After 12 arduous years, the 315-unit Terraces of Lafayette apartment project is finally clear to be constructed now that the California Supreme Court rejected Save Lafayette’s request for review.  The Court also rejected Save Lafayette’s request that the California Supreme Court depublish the Court of Appeal’s unanimous opinion affirming the Contra Costa Superior Court’s ruling that the City of Lafayette validly complied with both the Housing Accountability Act and the California Environmental Quality Act in finally approving the project.

The 20% affordable project was the centerpiece of an epic saga in a wealthy suburban community with a group of dogged NIMBY’s who used every tool in the book to try to kill the project because of their perception that it didn’t fit in their exclusive community.  Thinking they could have their cake and eat it, too, the group also successfully opposed and killed a 44-unit single-family development compromise project the City proposed.  But unlike the apartment project, the compromise project was not protected by the HAA.

Our client, O’Brien Land Company, filed the application for the apartment project in 2011, expressly in reliance on the HAA, and the City deemed the application complete that year.  Although the project was immediately opposed by the newly formed NIMBY group known as Save Lafayette, the City certified the project EIR in 2013.  As the EIR somehow included 13 supposedly significant and unavoidable environmental effects, the City did not act on the project’s development application at that time.  Instead, at the City’s behest, the developer pursued the smaller, single-family home compromise project.  The City approved that project in 2015.

The California Renters Legal Advocacy and Education Fund (CaRLA) opposed the smaller compromise project, argued that it amounted to an unlawful disapproval under the HAA, and contended that the City was required to approve the larger apartment project.  The Contra Costa County Superior Court eventually ruled in favor of the City and O’Brien, holding that the compromise project did not violate the HAA.

Save Lafayette also opposed the compromise project and filed a ballot referendum and a lawsuit regarding that project.  The litigation and referendum eventually killed the compromise project when Lafayette citizens voted against it in 2018.  The apartment project then resumed processing that year, after the HAA had further been strengthened through various important amendments.

The resumed apartment project was immediately opposed again by Save Lafayette.  One of the group’s founding members successfully ran for City Council on a platform of opposing the project.  Although that Councilmember eventually recused herself because her longstanding and continuing project opposition violated O’Brien’s constitutional right to procedural due process, she eventually unilaterally declared that she had no financial conflict of interest and elected to unrecuse herself—perhaps the first “unrecusal” in California history—contrary to the advice of the City’s attorney.

In the face of Senate Bill 330’s five-hearing limit, the City conducted the final five lengthy public hearings in 2020.  The Planning Commission and Transportation & Circulation Commission held a joint session public hearing in January of 2020, once SB 330 had taken effect.  The Planning Commission then held a 7 hour public hearing in May of 2020 and approved the project after a 7 ½ hour hearing in June of 2020.  But in an effort to prevent Save Lafayette from having to pay the City’s high administrative appeal fees, a member of the City Council appealed the approval on the group’s behalf.  The City Council held a 9 1/2 hour hearing in early August of 2020 and a nearly 9 hour hearing later that month, finally approving the project at its 120th public meeting.  The Council vote was 4-1 and the only member opposing the project was the member elected on the basis of her express promise to oppose it.

Save Lafayette sued to overturn the project approvals in September of 2020, but in November of 2021 the Contra Costa County Superior Court rejected their claims and upheld the City’s approval of the project.  In November of 2022, in Save Lafayette v. City of Lafayette, 32 Cal.App.5th 148 (2021), the Court of Appeal unanimously held that the City’s environmental review complied with CEQA and that the City properly followed the HAA in approving the project.  Save Lafayette then requested that the California Supreme Court exercise its discretion to review and depublish the Court of Appeal’s decision.

For those keeping score at home, the project included three separate lawsuits (in fact, there were others), one Environmental Impact Report, a supplemental EIR, two addendums, one recusal, one “unrecusal,” and at least 120 public hearings.  But when the City was forced the consider the project on the merits in 2020—after the HAA had been significantly strengthened, SB 330 was in effect, and the City conducted the final five hearings—the Planning Commission approved the project, the City Council denied the appeal, and California’s courts all agreed the project was validly approved under the HAA and CEQA.

O’Brien Land Company may now build this important and much-needed new housing, which will include apartments for 63 lower-income families in a community with a severe shortage of such units.  And while there are plenty of things the legislature still needs to do to help solve the ongoing housing supply crisis, including further strengthening of the HAA, the case is a key demonstration of the power of the HAA in its current form.

In addition to representing O’Brien in the entitlement process, Miller Starr Regalia represented O’Brien in the litigation at the trial court, Court of Appeal, and Supreme Court levels.

Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit