, 2014 the City submitted notice of preparation of a

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Supplemental EIR for the Terraces of Lafayette Project Alternative.

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Almost a full year later, on June 1, 2015, Lafayette Planning

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Commission recommended to the City Council certification of the

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Supplemental EIR.

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36.On September 14, 2015 Lafayette City Council adopted Ordinance 641:

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Approving a zoning amendment, a planned unit development,

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development agreement, a land use permit, hillside development

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permit, design review, grading permit, subdivision, and tree permit

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for the Project Alternative located at 3312 & 3233 Deer Hill Road

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(APNS 232-150-027 & 232-140-016).

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VII.

FIRST CLAIM FOR RELIEF

(Violation of California Housing Accountability Act Government Code

65589.5)

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37.Petitioner hereby realleges and incorporates by reference

paragraphs 1 through 36 as if fully set forth herein.
38.Respondents violated the HAA by approving the Applicants' Project
upon the condition that the project be developed at a lower density
without basing its decision upon the appropriate written findings.
39.Not having made the specified findings, respondents violated
Government Code 65589.5 by not speedily approving the Terraces of
Lafayette Apartment Project, which complied with the applicable,
objective general plan and zoning standards and criteria in effect
at the time the Projects application was deemed complete.
40.Wherefore, Petitioners pray for relief as set forth below.

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PRAYER FOR RELIEF

Wherefore, Petitioners pray for judgment against Respondents and s
as follows:
(1) Issuance of an alternative and peremptory writ directing

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Respondents to set aside, vacate, and rescind Ordinance 641: Approving a

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zoning amendment, a planned unit development, development agreement, a

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land use permit, hillside development permit, design review, grading

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permit, subdivision, and tree permit for the Homes at Deer Hill Project

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located at 3312 & 3233 Deer Hill Road (APNS 232-150-027 & 232-140-016);

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(3) Issuance of an alternative and peremptory writ compelling

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Respondents to grant Developers applications for Land Use Permit (L03-11),

Hillside Development Permit and Class I Ridgeline Exception (HDP06-11),

Design Review (DR03-11), Grading Permit (GR04-11), and Tree Permit (TP07-

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11).
(5) Award Petitioners their costs and reasonable attorneys fees as
permitted by law, including without limitation Code of Civil Procedure
1021.5;
(6) Grant such other and further relief as the Court may deem just
and proper.

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DATED: December 7, 2015

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SONJA TRAUSS
In Pro Per

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

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VERIFICATION
I, Sonja Trauss, declare:
I am a natural person and a citizen of California. My place of
residence is 1618 12th Street Oakland CA 94607.
I am the Founder of the San Francisco Bay Area Renters Federation. I

make this verification on behalf of myself and on behalf of the San

Francisco Bay Area Renters Federation.

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I have read the foregoing Verified Petition for Writ of Mandate and
Complaint for Declaratory Relief and know its contents. The facts set

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forth in the foregoing document are within my knowledge. I am informed and

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believe and on that ground allege that the matters stated in the foregoing

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document are true.

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I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.
Executed this ___th day of December, 2015, in San Francisco,
California.

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__________________________

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Sonja Trauss

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PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS