LAFAYETTE -- A legal agreement between the city and the owner and developer of the proposed Terraces of Lafayette apartment project will be clarified following an outcry from angry residents.

The deal suspends a lawsuit over the project's environmental impact review and preserves claims made by the applicants and defenses by the city.

City Attorney Mala Subramanian will return to the city council Oct. 15 with changes to language in a "tolling" agreement between the city, property owner Anna Maria Dettmer and developer The O'Brien Land Company.

Following public comment at the October meeting, the council will then decide whether to accept revisions that would further clarify an agreement attorney David Bowie said is "reciprocal" and "mutual."

But Bowie's characterizations are a far cry from those voiced by residents calling the agreement "one-sided" and say it only preserves the applicant's claims and not the city's.

Subramanian explained that the city currently has no claims.

"The city does not have any claims against the applicant against the EIR. It was the city's decision to certify the EIR and it's the city's EIR -- that's why the tolling agreement is set up that way," she said.

The city and Dettmer's and O'Brien's attorneys reached the agreement in closed session earlier this month, after the attorneys withdrew a lawsuit challenging what they argued was a delay in certifying the project's environmental review. Dettmer and O'Brien also do not agree with the inclusion of 13 "significant, unavoidable impacts" the city says would resulting from the project. The city council certified the EIR Aug. 12.


Advertisement

According to the agreement, any claims or defenses are suspended until Feb. 12, 2014, or 30 days after any party withdraws.

"If you did not execute the tolling agreement, the applicant's attorneys made it very clear that they would sue the city," Subramanian told the council.

She also explained that the city would battle the lawsuit in court on the grounds that it is untimely.

"(The California Environmental Quality Act) is required when you're approving a project, and there has been no decision on the project," she said. "So we'd be going to court to defend the lawsuit saying that such lawsuit is premature."

The agreement also saves the city some money, especially if another lawsuit arises after the project's merits are considered.

"It would cost the city less, which is why we recommended to the city council that you avoid this unnecessary litigation at this time," Subramanian said.

The city attorney also reminded officials -- and the public -- about the council's actions after coming to the agreement during closed session. Mayor Mike Anderson made a brief announcement during the Sept. 9 meeting that the council had authorized City Manager Steve Falk to negotiate and sign a tolling agreement with the applicants related to the Terraces Project.

"He did not act independently," Subramanian told the council, countering claims by some residents that the agreement was "shady" and a "backroom" deal. The next council meeting is scheduled for Oct. 15.

Infobox1