Terraces of Lafayette - Additional Environmental Review

As processing of the application of the 315-unit Terraces of Lafayette apartment project has resumed several years after the certification of the project's environmental impact report ("EIR") in August 2013, the passage of time and some design changes to the project have necessitated additional environmental review under the California Environmental Quality Act ("CEQA").

When additional CEQA review is needed after an EIR has already been certified, a lead agency such as the City of Lafayette has two choices:  (1) prepare a subsequent or supplemental EIR (an "SEIR"); or (2) prepare an Addendum to the prior EIR.

The test for whether an SEIR, rather than an Addendum, is required as set forth in California Public Resources Section 21166 and CEQA Guidelines Section 15162, which provides that once an EIR has been certified, no subsequent or supplemental EIR shall be prepared for the project unless the lead agency determines, based on substantial evidence, one or more of the following:

(a) Substantial changes are proposed in the project that will require major revisions of the EIR;

(b) Substantial changes occur in the circumstances under which the project is being undertaken that will require major revisions in the EIR; or

(c) New information of substantial importance that was not known and could not have been known at the time the EIR was certified as complete becomes available.

An SEIR must be prepared if such changes or new information result in new significant environmental impact or a substantial increase in the severity of previously identified impacts.  An SEIR must also be prepared if mitigation measures or alternatives previously not found to be feasible would in fact be feasible or mitigation measures or alternatives that are different from those analyzed in the previous EIR, and those mitigation measures or alternatives would substantially reduce one or more of the project's significant impacts, but the project applicant declines to adopt the mitigation measure or alternative.

An Addendum must be prepared if there are some necessary changes or additions to the prior EIR, but none of the above conditions requiring the preparation of an SEIR have occurred.

The City has not yet determined whether an SEIR is required for the Terraces project, or whether an Addendum will be sufficient.  However, the project applicant has expressed its view that an Addendum is the appropriate document, and has submitted a draft Addendum and related materials prepared by a consultant retained by the applicant.

Under CEQA, the City may accept a draft CEQA document prepared by a project applicant or its consultant.  Before using such a draft prepared by the applicant, the City must review and analyze the document, as any CEQA document must reflect the City's independent judgment, and the lead agency is responsible for the adequacy and objectivity of the document.  For this reason, the City is in the process of engaging an independent consultant, selected from the City's approved list of CEQA consultants, to review and analyze, at the applicant's expense, the Addendum package submitted by the project applicant, in order to assist City staff with making the following three determinations:

(1)  The appropriate level of CEQA document for the Project at this point in time (Addendum or SEIR).

(2)  The consultant will peer review the Addendum submitted by the applicant and provide an opinion regarding its adequacy.

(3)  Identifying any deficiencies in the Addendum, and the need for any further work or analysis.

The City anticipates that the independent consultant's peer review of the Addendum and delivery of its findings regarding the above three determinations should take approximately four weeks after the consultant is retained.

After receiving the consultant's findings, the City, exercising its independent judgment, may need to ask its consultant to undertake any additional work that may be necessary to either prepare an SEIR, if required, or to complete any additional analysis that may be necessary to ensure that the Addendum for the project is adequate and objective.  The Developer prepared a draft Addendum which can be viewed here. The City hired Impact Sciences, a CEQA consultant on the City's approved consultant list, to complete a third party independent review of the applicant prepared draft Addendum. The Impact Sciences letter can be found here.  City of Lafayette staff is working with Impact Sciences and TJKM Transportation consultants to complete the environmental review of the Terraces of Lafayette project.  This task may take until October 2019 to complete. Additionally, the Planning Commission requested that upon completion of the CEQA determination, the Project go to the Transportation and Circulation Commission for review and recommendation and return to the Planning Commission on the merits of the Project.

Below are current documents related to the EIR Addendum submitted by the project applicant: