A-5 Mining activities have not historically occurred within the City of Clayton, including any of the housing sites identified in the HEU. Future development of these sites would have site-specific evaluation of the potential for historic mining activities on the respective properties. If it is determined that mining activities had actually occurred on a proposed housing site, appropriate additional evaluation of the potential for hazardous materials or waste to occur on the site would be conducted and appropriate action taken. Therefore, no changes are required to the EIR, and no additional mitigation is required.
A-6 The City’s development review process, which includes CEQA compliance for new projects, will evaluate and determine if or to what degree a site is safe for construction and operation of a proposed project. For example, a site with existing facilities may require a Phase I Environmental Site Assessment (ESA) to characterize (i.e., identify) if asbestos-containing materials, lead-based paint, polychlorinated biphenyls, or other 2 – Response to Comments
2-6 Final Environmental Impact Report
November 30, 2022
ID Response to Comment Letter A – Department of Toxic Substances Control hazardous materials (hazmat) are or may reasonably expected to be present onsite.
If so, then a Phase II ESA may be required to sample and laboratory test onsite materials for the actual presence of these and other suspected hazardous materials.
If the Phase II ESA characterization identifies such materials onsite, then a Phase III remediation plan may be needed to specify how identified hazmat will be safely removed from the site. Any characterization and remediation must follow established laws and regulations monitored by the appropriate regulatory agencies, such as DTSC, RWQCB, County Department of Environmental Health. For example, there are dozens of laws and regulations monitored by the U.S. Environmental Protection Agency for remediating asbestos-containing materials alone. The City will also refer preparers of ESAs to the reference cited by the commenter as appropriate. Under current laws and regulations, the City would be the lead agency under CEQA, and the City or other appropriate agencies will be responsible for site characterization and, if necessary, remediation prior to development. This information was explained in Section 4.9 of the Draft EIR as clarified here in this response. As a result, no changes are required to the EIR, and no additional mitigation is required for this regulatory compliance.
A-7 The City will comply with existing laws and regulations regarding the contents and safety of any fill materials, including the reference cited by the commenter regarding hazmat standards for fill materials. As a result, no changes are required to the EIR, and no additional mitigation is required for this regulatory compliance.
A-8 The City’s development review process includes CEQA compliance for new projects, which will evaluate and determine if or to what degree a site may be contaminated by past agricultural or weed abatement activities. Under current laws and regulations, the City would typically require a Phase I ESA. A Phase II characterization and/or Phase III remediation may also be required if contamination is already known or is identified in the Phase I ESA. Remediation in these instances must occur under the oversight of an appropriate state agency such as DTSC or RWQCB, although sometimes the oversight can occur under the County Department of Environmental Health where allowed under existing hazmat regulations. Therefore, no changes are required to the EIR, and no additional mitigation is required for this regulatory compliance.
2 – Response to Comments
Clayton Housing Element Update 2-7
City of Clayton
COMMENT LETTER B – CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE 2 – Response to Comments
2-8 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-9
City of Clayton
2 – Response to Comments
2-10 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-11
City of Clayton
2 – Response to Comments
2-12 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-13
City of Clayton
2 – Response to Comments
2-14 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-15
City of Clayton
2 – Response to Comments
2-16 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-17
City of Clayton
2 – Response to Comments
2-18 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-19
City of Clayton
2 – Response to Comments
2-20 Final Environmental Impact Report
November 30, 2022
ID Response to Comment Letter B – California Department of Fish and Wildlife B-1 It is agreed that the CDFW is California’s Trustee Agency for fish and wildlife resources and has jurisdiction in the process of this environmental review. This comment has been recorded for the record. No changes are required in response to this comment.
B-2 It is agreed that the CDFW is a Responsible Agency for this environmental review.
This comment has been recorded for the record. No changes are required in response to this comment.
B-3 The project description is adequately summarized in the CDFW’s comment letter. This comment has been recorded for the record. No changes are required in response to this comment.
B-4 The project location is adequately summarized in the CDFW’s comment letter. This comment has been recorded for the record. No changes are required in response to this comment.
B-5 The regulatory authority over the Lake and Streambed Alteration Agreement permitting process of the CDFW is adequately summarized in the CDFW’s comment letter. This comment has been recorded for the record. No changes are required in response to this comment.
B-6 The regulatory authority over the California Endangered Species Act and Native Plant Protection Act permitting processes of the CDFW is adequately summarized in the CDFW’s comment letter. This comment has been recorded for the record. No changes are required in response to this comment.
B-7 Fish and Game Code protections on Migratory Birds and Raptors are adequately summarized in the CDFW’s comment letter. This comment has been recorded for the record. No changes are required in response to this comment.
B-8 The cumulative impact analysis can be found starting on the last paragraph on page
4.4-31 of the Draft EIR. The project does not have expected significant impacts in combination within any known project(s), as it is not expected to result in a net reduction in habitat for rare or special-status species, or any other new CEQA impacts, based on conforming with the requirements of ECCC HCP/NCCP. The 18 proposed sites have been at least partially previously developed (A, B, E, F, G, H, I, J, K, M, N, O, Q, R, S), are disturbed by fire maintenance mowing/disking (D, L), or are entirely developed (P) and are generally within an urban corridor, and the proposed housing developments would not be expected to significantly impact biological resources when implementing the requirements of the ECCC HCP/NCCP.
No changes have been made based on this comment.
B-9 The City of Clayton complies with the ECCC HCP/NCCP for projects pursuant to Ordinance No. 412 and Chapter 16.55 to the Clayton Municipal Code. Individual project sites will be evaluated for compliance with the ECCC HCP/NCCP pursuant to the Clayton Municipal Code. The applicant(s) themselves may not opt out of ECCC HCP/NCCP compliance without review by the City of Clayton. Any exemptions are reviewed in per 16.55.030 for the Clayton Municipal Code and Chapter 9.3.1 of the ECCC, which generally only exclude development fees for already developed urban cover. Surveys for special-status wildlife and plants are already required pursuant to the ECCC HCP/NCCP for any sites that may have potential impacts to rare or specialstatus species. 2 – Response to Comments
Clayton Housing Element Update 2-21
City of Clayton
ID Response to Comment Letter B – California Department of Fish and Wildlife A table has been added (under response to Comment B-15) to clarify which sites will likely require ECCC HCP/NCCP applications pursuant to 16.55.030 of the ECCC HCP/NCCP. Only one site (Site P), which consists of a paved parking lot in an urban setting, might be excluded from the requirements of the ECCC HCP/NCCP based on the City of Clayton Municipal Code, as no sensitive species or habitats are expected to occur in such a developed area.
No new mitigation measures have been added in response to this comment.
B-10 The Biological Resources Constraints Map is updated to change the “NWI wetlands” to “NWI Wetlands, including Creeks/Streams.” Please see Section 3.0, Errata for the updated map. Additionally, text has been added to the Errata section to indicate that the state also has jurisdiction over these areas and adjacent riparian vegetation.
No additional mitigation measures have been added in response to this comment.
B-11 Less than significant impacts are expected for state and federal jurisdictional waters areas under the Clayton HEU with implementation of the Conservation Measures included in the ECCC HCP/NCCP. Although less than significant impacts are expected, additional descriptions of waterways present within the Planning Area are outlined in the Errata (Section 3.0) to provide an improved description of the Environmental Setting at the CDFW’s request. As a provision of the ECCC HCP/NCCP, development setbacks from federal and state jurisdictional waters are required: please see table provided for comment B-15 for a review of sites that likely will require setbacks and be subject to ECCC HCP/NCCP requirements and review procedures. The ECCC HCP/NCCP includes a set of conservation requirements (see Table 9-5 of the ECCC HCP/NCCP) to address offsets for potential project-level impacts that requires evaluating temporary and permanent impacts that may serve as the basis for jurisdictional permitting, if required.
No significant impacts are expected to occur to fin-fish or any special-status fish species outlined in Table 4.4-1 of the Draft EIR. As the drainages that that cross the proposed sites are intermittent or seasonally inundated, fin-fish can be completely avoided by the project(s). Pursuant to Conservation Measure 2.12 Wetland, Pond, and Stream Avoidance and Minimization of the ECCC HCP/NCCP, impacts to streams (habitat for fin-fish) are to be avoided. Conservation Measure 1.10, Maintain Hydrologic Conditions and Minimize Erosion, which is intended to protect sensitive fish populations, will also serve to avoid significant impacts to fin-fish.
A jurisdictional delineation is required for sites B, D, F, G, I, J, L, M, and R, in accordance with the requirements of the ECCC HCP/NCCP, and due to the potential presence of waterways or wetlands under multiple existing regulations (e.g., Fish and Game Code, Clean Water Act). However, site-specific jurisdictional delineations are not required at this time and are impractical as, at this program level of review, development footprints, timing and other project level characteristics cannot be known until an actual development proposal is submitted to the City. Jurisdictional delineations typically expire within five years, as formalized in U.S. Army Corps of Engineers’ Guidance Letter No. 05-02 (2005), because conditions may change locally and will not remain the same for an infinite amount of time, due to both man-made (such as impoundments up- or downstream) and natural causes (flooding, erosion, etc.). Specifically for the same reason, potential impacts such as “substantial diversion or obstruction of natural flows; substantial change or use of material from 2 – Response to Comments
2-22 Final Environmental Impact Report
November 30, 2022
ID Response to Comment Letter B – California Department of Fish and Wildlife the bed, bank, or channel (including removal of riparian vegetation); and deposition of debris, waste, sediment, or other materials into water feature causing water pollution that is deleterious to fish and wildlife” are not evaluated in this program-level planning document at this time, as no site plans are yet available. All the mitigation measures (1 to 4) recommended in this comment are covered by the following conservation measures of the ECCC HCP/NCCP, respectively.
1. Habitat Assessment – See Chapter 6.3.1, Planning Surveys of the ECCC HCP/NCCP, which requires a site assessment by a biologist to evaluate if jurisdictional waters may be present on site.
2. Wetland Delineation – See Chapter 6.3.1 Planning Surveys, under the heading Jurisdictional Wetlands and Waters of the ECCC HCP/NCCP, which requires a jurisdictional delineation to be performed as part of the application process.
3. Project-Specific Notification of Lake and Streambed Alteration for Future Development Sites – Conservation Measure 2.12. Wetland, Pond, and Stream, Avoidance and Minimization requires jurisdictional permitting as part of ECCC HCP/NCCP compliance. Each of the 18 sites will be evaluated for compliance with the ECCC HCP/NCCP at a project-level. It is anticipated that most projects will avoid impacts to waterways by implementing the setbacks described in Conservation Measure 1.7 in Chapter 6 of the ECCC HCP/NCCP.
The measures required in the ECCC HCP/NCCP are intended to serve as a basis for Lake and Streambed Alteration Agreements and other water permitting (e.g., Clean Water Act), if required, and are reviewed as part of the ECCC HCP/NCCP application process.
Compensatory Mitigation for Riparian Impacts – See Chapter 5.2.3 Mitigation for Jurisdictional Wetlands and Waters, Conservation Measure 2.12, and Chapter 9.3.1 Mitigation Fees of the ECCC HCP/NCCP, which provide general guidance on compensatory mitigation. No new mitigation is added in response to this comment.
B-12 The known range of large-flowered fiddleneck (Amsinckia grandiflora) does not historically overlap the Planning Area based on publicly available datasets of documented occurrences (e.g., Consortium of California Herbaria [https://ucjeps.berkeley.edu/consortium/] and BIOS
[https://wildlife.ca.gov/Data/BIOS]), and no collection or documentation of this species is known to have ever been made within the limits of the Planning Area. The largeflowered fiddleneck is only known from a few occurrences in the Diablo Ranges that are all outside of the Planning Area, with the closest occurrences being over 2.3 miles away on the unique substrates of the Black Diamond Mines. It is understood that the U.S. Fish and Wildlife Service’s (USFWS) IPaC/ECOS range map shows that the range incorrectly overlaps with the Planning Area; however, this range map is based on models and/or presumptions rather than actual data. Of note, USFWS IPAC/ECOS range maps often encapsulate areas of unsuitable habitats to illustrate a range as a polygon rather than specific occurrences, and sometimes the range maps do not accurately reflect the true range of a given species.
B-13 We agree that the loggerhead shrike (Lanius ludovicianus) may be present within the Planning Area, but since the species did not come up on the CNDDB search, it was inadvertently left out of the table. As seen in eBird, loggerhead shrike has many occurrences and a large distribution within and around the Planning Area. The 2 – Response to Comments
Clayton Housing Element Update 2-23
City of Clayton
ID Response to Comment Letter B – California Department of Fish and Wildlife number of species with potential to occur has been updated; evaluation of loggerhead shrike as “May be Present” can be found in the Errata (Section 3.0). Each individual project site that could support sensitive species would be required to prepare a Biological Resources Study to evaluate project-specific impacts pursuant to requirements of the ECCC HCP/NCCP. With the required incorporation of the Conservation Measures required for the ECCC HCP/NCCP, including pre-project surveys, less than significant impacts are anticipated to loggerhead shrike.
B-14 See comment B-9. Each individual project site that could support rare or specialstatus species would be required to prepare a Biological Resources Study to evaluate project-specific impacts pursuant to requirements of the ECCC HCP/NCCP. It is not anticipated that the sites selected in the Clayton 6th Cycle Housing Element Update would significantly impact any State Fully Protected Species with incorporation of the Conservation Measures developed for the ECCC HCP/NCCP, including pre-project surveys. No additional mitigation measures beyond the actions required by the ECCC HCP/NCCP are required to comply with the California Fish and Game Code.
B-15 Table B-15 has been included below to summarize the requirements of the ECCC HCP/NCCP. Because the ECCC HCP/NCCP review will occur before the approval of separate site developments under the Clayton HEU rather than at the time of this Program EIR, the individual required Conservation Measures per site are not considered final at this time. Note that Table B-15 does not provide any new information not presented in the Draft EIR but provides a summary of requirements. 2 – Response to Comments
2-22 Final Environmental Impact Report
November 29, 2022
Table B-15. Proposed Sites and Requirements of the East Contra Costa HCP/NCCP.
Note: This table does not provide any new information not presented in the Draft EIR but provides a summary of requirements.
Site Potentially
Regulated
Species or
Habitat
(Potential or
Less Likely*)
Wetlands,
Streams, or
Riparian
Vegetation
Present
Requirements of the East Contra Costa HCP/NCCP
Submittal and Approval of HCP/NCCP
application, including implementing
planning biological surveys for covered
activities and fee payment
Compliance with Specific
Conditions on Covered
Activities described in Chapter
6.4 of the ECCC HCP/NCCP
Jurisdictional Delineation and
Establishment of Stream
Setbacks (see CM 1.7 in Chapter 6
of the ECCC HCP/NCCP)
A Less Likely No Yes Yes No
B Potential Yes Yes Yes Yes
D Potential Yes Yes Yes Yes
E Less Likely No Yes Yes No
F Potential Yes Yes Yes Yes
G Potential Yes Yes Yes Yes
H Potential No Yes Yes No
I Potential Yes Yes Yes Yes
J Potential Yes Yes Yes Yes
K Less Likely No Yes Yes No
L Potential Yes Yes Yes Yes
M Potential Yes Yes Yes Yes
N Potential No Yes Yes No
O Potential No Yes Yes No
P Less Likely No Unlikely** No No
Q Less Likely No Yes Yes No
R Potential Yes Yes Yes Yes
S Potential No Yes Yes No
*Sites located in urban and well-developed areas that are significantly less likely to support most of these species include Sites A, E, H, K, N, O, P, S; however, field surveys are required to confirm for compliance with the ECCC HCP/NCCP. ** This site has potential to be excluded from requirements of the ECCC HCP/NCCP based on 16.55.030 Applicability, as it is located within an urban area and is a developed parcel that would not be expected to contain native vegetation or suitable habitat for sensitive species. 2 – Response to Comments
Clayton Housing Element Update 2-23
City of Clayton
B-16 Complying with the Conservation Measures of the ECCC HCP/NCCP does not constitute additional mitigation measures pursuant to CEQA, but rather is compliance with existing laws and plans. Both Significance Thresholds for Impact BIO-1 and Impact BIO-2, and corresponding mitigation measures recommended by CDFW, are already covered by conservation measure requirements of the ECCC HCP/NCCP.
Please also see response to comment B-11.
B-17 In the ECCC HCP/NCCP, measures are already incorporated to avoid impacts to nesting birds, and no take of migratory birds is requested as part of this program level EIR. Projects are already required to be seasonally timed, to avoid impacts to Covered migratory birds (see the last paragraph of page 6-25 that continues to 6-26), and seasonal timing will also assist with avoidance of non-covered migratory birds.
Additionally, the BMPs provided in Conservation Measures 1.12 and 1.14 incorporate avoidance guidelines for compliance with the Migratory Bird Treaty Act and conform to those typically used for compliance with the California Fish and Game Code.
The required Planning Surveys (see Chapter 6 of the ECCC HCP/NCCP), will be used to establish if suitable habitat is present for migratory birds, including nesting sites, and project designs must avoid take. No additional mitigation measures are required to comply with the existing California Fish and Game Code or Migratory Bird Treaty Act. No changes have been made in response to this comment.
B-18 No changes have been made to Table 2-1, as no new mitigation measures have been applied pursuant to the comments provided by CDFW.
B-19 The requirement for submitting environmental data is adequately summarized in the CDFW’s comment letter. This comment has been recorded for the record. No changes are required in response to this comment.
B-20 The requirement for Filing Fees is adequately summarized in the CDFW’s comment letter. This comment has been recorded for the record. No changes are required in response to this comment.
2 – Response to Comments
2-24 Final Environmental Impact Report
November 30, 2022
COMMENT LETTER PC – CLAYTON PLANNING COMMISSION REGULAR MEETING 2 – Response to Comments
Clayton Housing Element Update 2-25
City of Clayton
2 – Response to Comments
2-26 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-27
City of Clayton
2 – Response to Comments
2-28 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-29
City of Clayton
2 – Response to Comments
2-30 Final Environmental Impact Report
November 30, 2022
2 – Response to Comments
Clayton Housing Element Update 2-31
City of Clayton
ID Response to Planning Commission Regular Meeting Comments PC-1 This comment does not address the adequacy of the environmental impact analysis contained in the Draft EIR. This comment has been recorded for the record. No changes to the Draft EIR are required in response to this comment.
PC-2 The commenter asks why the HEU and UWMP population projects are so different.
The reason for the difference is that the two estimates of future population growth were prepared for different purposes. The UWMP is based on the California Department of Finance (DOF) E-5 projected Population Estimates for Cities and Counties and growth rates provided in the Association of Bay Area Governments (ABAG) Projections 2040 book (CCWD UWMP p. 1-4). The housing and population projections shown in the HEU are also based, in part, on regional projections from ABAG as outlined in their Plan Bay Area 2050, which is updated every 5 years (last updated in 2020). However, every 7-8 years, the State’s Regional Housing Needs Allocation (RHNA) process, through ABAG and other Councils of Government (COG) throughout the State, assigns each city and county in California their regional share of new housing units to be built. These housing units are intended to accommodate both existing need and projected growth in each region. Unlike the DOF or UWMP estimates, the HEU RHNA for the City is not a projection or forecast: it is a goal to attain for the City to accommodate its RHNA. These goals are based on directives from the Governor, the Legislature, and the State. Department of Housing and Community Development (HCD) intended to help meet the State’s large housing deficit by encouraging more housing to be built at the local level.
Mitigation Measure MM UTL-1 (see below) helps assure there will be direct, timely connectivity between the provision of new housing and the availability of water in the future. With implementation of this measure, the EIR concluded development under the HEU would be less than significant.
MM UTL-1 Water Demand Management. Prior to receiving entitlements for new residential development under the Housing Element Update, new projects must contact the CCWD and obtain confirmation that adequate water service can be provided and adequate water supplies are available consistent with their latest Urban Water Management Plan.
PC-3 The commissioner’s concern that the Draft EIR GHG mitigation measures could be problematic for utilities and electric infrastructure is consistent with information in State planning documents related to GHG emissions reductions. It is generally accepted that the State’s electric grid will need to undergo transitions to address, support, and achieve the State’s long-term GHG emissions reduction goals. For example, the California Air Resources Board’s (CARB) Draft Scoping Plan (pp. 156 to 163) identifies that vehicle and building electrification plans will result in unprecedented electric system load growth and emphasizes the need for a clean electric grid that supports decarbonization of California’s economy.
Staff notes that the 2022 Energy Code, which will take effect on January 1, 2023, will support building electrification and associated utility improvements in Clayton, Contra Costa County, and the State. For example, the 2022 Energy Code encourages efficient electric heat pumps, establishes electric-ready requirements for new homes, and expands solar photovoltaic and battery storage standards for certain new residential developments. Staff also notes that the Draft EIR provides flexibility regarding energy resources. Mitigation Measure GHG-1 (Prohibit Natural Gas 2 – Response to Comments
2-32 Final Environmental Impact Report
November 30, 2022
ID Response to Planning Commission Regular Meeting Comments Plumbing and Appliances in New Housing Sites) is consistent with the latest guidance and recommendations from the Bay Area Air Quality Management District but provides specific exceptions where a prohibition on natural gas infrastructure may not be warranted or possible. In addition, the natural gas prohibition identified in Mitigation Measure GHG-1 could be replaced by the City with a Zero Net Energy Ordinance (per Mitigation Measure GHG-2) that provides energy flexibility specific to Clayton. For these reasons, the Draft EIR GHG mitigation measures would not result in unanticipated or unexpected planning or logistical issues surrounding utility infrastructure.
PC-4 Draft EIR Mitigation Measure GHG-1 (Prohibits Natural Gas Plumbing and Appliances in New Housing Sites) is consistent with the BAAQMD’s April 2022 CEQA thresholds for evaluating climate change impacts of land use projects and plans. Mitigation Measure GHG-2 (Consider Adoption of a Zero Net Energy Ordinance) provides flexibility for the City to develop alternative means to enhance energy efficiency, reduce GHG emissions, and retain natural gas usage in buildings. At this time, the City is uncertain if such an approach is feasible and appropriate for the City given that future specific development characteristics in the City, and more specifically in the HEU housing sites, are unknown. Staff will seek clear direction from the City Council on whether to study the development of ZNE ordinance, and any potential ramifications of not adopting a ZNE ordinance.
PC-5 This comment does not address the Draft EIR analysis. City staff provided information about how Alternative 2 was formulated during the Planning Commission meeting.
This comment has been recorded for the record. No changes to the Draft EIR are required in response to this comment.
Clayton Housing Element Update 3-1
City of Clayton
3 – ERRATA
This section identifies revisions to the City of Clayton Housing Element Update Draft EIR to incorporate clarifications, corrections, or additions prepared in response to comments received on the Draft EIR. These changes include minor errors or editorial corrections identified through subsequent review. Additions are shown in underline. Deletions are shown in strikethrough.
Commentary notes are shown in Italic type where needed.
None of the revisions below represents a substantial increase in the severity of an identified significant impact or the identification of a new significant impact, mitigation, or alternative considerably different from those already considered in the Draft EIR.
Draft EIR Chapter 4.4, Biological Resources
Draft EIR Section 4.4.1, Environmental Setting, Special-Status Species (Page 4.4-2, 2nd paragraph, first sentence): Based on a review of databases and a desktop habitat assessment, approximately 33 34 special status species were determined to “May be Present” within the Planning Area, with potential to occur on at least some of the Sites (see Table
4.4-1).
Draft EIR Section 4.4.1, Environmental Setting, Jurisdictional Wetlands (Page 4.4-2, 3rd paragraph): Multiple wetlands are mapped within the Planning Area by the USFWS National Wetlands Inventory (NWI). Although a field delineation would be needed to confirm this, it is highly likely that wetlands, including Creeks/Streams, under federal and state jurisdiction are present on some of the Sites, including Sites B, D, F, G, I, J, L, M, and R. The United States Army Corps of Engineers uses the 1987 Corps of Engineers Wetlands Delineation Manual and regional supplements to define wetlands under Section 404 of the federal Clean Water Act using three criteria: hydrophytic (water-loving) vegetation, hydric soils, and hydrology.
An area that meets all three criteria is considered a wetland under federal and State jurisdiction.
Additionally, riparian vegetation adjacent to wetlands and streams is also under State jurisdiction.
Draft EIR Section 4.4.1, Environmental Setting, Jurisdictional Wetlands (Page 4.4-2, new text, immediately follows 3rd paragraph):
Descriptions of Waterways
While planned for avoidance with setbacks per terms of the ECCC HCP/NCCP, sites B, D, F, G, I, J, L, M, and R have documented waterways present. Creeks within the Planning Area include Mount Diablo Creek (potentially crosses Sites B, D, I, M, and R), Peacock Creek, Donner Creek (potentially crosses Site I), Mitchell Canyon Creek (potentially crosses F and G), Back Creek, and unnamed creeks waterways (some potentially cross Sites J and L). All creeks within the Planning Area are freshwater systems that are intermittent to ephemeral, being especially dry in the summers. The Suisun Bay Watershed (Hydrological Unit Code 18050001) encapsulates the waters within the Planning Area, with all the waters having connectivity to the Suisun Bay. The unnamed creeks within the City of Clayton may have historical connectivity with one or more of the tributaries within the watershed. Peacock Creek is a tributary of Kirker Creek which stems 3 – Errata
3-2 Final Environmental Impact Report
November 30, 2022
from the north and east of the Planning Area. Mount Diablo Creek branches several times within the Planning Area with forming tributaries including Donner Creek, Mitchell Canyon Creek, Back Creek and some unnamed tributaries within the Planning Area.
Draft EIR Section 4.4.1, Environmental Setting, Table 4.4-1 (Page 4.4-7, Table 4.4-1, between entries for California black rail and Suisun song sparrow):
Lanius
ludovicianus
loggerhead
shrike SSC
Woodlands, savannah,
pinyon-juniper, Joshua
tree, and riparian
woodlands, desert oases,
scrub and washes,
developed urban or
agricultural areas with
trees and open fields.
May be Present. Wetlands
and similar habitats are
known to occur within the
Planning Area that could
support this species.
3 – Errata
Clayton Housing Element Update 3-3
City of Clayton
Draft EIR Section 4.4.1, Environmental Setting, Figure 4.4-1 (Page 4.4-3, Figure 4.4-1): Figure 4.4-1 has been updated with “NWI Wetlands, including Creeks/Streams” based on the request from CDFW. Additionally, the word “Figure” was changed to “Exhibit” in the title. The updated version of this map is provided below. 3 – Errata
3-4 Final Environmental Impact Report
November 30, 2022
Draft EIR Chapter 5, Alternatives
The following changes to Draft EIR Chapter 5 are the result of the inadvertent omission of “Site T” from Alternative 3. Alternative 3 was supposed to include the addition of Sites T, U, and V; however, the Draft EIR only included the addition of Sites U and V. Site T consists of two adjacent parcels on Marsh Creek Road, under common ownership, and totaling 1.45 acres. Site T could support 33 residential dwelling units. Site T was included in the draft Housing Element submitted to the California Department of Housing and Community Development (HCD) and was considered by the public and decision-makers through the public review process for the draft Housing Element. For this Final EIR, the recalculation of total units for Alternative 3 has been revised to account for Site T and adjustments to Sites U and V based on 80 percent of maximum capacity for each site based upon the respective General Plan land use designation. The total unit yield for Alternative 3 under this revised condition is 936 units. This total is below the 966 unit count examined in this EIR. Thus, the inclusion of Site T would not result in any new impacts not already considered in the Alternatives analysis.
The changes to Chapter 5, Alternatives, identified below focus on including Site T in the text of this Chapter.
Draft EIR Section 5.3, Alternatives Selected
(Page 5-3, third bullet point):
• Alternative 3:Reduced Residential Development at Site M and Town Center and Addition of Sites T, U, and V to the Housing Site Inventory
Draft EIR Section 5.3, Alternatives Selected
(Page 5-3, Alternative 3 discussion): Alternative 3 would include the reduced densities encompassed in Alternative 2, with addition of new Sites T, U, and V to the housing inventory.
Additional Site T is located at 6500/6530 Marsh Creek Road, additional Site U is located on a portion of the existing driving range at the Oakhurst Golf Club at 1001 Peacock Creek Drive, and additional Site V is located at 1970 Eagle Peak Avenue. The respective owners of Sites T, U, and V have expressed interest in developing their properties with townhouses at an estimated density of 20 du/ac. The reduction of densities on Site M and the Town Center, with inclusion of Sites T, U, and V into the housing inventory would result in an increase in potential residential development capacity from 868 dwelling units to 966 dwelling units. 3 – Errata
Clayton Housing Element Update 3-5
City of Clayton
Draft EIR Section 5.3, Alternatives Selected
(Page 5-5, Table 5-1):
Impact/Resource
1. No Project--
Existing Housing
Element
Development
Capacity
2. Reduced
Development
Capacity at Site M
and Town Center
Sites
3. Reduced
Residential
Development at
Site M and Town
Center/ Addition of
Sites T, U, and V to
Housing Inventory
Aesthetics Reduced LTS Reduced LTS Similar LTS
Agriculture and
Forestry Resources Similar No Impact Similar No Impact Similar No Impact Air Quality Reduced LTS Reduced LTS Similar LTS
Biological
Resources Similar LTS Similar LTS Similar LTS
Cultural Resources Similar LTS Similar LTS Similar LTS
Energy Reduced LTS Reduced LTS Similar LTS
Geology and Soils Similar LTS Similar LTS Similar LTS
Greenhouse Gas
Emissions Reduced SU Reduced SU Similar SU
Hazards and
Hazardous Materials Similar LTS Similar LTS Similar LTS Hydrology and
Water Quality Similar LTS Similar LTS Similar LTS
Land Use Similar LTS Similar LTS Similar LTS
Mineral Resources Similar No Impact Similar No Impact Similar No Impact Noise Similar LTS Similar LTS Similar LTS
Population and
Housing Reduced LTS Reduced LTS Similar LTS
Public Services Reduced LTS Reduced LTS Similar LTS
Recreation Reduced LTS Reduced LTS Similar LTS
Transportation Reduced SU Reduced SU Similar SU
Tribal Cultural
Resources Similar LTS Similar LTS Similar LTS
Utilities and Service
Systems Reduced LTS Reduced LTS Similar LTS
Wildfire Similar LTS Similar LTS Similar LTS
Source: MIG, 2022
LTS= Less-than-Significant Impacts
SU= Significant and Unavoidable Impacts
3 – Errata
3-6 Final Environmental Impact Report
November 30, 2022
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-13, Alternative 3 analysis title): Alternative 3: Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-13, Alternative 3 discussion): This Alternative assumes that overall residential development associated with the HEU would be increased from 868 dwelling units to 966 dwelling units, an increase in development capacity of approximately 11 percent when compared to the proposed project. This alternative assumes that policies and goals associated with the Housing Element Update would be applicable to development under this alternative. Table 5-1 shows how impacts associated with the implementation of this alternative compared to the impacts associated with implementation of the Reduced Residential Development at Site M and Town Center and Addition of Sites T, U, and V to the Housing Inventory Alternative. The potential impacts associated with the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative are described below.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-13, Aesthetics analysis): a. Aesthetics. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative assumes the amount of development would be increased compared to the project. As with the project, aesthetic impacts are anticipated to be less-than-significant under the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative. Project-specific impacts with respect to scenic vistas were determined to be less than significant. Buildout of proposed housing sites under the Housing Element Update would occur at locations in the City of Clayton that are either already developed or in vacant properties in developed areas. There are no proposed housing sites in undeveloped portions of the Planning Area, and as such, the project would not result in cumulative impacts with respect to scenic vistas. Outdoor lighting is regulated by 15.03.612 (Public Nuisance Lighting) of the City’s Municipal Code. Any new development under this Alternative would be required to undergo design review, which would ensure compliance with regulations and review for potential light and glare. This alternative would result in a similar less-than-significant impact, when compared to the project, despite the increase in development associated with this alternative.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-14, Air Quality analysis): c. Air Quality. As described in Section 4.3, the project would result in a less than significant construction-related air quality impact with mitigation incorporated.
Because the identified potentially significant air quality impacts of the project are related to sitespecific construction activities, similar potentially significant construction impacts from increased development potential under this Alternative would be less than significant with incorporation of mitigation measures. As such, the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would result in similar less than significant impacts with mitigation incorporated as the proposed project. 3 – Errata
Clayton Housing Element Update 3-7
City of Clayton
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-14, Biological Resources analysis): d. Biological Resources. Approximately 33 special status species were determined to “May be Present” within the Planning Area, with potential to occur on at least some of the housing inventory sites. Many of the housing inventory sites are located within or adjacent to streams, riparian woodlands, and/or other suitable habitats that could potentially support these sensitive species, including Sites B, D, F, G, I, J, L, M, Q, R, U, and V.
While field surveys are required to confirm for compliance with the ECCC HCP/NCCP, housing inventory sites located in urban and well-developed areas that are significantly less likely to support most of these species include Sites A, E, H, K, N, O, P, S. While the amount of development under this alternative would be increased, all future projects would be required to adhere to existing regulations regarding nesting birds. Similar to the project, the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would have a similar less-than-significant impact on biological resources.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-14, Cultural Resources analysis): e. Cultural Resources. As with the project, development under the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative could still uncover previously unknown cultural resources or destroy/change structures that could be considered historic.
Therefore, future development under this alternative could have the potential to disturb or destroy sensitive cultural resources. Similar to the project, development projects under this alternative are required to implement cultural resources mitigation for cultural resource monitoring during all ground-disturbing activities. Therefore, similar to the project, this alternative would have a lessthan-significant impact on cultural resources with incorporation of mitigation.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-14, Energy analysis): f. Energy. As with the project, development associated with the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would require the consumption of electricity, natural gas, and vehicle fuel resources to accommodate growth. Development under this alternative would result in increased energy consumption compared to the project; however, it is not likely that the increase would result in the wasteful use of energy or require mitigation to reduce impacts to less than significant. Therefore, this alternative would have a similar less-than-significant energy impact compared to the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-15, Geology and Soils analysis): g. Geology and Soils. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would result in geology and soils impacts similar to those associated with the project, as both the alternative and the project would be exposed to the same existing geologic conditions within the City. As with the project, existing building requirements would be applicable under this alternative. Additionally, all future projects would be required to be designed and constructed in compliance with all applicable City and state codes and requirements. Finally, as with the project, the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would still require future development to implement mitigation measures in order to reduce potential impacts to 3 – Errata
3-8 Final Environmental Impact Report
November 30, 2022
paleontological resources to less than significant. As such, the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would have a similar less-than-significant geology impact as the proposed project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-15, Greenhouse Gas Emissions analysis): h. Greenhouse Gas Emissions. The project would result in a significant unavoidable GHG emissions impact. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would result in an increase in development potential when compared to the project. Given this alternative would result in increased development potential, this alternative would have a greater significant and unavoidable impact as the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-15, Hazards and Hazardous Materials analysis): i. Hazards and Hazardous Materials.
Hazardous materials would be present during construction and operation of development associated with the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative. The amount and use of these chemicals present during construction would be limited, would be in compliance with existing government regulations, and would not be considered a significant hazard. As with the project, any future development under this alternative would be subject to the City’s standard environmental review as well as hazardous materials policies included in the existing General Plan. This alternative would have a less-than-significant hazards and hazardous materials impact and would be considered similar to the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-15, Hydrology analysis): j. Hydrology and Water Quality. Development associated with implementation of the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would be subject to all existing water quality regulations and programs. This alternative assumes a population and development increase that would be less than the project. Similar to the project, this alternative would have a less-than-significant hydrology and water quality impact.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-15, Land Use and Planning analysis): k. Land Use Planning. As with the project, the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the Housing Inventory Alternative would not physically divide an established community.
Development would be consistent with the existing General Plan policies, and would not conflict with regulations adopted to avoid environmental effects. Similar to the project, this alternative would have a less-than-significant land use impact.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-16, Mineral Resources analysis): l. Mineral Resources. Similar to the proposed HEU, no development would take place in any location with known mineral resources or at any known mineral resources extraction site under the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative. As with the project, this alternative would have no impact on mineral resources. 3 – Errata
Clayton Housing Element Update 3-9
City of Clayton
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-16, Noise analysis): m. Noise. The project would result in less than significant construction noise impacts with mitigation incorporated and less than significant operational noise impacts. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative would result in greater potential development when compared to the project. Similar to the project, mitigation measures would be required to ensure that construction noise is mitigated for projects located near sensitive receptors. Due to the increase in development the traffic noise impact would be increased when compared to the project; however, the potential increase in development capacity from this individual site would not be great enough to require mitigation and would still be less than significant. Therefore, this alternative would have a similar less than significant impact to the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-16, Population and Housing analysis): n. Population and Housing. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative would result in increased residential development and population growth relative to the project. However, it would not induce substantial unplanned growth nor would it displace substantial numbers of persons or housing compared to the project. Therefore, this alternative would result in a similar less-than-significant impact related to population and housing when compared to the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-16, Public Services analysis): o. Public Services. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Alternative would result in an increased amount of development and related population and employment growth, which would result in greater demand for public services relative to the project. However, with continued payment of development impact fees to offset incremental growth, this alternative would result in a similar less-than-significant public services impact when compared to the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-16, Recreation analysis): p. Recreation. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative would result in an increased amount of development and associated population growth, which would result in greater demand for recreational facilities relative to the project. However, with continued payment of development impact fees to offset incremental growth, this alternative would result in a similar less-than-significant recreation impact when compared to the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-16, Transportation analysis): q. Transportation. The proposed project would result in significant and unavoidable VMT impacts. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative would result in an increase in residential development and associated VMT relative to the project. Given the increase in residential development associated with this alternative, significant and 3 – Errata
3-10 Final Environmental Impact Report
November 30, 2022
unavoidable transportation impacts of a greater magnitude compared to the project would likely occur under this alternative.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-16, Tribal Cultural Resources analysis): r. Tribal Cultural Resources. As with the project, development under the Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative could uncover previously unknown Tribal Cultural Resources. Compliance with existing regulations regarding burial grounds and consultation with Native American tribes, in addition to mitigation measures requiring cultural resource monitors during all ground-disturbing activities, would ensure that potential impacts would be reduced to less than significant. Similar to the project, this alternative would have a less-than-significant impact on cultural resources with adherence to existing regulations and implementation of mitigation.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-17, Utilities and Service Systems analysis): s. Utilities and Service Systems. The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative would result in an increased amount of development and associated population and employment growth, which would result in greater demand for utilities services compared to the project. However, with continued adherence to existing regulations and implementation of mitigation for water service impacts, this alternative would have a greater but still less-than-significant utilities and service system impact when compared to the project.
Draft EIR Section 5.6, Alternative 3 Analysis
(Page 5-17, Attainment of Project Objectives): The Reduced Residential Development at Site M and Town Center Sites and Addition of Sites T, U, and V to the RHNA Inventory Alternative assumes an 11 percent increase in residential development population growth within the Planning Area, but a similar level of non-residential growth as associated with the project. This alternative assumes HEU goals and policies would be applicable. It would generally meet the following project objectives, similar to the project:
Clayton Housing Element Update 4-1
City of Clayton
4 – PUBLIC CIRCULATION
Availability and Distribution
On March 2, 2022, the City of Clayton as lead agency submitted Notice of Preparation (NOP) of an EIR for the Housing Element Update and related land use and zoning amendments to the State Clearinghouse for distribution to State agencies. The City also distributed the NOP to governmental and non-governmental interested parties identified on the standard notification list maintained by the City of Clayton Community Development Department (See Attachment A). The NOP was circulated for a 34-day public review period from March 2 to April 4, 2022. The NOP was available on the City’s website during the entire NOP public review period.
A virtual Scoping Meeting was held on March 8, 2022, with the City Planning Commission for public agencies and the public to ask questions about the Housing Element Update and provide input as to important issues that should be addressed in the Draft EIR (See Attachment B).
On August 19, 2022, the City distributed Notice of Availability (NOA) of the Draft EIR by first class or electronic mail to public agencies, interested individuals, and other entities on the City’s notification list. The NOA was also filed with the Contra Costa County Clerk’s Office and published in the East County Times on August 19, 2022 (See Attachment C). The NOA was sent to the same public agencies, interested individuals, and entities that received notification of the NOP (See Attachment D), including government agencies, neighboring jurisdictions, and nongovernmental interested parties. The NOA and Notice of Completion (NOC) were both submitted electronically to the State Clearinghouse (SCH) for distribution to State agencies (See Attachment E) and the project was issued SCH #2022030086. The NOA and Draft EIR materials were also available on the City’s website during the entire Draft EIR comment period. Notification was also submitted to local Native American Tribal Governments in accordance with CEQA statutes, guidelines, and Assembly Bill 52 (Gatto, 2014).
Agency Mailing List
State of California
State Clearinghouse
State Department of Housing and Community Development
Department of Transportation, District 4
State Office of Historic Preservation
Native American Heritage Commission
Department of Toxic Substances Control
Department of Fish and Wildlife, Bay Delta Region 3
Contra Costa County
Contra Costa County Department of Conservation and Development Contra Costa County Fire Protection District
Central Contra Costa Sanitary District
Contra Costa Water District
Regional
Regional Water Quality Control Board, San Francisco Bay Region 2 4 – Public Circulation
4-2 Final Environmental Impact Report
November 30, 2022
Association of Bay Area Governments
East Bay Regional Parks District
Contra Costa Local Agency Formation Commission
Bay Area Air Quality Management District, Environmental Planning Division Local Cities
City of Concord Community Development Department
City of Concord Public Works Department
City of Walnut Creek Community Development Department
Transportation
Contra Costa Transportation Authority
Contra Costa Regional Transportation Planning Committee/TRANSPAC Education
Mt. Diablo Unified School District
Utilities/Services
Pacific Gas & Electric
Republic Services
Native American Tribes
Wilton Rancheria
Amah Mutsun Tribal Band of Mission San Juan Bautista
Indian Canyon Mutsun Band of Costanoan
Muwekma Ohlone Indian Tribe of the San Francisco Bay Area North Valley Yokuts Tribe
The Ohlone Indian Tribe
4 – Public Circulation
Clayton Housing Element Update 4-3
City of Clayton
ATTACHMENT A: NOTICE OF PREPARATION
4 – Public Circulation
4-4 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-5
City of Clayton
4 – Public Circulation
4-6 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-7
City of Clayton
4 – Public Circulation
4-8 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-9
City of Clayton
4 – Public Circulation
4-10 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-11
City of Clayton
4 – Public Circulation
Clayton Housing Element Update 4-12
City of Clayton
ATTACHMENT B: SCOPING MEETING MINUTES
4 – Public Circulation
Clayton Housing Element Update 4-13
City of Clayton
4 – Public Circulation
4-14 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-15
City of Clayton
4 – Public Circulation
4-16 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-17
City of Clayton
4 – Public Circulation
4-18 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-19
City of Clayton
4 – Public Circulation
4-20 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-21
City of Clayton
ATTACHMENT C: NOTICE OF AVAILABILITY
4 – Public Circulation
4-22 Final Environmental Impact Report
November 30, 2022
4 – Public Circulation
Clayton Housing Element Update 4-23
City of Clayton
ATTACHMENT D: AGENCY MAILING LIST
4 – Public Circulation
4-24 Final Environmental Impact Report
November 30, 2022
ATTACHMENT E: NOTICE OF COMPLETION
4 – Public Circulation
Clayton Housing Element Update 4-25
City of Clayton
4 – Public Circulation
4-26 Final Environmental Impact Report
November 30, 2022
This Page Intentionally Left Blank.
Clayton Housing Element Update 5-1
City of Clayton
5 – MITIGATION MONITORING AND REPORTING PROGRAM
This Mitigation Monitoring and Reporting Program (MMRP) identifies Mitigation Measures incorporated into the Clayton Housing Element Update Draft EIR. For each Mitigation Measure, the MMRP identifies the significant impact, the related mitigation measure, the implementation entity, the monitoring and verification entity, and timing requirements. 5 – Mitigation Monitoring and Reporting Program
5-2 Final Environmental Impact Report
November 30, 2022
This Page Intentionally Left Blank
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-3
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
AIR QUALITY
Exposure of
Sensitive
Receptors to
Substantial
Pollutant
Concentrations.
MM AIR-1: Implement BAAQMD
Basic Construction Mitigation
Measures. The City shall require new
project development projects to
implement the BAAQMD’s Basic Control
Mitigation Measures to address fugitive
dust emissions that would occur during
earthmoving activities associated with
project construction. These measures
include:
1. All exposed surfaces (e.g., parking
areas, staging areas, soil piles,
graded areas, and unpaved access
roads) shall be watered two times
per day.
2. All haul trucks transporting soil,
sand, or other loose material offsite shall be covered.
3. All visible mud or dirt track-out onto
adjacent public roads shall be
removed using wet power vacuum
street sweepers at least once per
day. The use of dry power
sweeping is prohibited.
4. All vehicle speeds on unpaved
roads shall be limited to 15 miles
per hour.
5. All roadways, driveways, and
sidewalks to be paved shall be
completed as soon as possible.
Building pads shall be laid as soon
Project
Proponent/Applicant
City of
Clayton
Community
Development
and
Engineering
Departments.
Prior to issuance
of grading
permits and
throughout
construction.
5 – Mitigation Monitoring and Reporting Program
5-4 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
as possible after grading unless
seeding or soil binders are used.
6. Idling times shall be minimized
either by shutting equipment off
when not in use or reducing the
maximum idling time to 5 minutes
(as required by the California
airborne toxics control measure
Title 13, Section 2485 of California
Code of Regulations [CCR]). Clear
signage shall be provided for
construction workers at all access
points.
7. All construction equipment shall be
maintained and properly tuned in
accordance with manufacturer’s
specifications. All equipment shall
be checked by a certified mechanic
and determined to be running in
proper condition prior to operation.
8. Post a publicly visible sign with the
telephone number and person to
contact at the City regarding dust
complaints. This person shall
respond and take corrective action
within 48 hours. The Bay Area Air
Quality Management District’s
phone number shall also be visible
to ensure compliance with
applicable regulations.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-5
City of Clayton
Exposure of
Sensitive
Receptors to
Substantial
Pollutant
Concentrations.
MM AIR-2: Prepare Project-level
Construction Emissions Assessment.
The City shall require new projects
requiring discretionary review to include a
quantitative project-level construction
criteria air pollutant and toxic air
contaminant emissions analysis prior to
the start of construction activities that
shows project construction activities
would not exceed BAAQMD project-level
thresholds of significance. The analysis
may rely on BAAQMD construction
screening criteria to demonstrate that a
detailed assessment of criteria air
pollutant and toxic air contaminant
construction emissions is not required for
the project. If the project does not satisfy
all BAAQMD construction screening
criteria, the analysis shall estimate and
compare construction criteria air pollutant
and toxic air contaminant emissions
against the project-level thresholds of
significance maintained by the Bay Area
Air Quality Management District
(BAAQMD) and, if emissions are shown
to be above BAAQMD thresholds, the
implement measure to reduce emissions
below BAAQMD thresholds. Mitigation
measures to reduce emissions could
include, but are not limited to:
• Watering exposes surfaces at a
frequency adequate to maintain a
minimum soil moisture content of 12
percent, as verified by moisture probe
or lab sampling;
• Suspending excavation, grading,
and/or demolition activities when
average wind speeds exceed 20
miles per hour;
Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior to
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
5-6 Final Environmental Impact Report
November 30, 2022
• Selection of specific construction
equipment (e.g., specialized pieces of
equipment with smaller engines or
equipment that will be more efficient
and reduce engine runtime);
• Installing wind breaks that have a
maximum 50 percent air porosity;
• Restoring disturbed areas with
vegetative ground cover as soon as
possible;
• Limiting simultaneous ground-
disturbing activities in the same area
at any one time (e.g., excavation and
grading);
• Scheduling/phasing activities to
reduce the amount of disturbed
surface area at any one time;
• Installing wheel washers to wash
truck and equipment tires prior to
leaving the site;
• Minimizing idling time of diesel-
powered construction equipment to
no more than 2 minutes or the
shortest time interval permitted by
manufacturer’s specifications and
specific working conditions.
• Requiring equipment to use
alternative fuel sources (e.g., electric-
powered and liquefied or compressed
natural gas), meet cleaner emission
standards (e.g., U.S. EPA Tier IV
Final emissions standards for
equipment greater than 50-
horsepower), and/or utilizing added
exhaust devices (e.g., Level 3 Diesel
Particular Filter);
• Requiring that all construction
equipment, diesel trucks, and
generators be equipped with Best
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-7
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
Available Control Technology for
emission reductions of NOx and PM;
• Requiring all contractors use
equipment that meets CARB’s most
recent certification standard for offroad heavy-duty diesel engines; and • Applying coatings with a volatile
organic compound (VOC) that
exceeds the current regulatory
requirements set forth in BAAQMD
regulation 8, Rule 3 (Architectural
Coatings).
Cause
Substantial
Adverse
Cumulative Air
Quality Impacts.
See Mitigation Measures AIR-1 and AIR2, above.Project
Proponent/Applicant
City of
Clayton
Community
Development
and
Engineering
Departments.
Prior to issuance
of grading or
building permits
and throughout
construction.
Prior to
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
5-8 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
CULTURAL RESOURCES
Cause
Substantial
Adverse Change
in the
Significance of an
Archaeological
Resource
MM CUL‐1: Prior to the issuance of a
grading permit, the grading plan shall
include a requirement (via notation)
indicating that if cultural resources, or
human remains are encountered during
site grading or other site work, all such
work shall be halted immediately within
100 feet of the area of discovery and the
contractor shall immediately notify the
City of the discovery. In such case, the
City, at the expense of the project
applicant, shall retain the services of a
qualified archaeologist and/or qualified
tribal monitor for the purpose of
recording, protecting, or curating the
discovery as appropriate. The
archaeologist and/or tribal monitor shall
be required to submit to the City for
review and approval a report of the
findings and method of curation or
protection of the resources. Further
grading or site work within the vicinity of
the discovery, as identified by the
archaeologist and/or tribal monitor, shall
not be allowed until the preceding steps
have been taken.
Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior to issuance
of grading
permits and
throughout
grading or other
land disturbing
activities.
Disturbance of
Human Remains
MM CUL‐2: Pursuant to State Health and
Safety Code Section 7050.5(c) and State
Public Resources Code Section 5097.98,
if human bone or bone of unknown origin
is found during construction, all work shall
stop within 100 feet of the vicinity of the
find, and the Contra Costa County
Project
Proponent/Applicant
City of
Clayton
Community
Development
and
Engineering
Departments.
During grading
and construction.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-9
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
Coroner shall be contacted immediately.
If the remains are determined to be Native
American, the Coroner shall notify the
Native American Heritage Commission
who shall notify the person believed to be
the Most Likely Descendant (MLD). The
MLD shall work with the contractor to
develop a program for re-internment of
the human remains and any associated
artifacts. Additional work shall not take
place in the immediate vicinity of the find,
which shall be identified by the qualified
archaeologist at the applicant’s expense,
until the preceding actions have been
implemented.
GEOLOGY AND SOILS
Directly or
Indirectly Destroy
a Unique
Paleontological
Resources.
MM GEO-1: In the event that fossils or
fossil‐bearing deposits are discovered
during grading or construction of the
Project, excavations within 50 feet of the
find shall be temporarily halted until the
discovery is examined by a qualified
paleontologist, in accordance with the
applicable Society of Vertebrate
Paleontology standards (Standard
Procedures for the Assessment and
Mitigation of adverse Impacts to
Paleontological Resources, Society of
Vertebrate Paleontology, 2010), and
assessed for significance under CEQA.
The applicant shall include a standard
inadvertent discovery clause in every
construction contract to inform
contractors of this requirement. If the find
Project
Proponent/Applicant
City of
Clayton
Community
Development
and
Engineering
Departments.
During grading
and
construction.
5 – Mitigation Monitoring and Reporting Program
5-10 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
is determined to be significant and if
avoidance is not feasible, the
paleontologist shall design and carry out
a data recovery plan consistent with the
Society of Vertebrate Paleontology
standards.
GREENHOUSE GAS EMISSIONS
Generation of
Greenhouse
Gases that May
Have a
Significant Impact
on the
Environment.
MM GHG-1: Prohibit Natural Gas
Plumbing and Appliances in New
Housing Sites. The City shall prohibit
natural gas plumbing and the use of
natural gas appliances such as cook tops,
water heaters, and space heaters in all
new housing site developments. Upon
request by the project developer,
exceptions to this prohibition may be
allowed in the following instances:
• Accessory dwelling units constructed
on a parcel with an existing residential
building with gas infrastructure.
• Newly constructed buildings with a
valid planning entitlement or other
effective development agreement
approved prior to the date of
certification of this EIR.
• It can be demonstrated there is no
commercially available technology
capable of meeting the specific
appliance or building system
application.
Projects subject to the above exceptions
shall provide the necessary infrastructure
City of Clayton City of
Clayton
Community
Development
Department.
Prior
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-11
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
to support future electrification of
appliances and building systems. This
prohibition on natural gas plumbing and
natural gas appliances shall cease if and
when the City adopts a ZNE ordinance
per Mitigation Measure GHG-2.
Generation of
Greenhouse
Gases that May
Have a
Significant Impact
on the
Environment.
MM GHG-2: Consider Adoption of a
Zero Net Energy Ordinance. Within one
year of the adoption of the HEU, the City
shall complete an evaluation on the
feasibility of adopting an ordinance that
amends the City’s Municipal Code to
require all new residential and/or nonresidential development subject to Title 24, Part 6 of the California Building Code
to achieve Zero Net Energy (ZNE)
standards. If the City finds ZNE
technology, programs, and/or other
strategies are feasible and cost-effective,
the City shall adopt a ZNE ordinance as
expeditiously as possible given City
resources. As defined by the California
Energy Commission (CEC), ZNE
standards require the value of the net
energy produced by project renewable
energy resources to equal the value of the
energy consumed annually by the project,
using the CEC’s Time Dependent
Valuation. In the event the City adopts a
ZNE ordinance, Mitigation Measure GHG2 would no longer apply to housing site projects in the City.
City of Clayton City of
Clayton
Community
Development
Department.
Within one year
of adoption of the
Housing Element
Update.
5 – Mitigation Monitoring and Reporting Program
5-12 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
Generation of
Greenhouse
Gases that May
Have a
Significant Impact
on the
Environment.
MM GHG-3: Residential Electric
Vehicle and Bicycle Parking
Requirements. The City shall require
new residential housing sites to comply
with the Tier 2 electric vehicle charging
and bicycle parking requirements in the
latest edition of the California Green
Building Standards Code (CalGreen) in
effect at the time the building permit
application is submitted to the City.
Currently, the 2019 CalGreen code,
Section A4.106.8, Electric Vehicle
Charging for New Construction, and
Section A4.106.9, Bicycle Parking,
require the following measures to
facilitate the future installation and use
of electric vehicle chargers and bicycle
travel:
● New one and two-family dwellings
and townhouses with attached
private garages include a
dedicated 208/240-volt branch
circuit rated at 40 amperes
minimum.
● New multi-family dwellings provide
20 percent of the total number of
parking spaces on a building site be
electric vehicle charging spaces
capable of supporting future
electric vehicle supply equipment.
● New multi-family buildings provide
on-site bicycle parking for at least
one bicycle per every two dwelling
City of Clayton City of
Clayton
Community
Development
Department.
Prior
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-13
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
units, with acceptable parking
facilities conveniently reached from
the street.
Generation of
Greenhouse
Gases that May
Have a
Significant Impact
on the
Environment.
MM GHG-4: Non-Residential Electric
Vehicle and Bicycle Parking
Requirements. The City shall require
new commercial development included
as part of mixed-use housing sites to
comply with the Tier 2 bicycle
accommodations, clean air vehicle
parking, and electric vehicle charging
requirements in the latest edition of the
California Green Building Standards
Code (CalGreen) in effect at the time
the building permit application is
submitted to the City. Currently, the
2019 CalGreen code, Section
A5.106.4.3, Changing Rooms, Section
A5.106.5.1, Designated Parking for
Clean Air Vehicles, and Section
A5.106.5.3, Electric Vehicle Charging,
require the following measures to
facilitate bicycle travel, clean air
vehicles, and the future installation and
use of electric vehicle chargers:
● Non-residential buildings with more
than 10 tenant-occupants provide
changing/shower facilities for
tenant-occupants in accordance
with Table A5.106.4.3 of the
CalGreen code.
● Non-residential development
involving the installation, addition,
City of Clayton City of
Clayton
Community
Development
Department.
Prior to
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
5-14 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
or alteration of 10 or more vehicular
parking spaces provide designated
parking for any combination of lowemitting, fuel-efficient, and carpool/van pool vehicles pursuant
to Table A5.106.5.1.2 of the
CalGreen code.
● Non-residential development shall
provide electric vehicle charging
spaces capable of supporting
electric vehicle supply equipment
pursuant to Table A5.106.5.3.2 of
the CalGreen code.
Generation of
Greenhouse
Gases that May
Have a
Significant Impact
on the
Environment.
MM GHG-5: Require a Project-level
Greenhouse Gas Emissions
Assessment for Housing Site Projects.
The City shall require development
projects that are determined not to be
categorically exempt from CEQA, and
that require the quantitative VMT
assessment required by Mitigation
Measure VMT-1, to submit a project-level
greenhouse gas (GHG) emissions
analysis. The GHG emissions analysis
shall evaluate the project’s consistency
with adopted state-wide GHG emissions
reduction goals using the latest guidance
and recommendations from the Bay Area
Air Quality Management District, or
another accepted methodology. If the
project’s GHG emissions could interfere
with state-wide GHG emission reduction
goals, mitigation shall be identified and
implemented to reduce emissions.
Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior to
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-15
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
Mitigation measures to reduce GHG
emissions could include, but are not
limited to:
● Increasing the energy efficiency of
the proposed building(s) (e.g.,
identifying building practices that go
beyond CalGreen Code standards,
identifying specific energy efficient
appliances, etc.);
● Incorporating on-site renewable
energy generation into projectdesign;
● Reducing the quantity of parking
provided by the proposed
development;
● Reducing indoor and outdoor potable
water consumption; and
● Increasing solid waste diversion
rates.
Conflict with an
Applicable Plan,
Policy or
Regulation
Adopted for the
Purpose of
Reducing the
Emissions of
Greenhouse
Gases
See Mitigation Measures GHG-1
through GHG-5, above.
City of Clayton
Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior to issuance
of construction
permits.
Prior
discretionary
project approval.
Cause
Substantial
Adverse Impacts
See Mitigation Measures GHG-1
through GHG-5, above.
City of Clayton City of
Clayton
Community
Prior to issuance
of construction
permits.
5 – Mitigation Monitoring and Reporting Program
5-16 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
with Respect to
Greenhouse Gas
Emissions
Project
Proponent/Applicant
Development
Department. Prior
discretionary
project approval.
HAZARDS AND HAZARDOUS MATERIALS
Exposure of
People or
Structures to
Wildfire.
MM HAZ-1: The City shall determine if it
will prepare an update to its Local Hazard
Mitigation Plan (LHMP) or cooperate with
Contra Costa County in an update to its
Emergency Operations Plan (EOP). This
update must address the evacuation
planning and coordination directives
outlined in SB 99 and AB 747 as they
apply to the City. The selected update
shall address areas of the City or its
Planning Area that have high fire risks
and identify adequate evacuation routes
with ongoing maintenance needs and
operational and public education needs to
support use of these routes during
emergency conditions. The City shall
decide which document update is most
appropriate for the City within 90 days of
adoption of the HEU.
City of Clayton
Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Within 90 days of
the adoption of
the Housing
Element Update.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-17
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
NOISE
Exposure to
Noise Levels in
Excess of
Standards.
MM NOI-1: Reduce Potential Housing
Site Development Construction Noise
Levels. To reduce potential noise levels
from construction activities pursuant to
the HEU, the City shall require that future
development projects subject to
discretionary approval comply with the
following:
1)Notify Residential and Commercial
Land Uses of Planned Construction
Activities. This notice shall be provided at
least one week prior to the start of any
construction activities, describe the noise
control measures to be implemented by
the Project, and include the name and
phone number of the designated contact
for the Applicant/project representative
and the City of Clayton responsible for
handling construction-related noise
complaints (per Section 7). This notice
shall be provided to:
A) The owner/occupants of residential
dwelling units within 500 feet of
construction work areas; and
B) The owner/occupants of commercial
buildings (including institutional
buildings) within 100 feet of work areas
or within 400 feet of construction work
areas if pile driving equipment will be
used.
2)Restrict Work Hours. Constructionrelated work activities, including material Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior to
discretionary
project approval
(Include as
project
conditions of
approval).
Preparation and
City signoff on
Construction
Noise Plan prior
to issuance of
grading permits.
5 – Mitigation Monitoring and Reporting Program
5-18 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
deliveries, shall be subject to the
requirements of City Municipal Code
Section 15.01.101. Construction
activities, including deliveries, shall occur
only during the hours of 7:00 a.m. to 5:00
p.m., Monday through Friday, unless
otherwise authorized in writing by the City
Engineer or designee or other project
conditions of approval. If such
authorization is granted, constructionrelated work activities shall still conform to the requirements of General Plan Policy
3b., which limits construction activities to
the hours 7:00 a.m. to 5:30 p.m. on
weekdays and 9:00 a.m. to 6:00 p.m. on
weekends when adjacent neighbors are
affected. The applicant/project
representative and/or its contractor shall
post a sign at all entrances to the
construction site informing contractors,
subcontractors, construction workers, etc.
of this requirement.
3)Control Construction Traffic and Site
Access. Construction traffic, including soil
and debris hauling, shall follow Citydesignated truck routes and shall avoid local roads in the City that contain
residential dwelling units as much as
possible unless an alternative route that
provides access to the specific project
location is not available.
4)Construction Equipment Selection,
Use, and Noise Control Measures. The
following measures shall apply to
construction equipment used to develop
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-19
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
housing sites:
A)Contractors shall use the smallest
size equipment capable of safely
completing work activities.
B)Construction staging shall occur as
far away from residential and
commercial land uses as possible.
C) All stationary noise-generating
equipment such as pumps,
compressors, and welding machines
shall be shielded and located as far
from sensitive receptor locations as
practical. Shielding may consist of
existing vacant structures or a three- or
four-sided enclosure provide the
structure/barrier breaks the line of sight
between the equipment and the
receptor and provides for proper
ventilation and equipment operations.
D) Heavy equipment engines shall be
equipped with standard noise
suppression devices such as mufflers,
engine covers, and engine/mechanical
isolators, mounts, etc. These devices
shall be maintained in accordance with
manufacturer’s recommendations
during active construction activities.
E) Pneumatic tools shall include a
noise suppression device on the
compressed air exhaust.
F) The applicant/project representative
and/or their contractor shall connect to
existing electrical service at the site to
avoid the use of stationary power
generators unless electrical service is
5 – Mitigation Monitoring and Reporting Program
5-20 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
not available or the electricity provider
indicates service cannot be provided.
G)No radios or other amplified sound
devices shall be audible beyond the
property line of the construction site.
6)Implement Construction Activity Noise
Control Measures: The following
measures shall apply to construction
activities in the Plan Area:
A) Demolition: Activities shall be
sequenced to take advantage of
existing shielding/noise reduction
provided by existing buildings or parts
of buildings, and methods that minimize
noise and vibration, such as sawing
concrete blocks and prohibiting on-site
hydraulic breakers, crushing, or other
pulverization activities, shall be
employed when activities occur
adjacent to sensitive residential areas.
B) Demolition Site Preparation,
Grading, and Foundation Work: During
all demolition, site preparation, grading,
and structure foundation work activities
within 500 feet of a residential dwelling
unit or 400 feet of a commercial building
(including institutional buildings), a 6-
foot tall physical noise barrier shall be
installed and maintained around the
work site perimeter to the maximum
extent feasible given site constraints
and access requirements. Physical
barriers shall consist of a solid material
(i.e., free of openings or gaps other than
weep holes) that has a minimum rated
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-21
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
transmission loss value of 20 dB. The
noise barrier may be removed following
the completion of building foundation
work (i.e., it is not necessary once
framing and typical vertical building
construction begins provided no other
grading, foundation, etc. work is still
occurring on-site).
C) Pile Driving: If pile driving activities
are required within 500 feet of a
residential dwelling unit or 400 feet of a
commercial building, the piles shall be
pre-drilled with an auger to minimize
pile driving equipment run times.
7)Prepare a Construction Noise
Complaint Plan. The Construction Noise
Complaint Plan shall: A) Identify the name
and/or title and contact information
(including phone number and email) for a
designated project and City
representative responsible for addressing
construction-related noise issues; B)
Includes procedures describing how the
designated project representative will
receive, respond, and resolve
construction noise complaints; C) At a
minimum, upon receipt of a noise
complaint, the project representative shall
notify the City contact, identify the noise
source generating the complaint,
determine the cause of the complaint, and
take steps to resolve the complaint; D)
The elements of the Construction Noise
Complaint Plan may be included in the
project-specific noise evaluation prepared
5 – Mitigation Monitoring and Reporting Program
5-22 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
to satisfy Section 7 or as a separate
document.
Cause a
Substantial
Adverse
Cumulative
Impact with
Respect to Noise.
See Mitigation Measure NOI-1, above. Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior to
discretionary
project approval
(Include as
project
conditions of
approval).
Preparation and
City signoff on
Construction
Noise Plan prior
to issuance of
grading permits.
TRANSPORTATION
Conflict or Be
Inconsistent with
CEQA Guidelines
section 15064.3,
Subdivision (b)..
Cause a
Substantial
Adverse
Cumulative
Impact with
VMT-1: The Project shall implement the
following VMT Reduction Measures:
• Individual housing project
development proposals that do not
screen out from VMT impact analysis
shall provide a quantitative VMT
analysis using the methods applied in
this EIR, with modifications if
appropriate based on future changes
to City of Clayton practices and CCTA
Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-23
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
Respect to
Transportation.
VMT analysis methodology
guidelines. Projects which result in a
significant impact shall include travel
demand management measures and
physical measures to reduce VMT,
including, but not limited to, the
measures below, which have been
identified as potentially VMT reducing
in the California Air Pollution Control
Officers Association (CAPCOA)
Handbook for Analyzing Greenhouse
Gas Emission Reductions, Assessing
Climate Vulnerabilities, and
Advancing Health and Equity
(December 2021). Project developers
may substitute any of the measures
listed below with one or more
alternative measures; provided, that
any substitute measures would
reduce GHG from VMT in an amount
that is equal to or greater than the
reduction achieved by the measure
being replaced, and the amount of the
reduction is supported by evidence.
Potential VMT reduction estimates
are included below, but detailed
requirements, calculation steps, and
limitations are described in the
CAPCOA Handbook. In addition,
application of one or more of the
measures below is generally
expected to result in a net VMT
reduction of 10 percent or less for
development projects in suburban
settings such as Clayton:
5 – Mitigation Monitoring and Reporting Program
5-24 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
o Unbundle parking costs (i.e., sell
or lease parking separately from
the housing unit). Effectiveness:
up to 15.7 percent reduction in
GHG from VMT per the CAPCOA
Handbook.
o Provide car-sharing, bike sharing,
or scooter sharing programs.
Effectiveness: 0.15 – 0.18 percent
reduction in GHG from VMT for car
share, 0.02 – 0.06 percent for bike
share, and 0.07 percent for
scooter share, per the CAPCOA
Handbook. The higher car share
and bike share values are for
electric car and bike share
programs.
o Subsidize transit passes for
residents of affordable housing.
Effectiveness: up to 5.5 percent
reduction in GHG from VMT per
the CAPCOA Handbook.
Cause a
Substantial
Adverse
Cumulative
Impact with
Respect to
Transportation.
See Mitigation Measure VMT-1, above. Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-25
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
UTILITIES AND SERVICE SYSTEMS
Relocation or
Construction of
New or Expanded
Water,
Wastewater
Treatment,
Stormwater
Drainage, Electric
Power, Natural
Gas, or
Communications
Facilities.
MM UTL-1: Water Demand
Management. Prior to receiving
entitlements for new residential
development under the Housing Element
Update, project applicants must contact
the CCCWD and obtain confirmation that
adequate water service can be provided
and adequate water supplies are
available consistent with their latest
Urban Water Management Plan. If the
CCCWD indicates it cannot guarantee
water supplies for the new development,
or the project involves an increase over
planned development (i.e., General Plan
Amendment or Rezoning) to a use or
uses that would consume more water
than under the current General Plan and
zoning, then the development must
implement one or more of the following
water conservation measures to the
degree necessary to achieve the level of
water use that would have occurred under
the current General Plan and/or zoning
designation(s):
• Install appliances and plumbing that
exceed current State Green Building
Code water conservation
requirements (i.e., those “current” at
the time of application). Examples
include but are not limited to low or
dual flush toilets, composting toilets,
high efficiency washing machines,
Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
5-26 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
shower timers, low-flow faucet and
shower aerators, insulate water
pipes, etc.;
• Prohibit installation of a swimming
pool or allow only a spa;
• Prohibit installation of waterconsuming landscape features (fountains, ponds, etc.);
• Prohibit installation of turf and
promote individual gardens;
• Install all hardscape or all xeriscape
(drought-tolerant) plants;
• Install only highly efficient drip
irrigation systems - do not allow
installation of any overhead sprayers
or aerial sprinkler systems;
• Install rain barrels or other rain
storage systems to reduce demand
on domestic water needed for
landscaping;
• Evaluate feasibility of installing grey
water collection and recycling
system, and install the system if
feasible; and
• For a General Plan Amendment or
Rezoning, the project must
demonstrate that it would exceed
state and/or regional water
conservation requirements sufficient
to achieve water use that would have
occurred under the existing land use
and zoning designations.
5 – Mitigation Monitoring and Reporting Program
Clayton Housing Element Update 5-27
City of Clayton
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
Projects are not limited to this list but can
recommend additional improvements or
systems as appropriate to maximize
water conservation. A project must
identify the water conservation measures
to be implemented with the project prior to
entitlement and must demonstrate full
compliance with this measure, including
installation of specified improvements,
prior to receiving a certificate of
occupancy. This measure shall be
implemented to the satisfaction of the City
Planning Department.
Have Sufficient
Water Supplies
Available to
Serve the Project
and Reasonably
Foreseeable
Future
Development.
See Mitigation Measure UTL-1, above. Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior
discretionary
project approval.
Cause a
Substantial
Adverse
Cumulative
Impact with
Respect to
Utilities and
Service Systems.
See Mitigation Measure UTL-1, above. Project
Proponent/Applicant
City of
Clayton
Community
Development
Department.
Prior
discretionary
project approval.
5 – Mitigation Monitoring and Reporting Program
5-28 Final Environmental Impact Report
November 30, 2022
IDENTIFIED
IMPACT
RELATED MITIGATION MEASURE
MONITORING VERIFICATION
Implementation
Entity
Monitoring
and
Verification
Entity
Timing
Requirements Signature Date
WILDFIRE
Exposure of
Project
Occupants to
Pollutant
Concentrations
from a Wildfire.
MM HAZ-1: The City shall determine if it
will prepare an update to its Local Hazard
Mitigation Plan (LHMP) or cooperate with
Contra Costa County in an update to its
Emergency Operations Plan (EOP). This
update must address the evacuation
planning and coordination directives
outlined in SB 99 and AB 747 as they
apply to the City. The selected update
shall address areas of the City or its
Planning Area that have high fire risks
and identify adequate evacuation routes
with ongoing maintenance needs and
operational and public education needs to
support use of these routes during
emergency conditions. The City shall
decide which document update is most
appropriate for the City within 90 days of
adoption of the HEU.
City of Clayton City of
Clayton
Community
Development
Department.
Within 90 days of
adoption of the
HEU.
6th Cycle Housing Element Update and Related Land Use Element Amendments, and Certification of Final EIR
City Council Meeting, January 17, 2023
Attachment 3
Draft EIR:
https://claytonca.gov/fc/communitydevelopment/housing/housingelement/DEIR_Clayton_6thCycle_Housi ngElement.pdf
Draft EIR Appendices:
https://claytonca.gov/fc/communitydevelopment/housing/housingelement/DEIR_Appendices_Clayton_6th Cycle_HousingElement.pdf
6th Cycle Housing Element Update and Related Land Use Element Amendments, and Certification of Final EIR
City Council Meeting, January 17, 2023
Attachment 4
Planning Commission
Resolution No. 04-2022
Planning Commission
Resolution No. 04-2022 Page 1 of 8
CITY OF CLAYTON
PLANNING COMMISSION
RESOLUTION NO. 04-2022
A RESOLUTION OF THE CLAYTON PLANNING COMMISSION RECOMMENDING
THAT THE CITY COUNCIL AMEND THE HOUSING ELEMENT OF THE CLAYTON GENERAL PLAN FOR THE SIXTH HOUSING CYCLE (2023-2031) AND ADOPT
CORRESPONDING AMENDMENTS TO THE LAND USE ELEMENT TEXT AND
LAND USE DIAGRAM OF THE CLAYTON GENERAL PLAN, AND RECOMMENDING
THAT THE CITY COUNCIL CERTIFY THE FINAL ENVIRONMENTAL IMPACT
REPORT PREPARED FOR THE PROJECT
WHEREAS, pursuant to California Government Code sections 65300 and 65300.5, each planning agency of each California city or county is required to adopt a comprehensive, integrated, internally consistent and long-term general plan for “the physical development of the county or city, and of any land outside its boundaries which in the planning agency’s judgment bears relation to is planning;” and WHEREAS, pursuant to Government Code sections 65302 and 65303, the general plan must include a land use element, a circulation element, a housing element, a conservation element, an open space element, a noise element, a safety element and an environmental justice element, and it may include any other elements that, in the judgment of the city or county’s legislative body, relate to the physical development of the jurisdiction; and
WHEREAS, in accordance with Government Code section 65358, the City Council of the City of Clayton (City), on recommendation from the City’s Planning Commission, may amend all or part of the City’s General Plan if the City Council deems the amendment to be in the public interest; and
WHEREAS, on March 22, 2021, and pursuant to Government Code section 65588(e)(3), the City Council identified the Clayton General Plan Housing Element update as one of its goals for the 2021/2022 fiscal year, and subsequently, on May 18, 2021, the City Council awarded a professional services agreement to a consulting firm to work with City staff to prepare the amendment of the Clayton General Plan Housing Element for the 6th housing cycle encompassing years 2023-2031; and
WHEREAS, following one virtual community workshop, a voluntary online preferences survey, a voluntary online housing planning simulation, various stakeholder interviews, and three public study sessions held during Planning Commission or City Council meetings between May 2021 and March 2022, the City released the Public Review Draft Housing Element for the 6th Housing Cycle (May 2022) for public comment between the dates of May 20 and June 20, 2022 (Government Code section 65585), and during the public comment period, held two additional study sessions with the Planning Planning Commission
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Commission and two additional study sessions with the City Council to receive public comment on the draft document; and
WHEREAS, the City addressed comments received from the community and decision-makers during the 30-day review period on the Public Review Draft Housing Element for the 6th Housing Cycle (May 2022) as revisions to the document that were incorporated into the subsequently produced HCD Review Draft Housing Element for the 6th Housing Cycle (July 2022); and
WHEREAS, in accordance with Government Code section 65585, the City submitted the HCD Review Draft Housing Element for the 6th Housing Cycle (July 2022) to the State Department of Housing and Community Development (HCD) electronically on July 14, 2022, followed by a print copy delivered to HCD on July 19, 2022; and WHEREAS, on October 12, 2022, staff of the HCD issued a letter documenting their review of and comments on the HCD Review Draft Housing Element for the 6th Housing Cycle (July 2022) and finding that although “[T]he draft element addresses many statutory requirements; … revisions will be necessary to comply with State Housing Element Law (Article 10.6 of the Gov. Code);” and
WHEREAS, the City revised the draft Housing Element to address the comments provided by HCD in their October 12, 2022, review letter and produced an Adoption Draft Housing Element for the 6th Housing Cycle (December 2022); and WHEREAS, the Adoption Draft Housing Element for the 6th Housing Cycle (December 2022) meets the requirements of State law contained in Government Code title 7, division 1, chapter 3, article 10.6 (Housing Elements) and identifies in proposed Program D-2 corresponding amendments to the Land Use Element of the City’s General Plan to ensure internal consistency among the goals, policies and objectives of the elements of the General Plan; and
WHEREAS, in accordance with section 21151 of the California Environmental Quality Act (CEQA; Public Resources Code section 21000 et seq.), a Draft Environmental Impact Report (EIR; State Clearinghouse No. 2022030086) was prepared by a consultant under contract to the City of Clayton, to analyze the potential impacts to the environment that could occur as a result of adoption of amendments to the Housing and Land Use Elements of the City of Clayton General Plan; and
WHEREAS, in accordance with sections 15105(a), 15206 and 15166 of the State CEQA Guidelines (California Code of Regulations section 15000 et seq.), copies of the Draft EIR for the Housing and Land Use Element amendments were circulated to State agencies via the State Clearinghouse, and were made available online on the City’s website and in hard copy at Clayton City Hall and the Clayton Community Library, for an agency and public comment period that started on August 19, 2022 and that ended on October 3, 2022. Opportunity for the public to give spoken comments on the Draft EIR was provided during the regular Planning Commission meeting held on September 13, 2022. On or prior to August 19, 2022, notice of availability of the Draft EIR and of the Planning Commission
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public comment meeting was provided in accordance with State CEQA Guidelines section 15087 and included filing of the notice with the County Clerk; mailing by first class or electronic mail to interested parties and other public agencies and utilities providers; posting on three City notice boards at City Hall, the Clayton Community Library, and in the Clayton Town Center; publishing in the East Bay Times; and posting to the City website; and
WHEREAS, written responses to comments received during the public review period on the Draft EIR have been incorporated into a Final EIR, which consists of the Draft EIR, public and agency comments received on the Draft EIR, responses to those comments, and required clarifications and changes to the text of the Draft EIR (State CEQA Guidelines sections 15088 and 15132); and
WHEREAS, the Clayton City Council is the decision-making body with respect to amendments to the General Plan and must certify as to the adequacy of the Final EIR prior to making a decision to adopt the proposed General Plan amendments (CEQA Guidelines section 15090 and 15356); however, the Planning Commission, in its capacity as an advisory body to the City Council, must consider the information in the Final EIR prior to making a recommendation on the proposed General Plan amendments; and WHEREAS, Government Code sections 65351 and 65352 obligate the local planning agency to provide opportunities for citizens, Native American tribes, other public agencies, public utility companies, and civic, education and other community groups to be involved in amendments to the jurisdiction’s general plan, through public hearings and any other means the planning agency deems appropriate, and to that end, the City conducted four discussion sessions at Clayton City Council meetings, four discission sessions at Clayton Planning Commission meetings, a virtual community workshop, two online surveys to solicit input on community housing preferences, various individual interviews with stakeholders, virtual outreach through the City website and online community forums, and distributed informational doorhangers to each residence in the City to invite community input into the Housing Element update process; and WHEREAS, in accordance with Government Code section 65352.3, on April 20, 2022, the City sent to seven local Native American tribes, invitations to consult on the proposed Housing Element update, and subsequently received one response from a tribal representative of the Confederated Villages of Lisjan Nation, who requested copies of the documentation for the Housing Element update. In response, the City directed the tribal representatives to the City webpage where the draft Housing Element and its related documents had been posted. The City did not receive any other or subsequent requests for information or consultation within the 90 days following the April 20, 2022 invitation to consult; and
WHEREAS, Clayton Municipal Code (CMC) chapter 2.12 establishes a Planning Commission for the City of Clayton, and Government Code sections 65353 and 65354 authorize the Planning Commission to make recommendations to the City Council on proposed amendments to the City’s General Plan, after the Commission conducts at least one public hearing on the matter; and
Planning Commission
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WHEREAS, in accordance with Government Code sections 65353, 65090 and 65091, on or prior to December 3, 2022, notice of the Clayton Planning Commission public hearing to consider the amendment to the General Plan Housing Element for the 6th Housing Cycle and corresponding amendments to the General Plan Land Use Element and Land Use Diagram was published as a one-eighth page ad in the East Bay Times; was posted to the notice boards at Clayton City Hall and Clayton Community Library, and to Ohm’s board in the Town Center; and was virtually posted to the Housing Element webpage accessible via the main City homepage at www.claytonca.gov. Notice of the public hearing was also mailed electronically or via first class mail to interested parties who had requested such notice and to owners of property that were the subject of proposed General Plan land use map amendments, as well as, to other public agencies, special districts, public utility companies, local school districts, responsible agencies as defined CEQA, and local Native American tribes on the contact list maintained by the Native American Heritage Commission; and
WHEREAS, on December 13, 2022, the Clayton Planning Commission held a public hearing on the amendment to the General Plan Housing Element for the 6th Housing Cycle and corresponding amendments to the General Plan Land Use Element and Land Use Diagram and received and considered testimony and evidence, both spoken and written.
NOW, THEREFORE, the Planning Commission hereby determines the foregoing recitals to be true and correct and makes the following findings:
A. The Final EIR prepared for the Housing Element Update and related Land Use Element amendments (State Clearinghouse No. 2022030086) was prepared in accordance with the requirements of CEQA, and the Planning Commission has considered the information contained therein.
B. The amendment to the City of Clayton Housing Element for the 6th Housing Cycle is in the public interest.
1. The Housing Element amendment identifies constraints to the construction and improvement of housing in the City, and it identifies programs and policies to remove those constraints. Implementation of these policies and programs would streamline existing zoning approval processes, reducing the number of discretionary decisions that are currently required while maintaining objective standards that would help to preserve aesthetic characteristics of the City. Implementation of these policies and programs would also reduce costs of planning, permitting and construction for new home developers as well as for current homeowners who want to invest in improvement of their properties through expansions of their existing home or construction of accessory and second dwelling units. (Goal 1 and Goal 4 and attendant programs and policies)
2. The goals, policies and programs in the Housing Element amendment would foster a broader range of housing densities than City land use policy Planning Commission
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currently provides, allowing opportunities for increased diversity in housing types (single-family and multifamily) and tenures (rental and ownership).
Greater diversity in the City’s housing stock would facilitate greater equity and fair access to housing choices for future residents, while also providing smaller unit sizes that are more affordable, more energy efficient and more accessible for recent graduates, young adult children and aging parents who currently live in Clayton and want to remain in the community.
Expanded housing choices also facilitate more opportunities for special needs households as well as employees of the local service-based and public sector workforce to reside in the community, thereby reducing workers’ and their customers’ transportation costs, traffic congestion and automobile pollution emissions generated by vehicle trips to work from outside the City. (Goals 2, 3, 5 and 6 and attendant programs and policies) C. The amendment to the City of Clayton Housing Element for the 6th Housing Cycle is compliant with State law and contains all statutorily-required components as prescribed in Government Code section 65583.
1. Chapter 3 (Housing Needs Assessment), Chapter 5 (Housing Resources) and Chapter 4 (Constraints Analysis) of the Housing Element amendment contain an assessment of (respectively) housing needs, housing resources and constraints to meeting the City’s projected housing needs. Population and employment trends in the City, description of the City’s existing housing stock, and assessment of existing household characteristics (including ability to pay for housing) are identified in Chapter 3. This analysis in Chapter 3 precedes discussion of the City’s projected housing need for all income levels as encompassed within its regional housing needs allocation (RHNA). (Government Code section 65583, subdivision (a)(1) and (a)(2))
2. Chapter 5 (Housing Resources) contains an inventory of land suitable and with potential for residential development that is vacant and zoned for residences; vacant and zoned for nonresidential use with residential development; and residentially-zoned sites capable of being redeveloped with higher residential densities. Table 5-12 in Chapter 5 lists each potential housing opportunity site, each site’s maximum and realistic development potential, potential infrastructure constraints and existing development, and a brief explanation of rationale, such as land value or property owner interest, for including the site in the inventory. On page 5-15 of the Adoption Draft Housing Element Update for the 6th Housing Cycle (December 2022), the relationship between the sites inventory and affirmatively furthering fair housing is described as positive, due to the distribution of all of the sites in high resource areas of the City, as the entirety of the City is considered to be high resource. (Government Code section 65583, subdivision (a)(3), and section 65583.2)
3. The selection of sites included in the inventory of 22 potential housing opportunities includes 14 sites that are currently developed with religious Planning Commission
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institutions, parking lots, private recreation (golf course driving range), lowintensity commercial buildings, or existing very low-density residential land use. Over 50 percent of the City’s RHNA of low and very-low income units is identified on nonvacant sites. The analysis in Chapter 5 of the draft Housing Element includes discussion of the viability of these sites for redevelopment as housing, including building to land value ratios of 0.56 or lower; recent approval of multifamily and single-family housing on similarlysized and located properties in the City; and interest expressed by property owners in the redevelopment of portions of their properties for housing. The analysis in the draft Housing Element provides adequate justification that nonvacant sites could reasonably be redeveloped with housing during the 6th housing cycle, and the Planning Commission finds that the existing land uses on these non-vacant sites do not constitute an impediment to the addition of housing on the nonvacant sites or redevelopment of the nonvacant sites with housing during the period covered by the Housing Element Update. (Government Code section 65583.2(g)).
4. Chapter 4 (Constraints Analysis), page 4-7 of the Adoption Draft Housing Element Update for the 6th Housing Cycle (December 2022), identifies that existing zoning regulations adopted in 2013 allow emergency shelters as a permitted use the PF (Public Facility) District, and describes the existing objective development and management standards applicable to this type of land use. (Government Code section 65583, subdivision (a)(4))
5. Chapter 4 (Constraints Analysis) includes an assessment of existing governmental constraints upon the maintenance, improvement, or development of housing for various physical abilities and for all income levels as projected in the City’s RHNA. The text describes existing development regulations that are adopted in the City’s Zoning Ordinance and two Specific Plans and that are applicable to various residential development types. Residential permitting processes, infrastructure needs, building and nuisance codes, and fees are also described. Where a regulation, process, standard, code requirement or fee is identified as constraining residential development, the text in Chapter 4 identifies the necessary code amendment or process improvement that would remove the constraint. Text in Chapter 2 (Housing Plan) formalizes the necessary code amendment or process improvement in a program in the Housing Element. (Government Code section 65583, subdivision (a)(6))
6. Chapter 4 (Constraints Analysis) also includes an assessment of nongovernmental constraints on the construction of housing, recognizing that while the City’s ability to provide direct financial support for construction of affordable housing was drastically reduced after State legislation eliminating redevelopment agencies, the City can continue to offer other incentives, including density bonuses, priority permit processing, fee waivers or deferrals and modifications to development standards to support Planning Commission
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construction of a variety of housing types. (Government Code section 65583, subdivision (a)(6))
7. Chapter 3 (Housing Needs Assessment) describes those members of the community with special housing needs, including persons with physical or developmental challenges, over 65 years in age, living in large households of five or more residents, employed as farmworkers, residing in femaleheaded households, or experiencing homelessness. Chapter 3 also describes energy conservation opportunities for residential development in the City (Government Code section 65583, subdivisions (a)(7) and (a)(8)).
8. Chapter 3 (Housing Needs Assessment) lists the current housing units in the City that are eligible for conversion from deed-restricted affordable to market rate during the 6th housing cycle, as well as potential options, including possible State and federal funding sources, for preservation or replacement of the affordable units that could convert to market rate. (Government Code section 65583, subdivision (a)(9))
9. Chapter 7 (Affirmatively Furthering Fair Housing) describes the fair housing issues in the City and region, and more specifically, historic patterns of segregation, racially or ethnically concentrated areas of affluence, demographic trends, and disparities in housing needs and housing opportunities, in Clayton and in Clayton as compared to proximate jurisdictions in central and eastern Contra Costa County as well as the County as a whole. With a basis in the analysis in Chapter 7, Chapter 2 (Housing Plan) lists all of the goals, policies and programs that describe the actions that the City commits to taking to affirmatively further fair housing for all persons regardless of household income level or any protected status; to ensure maintenance, preservation, improvement and development of housing in the City; to assist in development of housing opportunities for all income levels; to remove government and nongovernmental constraints to housing development; and to foster construction of accessory dwelling units (ADUs) under the City’s developing pre-approved ADU plan program and other site-specific plan permit requests. Where a program has a specific and discreet timeline for performance (such as rezoning to accommodate the City’s RHNA), the timeline is specified with the program, while programs (such as code enforcement or priority permit processing for applicable development applications) that are to be implemented as needed throughout the housing cycle are indicated as ongoing. A summary of the City’s quantified objectives with respect to its RHNA is provided at the end of the chapter in Table 2-1. (Government Code section 65583, subdivisions (b) and (c)) D. The amendments to the City of Clayton General Plan Land Use Element and its Land Use Diagram are in the public interest. The amendments to the Land Use Element ensure internal consistency with the City’s General Plan and constitute the first step in implementation of the overall objectives of the Housing Element,
Exhibits A, B and C to Resolution No. 04-2022
can be viewed online:
https://claytonca.gov/fc/community-development/
housing/housing-element/
6th Cycle Housing Element Update and Related Land Use Element Amendments, and Certification of Final EIR
City Council Meeting, January 17, 2023
Attachment 5
HCD Comment Letter with Annotated
MIG/City Staff Comments
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
October 12, 2022
Dana Ayers, Director
Community Development Department
City of Clayton
6000 Heritage Trail
Clayton, CA 94517
Dear Dana Ayers:
RE: City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Thank you for submitting the City of Clayton’s (City) draft housing element received for review on July 14, 2022. Pursuant to Government Code section 65585, subdivision (b), the California Department of Housing and Community Development (HCD) is reporting the results of its review. Our review was facilitated by a conversation on October 7, 2022 with you and your consultants Reina Schwartz and Laura Stetson. In addition, HCD considered comments from East Bay For Everyone, East Bay YIMBY, Greenbelt Alliance, YIMBY Law, South Bay YIMBY pursuant to Government Code section 65585, subdivision (c).
The draft element addresses many statutory requirements; however, revisions will be necessary to comply with State Housing Element Law (Article 10.6 of the Gov. Code).
The enclosed Appendix describes the revisions needed to comply with State Housing Element Law.
For your information, pursuant to Assembly Bill 1398 (Chapter 358, Statutes of 2021), if a local government fails to adopt a compliant housing element within 120 days of the statutory deadline (January 31, 2023), then any rezoning to accommodate the regional housing needs allocation, including for lower-income households, shall be completed no later than one year from the statutory deadline. Otherwise, the local government’s housing element will no longer comply with State Housing Element Law, and HCD may revoke its finding of substantial compliance pursuant to Government Code section 65585, subdivision (i). Please be aware, if the City fails to adopt a compliant housing element within one year from the statutory deadline, the element cannot be found in substantial compliance until rezones to accommodate a shortfall of sites pursuant to Government Code section 65583, subdivision (c)(1)(A) and Government Code section 65583.2, subdivision (c) are completed.
Dana Ayers, Director
Public participation in the development, adoption and implementation of the housing element is essential to effective housing planning. Throughout the housing element process, the City should continue to engage the community, including organizations that represent lower-income and special needs households, by making information regularly available and considering and incorporating comments where appropriate. Please be aware, any revisions to the element must be posted on the local government’s website and to email a link to all individuals and organizations that have previously requested notices relating to the local government’s housing element at least seven days before submitting to HCD.
Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City meets housing element requirements for these and other funding sources.
For your information, some general plan element updates are triggered by housing element adoption. HCD reminds the City to consider timing provisions and welcomes the opportunity to provide assistance. For information, please see the Technical Advisories issued by the Governor’s Office of Planning and Research at:
https://www.opr.ca.gov/planning/general-plan/guidelines.html.
We are committed to assisting the City in addressing all statutory requirements of State Housing Element Law. If you have any questions or need additional technical assistance, please contact Jamillah Williams, of our staff, at [email protected].
Sincerely,
Paul McDougall
Senior Program Manager
Enclosure
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 1 October 12, 2022
APPENDIX
CITY OF CLAYTON
The following changes are necessary to bring the City’s housing element into compliance with Article 10.6 of the Government Code. Accompanying each recommended change, we cite the supporting section of the Government Code.
Housing element technical assistance information is available on HCD’s website at https://www.hcd.ca.gov/hcd-memos. Among other resources, the housing element section contains HCD’s latest technical assistance tool, Building Blocks for Effective Housing Elements (Building Blocks), available at https://www.hcd.ca.gov/building-blocks and includes the Government Code addressing State Housing Element Law and other resources.
A. Housing Needs, Resources, and Constraints
1. Affirmatively further[ing] fair housing in accordance with Chapter 15 (commencing with Section 8899.50) of Division 1 of Title 2…shall include an assessment of fair housing in the jurisdiction. (Gov. Code, § 65583, subd. (c)(10)(A).) Enforcement: While the element includes analysis of fair housing complaints, it must describe the City’s compliance with existing fair housing laws and regulations. For additional information, please see pages 28-30 on HCD’s AFFH Guidance Memo at https://www.hcd.ca.gov/community-development/affh/index.shtml.
Regional Analysis: While the element analyzed components of the fair housing assessment and compared the City to neighboring and similar communities (i.e., Walnut Creek, Concord, Pleasant Hill), the element must analyze the City compared to the broader region and with nearby communities such as Unincorporated Contra Costa County (Bay Point), Antioch, and Pittsburg, and evaluate the disparities and differences in income, race, disparities in access to opportunity and other relevant components from the assessment of fair housing. Additionally, the element should supplement this analysis with local data and knowledge and other relevant factors (noted in the finding below). Based on a complete analysis, the element must formulate meaningful actions and programs in response to the analysis.
Racially Concentrated Areas of Affluence (RCAA): The element includes some general analysis about whether parts of the City are considered an RCAA. However, HCD’s fair housing data viewer indicates that the entire City is considered an RCAA. The analysis should include updated data regarding the City’s RCAA designations and as noted above this should be analyzed relative to the broader region, county, and neighboring communities including the City’s eastern neighbors. For more information, please visit:
https://affh-data-resources-cahcd.hub.arcgis.com.
Disparities in Access to Opportunity: While the element identifies and describes local and regional patterns and trends in disparities in access to opportunity for education, transit, economic, and environmental quality, it also must analyze disparities in access to opportunities for persons with disabilities. A complete analysis should include the ndin
ctio
1 Summary of Comments on
conClaytonDraftOut101222_MIGannotated_v2.pdf
Page: 3
Number: 1 Author: sbrekkeread Subject: Sticky Note Date: 11/17/2022 1:58:21 PM Added action re webpage on p. 2-16
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 2 October 12, 2022
locally and regional disparities of the educational, environmental, and economic scores through local, federal, and/or state data and conclude with a summary of issues.
Identified Sites and Affirmatively Furthering Fair Housing (AFFH): The element must include an analysis demonstrating whether sites identified to accommodate the regional housing need allocation (RHNA) are distributed throughout the community in a manner that AFFH. In the analysis, the element concludes that the distribution of sites improves fair housing conditions because of identification of sites in high-resource areas.
However, the element should discuss the location and magnitude of impact to evaluate AFFH. A full analysis should address the income categories of identified sites with respect to location, the number of sites and units by all income groups and how that effects the existing patterns for all components of the assessment of fair housing (e.g., segregation and integration, disparities in access to opportunity). The element should also discuss any isolation of the RHNA by income group and whether the distribution of sites improves or exacerbates conditions. If sites exacerbate conditions, the element should identify further program actions that will be taken to mitigate this (e.g., antidisplacement strategies).
Local Data and Knowledge and Other Relevant Factors: As noted in the prior finding, the element must supplement the analysis and complement state and federal data with local data and knowledge to capture emerging trends and issues, including utilizing knowledge from local and regional advocates, public comments, and service providers.
Additionally, the element should analyze historical land use, zoning, governmental and nongovernmental spending including transportation investments, demographic trends, historical patterns of segregation, or other information that may have impeded housing choices and mobility.
Contributing Factors to Fair Housing Issues: The element includes contributing factors to fair housing issues but should re-evaluate and prioritize these factors based on a complete analysis to better respond to the fair housing issues.
Goals, Priorities, Metrics, and Milestones: Goals and actions must significantly seek to overcome contributing factors to fair housing issues. Currently, the element identifies program(s) to encourage and promote affordable housing; however, most of these programs do not appear to facilitate any meaningful change nor address AFFH requirements. Furthermore, the element must include quantifiable metrics and milestones for evaluating progress on programs, actions, and fair housing results.
Programs must generally address enhancing housing mobility, increasing housing opportunities in high resourced areas, place-based strategies for community revitalization, and addressing displacement risks. Programs also need to be based on identified contributing factors, be significant and meaningful. The element must add, and revise programs based on a complete analysis and listing and prioritization of contributing factors to fair housing issues.
For your information, while the element still needs to include a complete analysis, based on the current information, relative to the City’s eastern neighbors and the broader County and region, the City is considered a higher resourced, higher-income, and racially homogenous (majority white population) community. As such, the element City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 3 October 12, 2022
should focus on strong programs and actions that enhance housing mobility and encourage development of more housing choices and affordable housing in an inclusive manner.
2. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code, § 65583, subd. (a)(3).)
Progress in Meeting the RHNA: The element identified 109 units that have been approved, entitled or under construction for lower and moderate-income households.
Specifically, the element includes “The Olivia Project” to accommodate seven lowerincome RHNA units. However, the element must demonstrate the affordability of this project through actual or anticipated rents or sales prices or other mechanism ensuring affordability such as inclusionary requirements or deed restrictions.
Availability of Zoning: HCD understands that zoning for multifamily parcels (M-R-M and M-R-H) is inconsistent or does not have a corresponding General Plan land use designation. The City acknowledges that these inconsistencies require projects to apply for a general plan text amendment and a rezone request to implement the appropriate zoning and densities. While the element includes a program to address this inconsistency, for your information, for sites expected to accommodate the City’s lowerincome RHNA, if zoning is not in place by the beginning of the planning period (January 31, 2023), the element must include a program committing to adopting zoning changes and comply with requirements pursuant to Government Code section 65583.2, subdivisions (h) and (i).
Realistic Capacity: While the element provides assumptions of buildout for sites included in the inventory, it must also provide support for these assumptions. For example, the element should demonstrate what specific trends, factors, and other evidence led to the assumptions. The estimate of the number of units for each site must be adjusted as necessary, based on the land use controls and site improvements, typical densities of existing or approved residential developments at a similar affordability level in that jurisdiction. For example, the City surveyed recently approved projects as a part of its methodology, but the element should identify and describe each of those projects to support residential capacity assumptions. For additional information, see the Building Blocks at https://www.hcd.ca.gov/analysis-of-sites-and-zoning.
Additionally, the inventory lists a number of sites in nonresidential zones. For sites with zoning that allows 100 percent nonresidential uses (e.g., commercial and mixed-use zones), the calculation of residential capacity must account for the likelihood of 100 percent nonresidential uses. The analysis should be based on factors such as development trends including nonresidential, performance standards requiring residential uses or other relevant factors such as enhanced policies and programs. For example, the element could analyze all development activity in these nonresidential zones, how often residential development occurs and adjust residential capacity calculations, policies, and programs accordingly.
een
arce
1 2
3 Page: 5
Number: 1 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:14:02 PM -07'00' We stated they are deed restricted.
Author: lstetson Subject: Sticky Note Date: 10/28/2022 4:02:51 PM -07'00' Done.
Number: 2 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:14:49 PM -07'00' This is an FYI comment of which we are aware.
Author: lstetson Subject: Sticky Note Date: 10/28/2022 4:12:49 PM -07'00' Added language to Program D-1. Program D-2 already addresses GC 65583.2, h, i.
Number: 3 Author: lstetson Subject: Sticky Note Date: 10/29/2022 1:32:06 PM -07'00' Table 5-4 has been added to show other CCC communities.
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 4 October 12, 2022
Nonvacant Sites: The element must demonstrate the potential for redevelopment on nonvacant sites. To address this requirement, the element notes some general criteria utilized for some but not all the identified nonvacant sites. For example, for some sites, the element notes where there is owner/developer interest. Additionally, the element includes a statement that sites have been chosen due to their location, existing uses, and potential for intensification. This statement should be supported by analysis. First, the element must clearly state the methodology used for identifying nonvacant sites, including describing all criteria. Second, to facilitate an analysis of redevelopment potential, the element should reflect the criteria in the actual sites inventory. For example, the element can list the various criteria utilized on a site-by-site basis. Third, the element must support the validity of the criteria, utilize other criteria, or remove sites if appropriate. For example, the element can discuss previous sites that shared similar characteristics to the methodology and were redeveloped in multifamily housing.
Further, the element must analyze the extent that existing uses may impede additional residential development. The element also indicates that some sites are partially vacant including Sites T, N, and F. For your information, if a site has an existing use, it is considered nonvacant. This information must be reconciled in the element and sites inventory. To analyze the extent the existing use may impede additional residential development, the element can summarize past experiences converting existing uses to higher density residential development, include current market demand for the existing use, provide analysis of existing leases or contracts that would perpetuate the existing use or prevent additional residential development and include current information on development trends and market conditions in the City and relate those trends to the sites identified.
In addition, based on the sites inventory, the housing element relies upon nonvacant sites to accommodate more than 50 percent of the RHNA for lower-income households.
For your information, the housing element must demonstrate existing uses are not an impediment to additional residential development and will likely discontinue in the planning period. (Gov. Code, § 65583.2, subd. (g)(2).) Absent findings (e.g., adoption resolution) based on substantial evidence, the existing uses will be presumed to impede additional residential development and will not be utilized toward demonstrating adequate sites to accommodate the RHNA.
Finally, if the element utilizes sites with existing residential uses. Absent a replacement housing policy, these sites are not adequate sites to accommodate lower-income households. The replacement housing policy must meet the requirements set forth in Government Code section 65915, subdivision (c) (3).
Small Sites: Sites smaller than a half-acre in size are deemed inadequate to accommodate housing for lower-income housing unless it is demonstrated that sites of equivalent size and affordability were successfully developed during the prior planning period or unless the element describes other evidence demonstrating the suitability of these sites. The element is assuming lot consolidation for several smaller sites to accommodate a range of income levels including lower-income households. While the element mentions lot consolidation to facilitate development on these sites, it must eme
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Number: 1 Author: lstetson Subject: Sticky Note Date: 10/29/2022 2:35:57 PM -07'00' We have added clear correlations in the tables.
Number: 2 Author: lstetson Subject: Sticky Note Date: 10/29/2022 2:36:40 PM -07'00' Number: 3 Author: lstetson Subject: Sticky Note Date: 10/29/2022 1:48:34 PM -07'00' New Program K added for Replacement Housing Policy
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 5 October 12, 2022
include an analysis to support this assumption. For example, the element must describe circumstances or criteria used to identify suites suitable for lot consolidation such as common ownership; the City’s role or track record in facilitating small-lot consolidation; policies or incentives offered or proposed to encourage and facilitate lot consolidation; specific examples of projects that were built for lower-income households on similarly sized sites, densities and affordability and relate those examples back to the sites inventory. Based on a complete analysis, the City should consider adding or revising programs to include incentives for facilitating development on small sites.
Previously Identified Nonvacant and Vacant Sites: Nonvacant sites identified in the prior planning period or vacant sites identified in two or more consecutive planning periods are inadequate to accommodate housing for lower-income households unless the element includes a program that requires rezoning within one or three years (whichever is applicable) of the beginning of the planning period to allow residential use at appropriate densities by right for housing developments in which at least 20 percent of the units are affordable to lower-income households. (Gov. Code, § 65583.2, subd. (c).) While the element cites the government code related to sites identified in the previous planning period, it must clearly indicate which sites were identified in previous planning periods and include a program as appropriate.
Zoning for Lower-Income Households: Pursuant to Section 65583.2(c)(3)(A) and (B), the element must identify sites with zoning and densities appropriate to accommodate the development of housing for lower-income households based on factors such as market demand, financial feasibility and development experience within zones. For communities with densities that meet specific standards (at least 20 units per acre for Clayton), this analysis is not required (Section 65583.2(c)(3)(B)). The element identifies Site B (Silver Oaks) in the inventory to accommodate a portion of the City’s lowerincome RNHA; however the allowable density is five units per acre. A density of five units per acre will not be found appropriate to accommodate housing for lower-income households. The element must either remove the site from accommodating the lowerincome RHNA or add a program to rezone the site at appropriate densities.
Accessory Dwelling Units (ADU): The element is projecting 32 ADUs for an average of 4 ADUs per year over the eight-year planning period to accommodate a portion of its RHNA. The projections are based off ADU building permit trends. Specifically, the element states that the City permitted 7 ADUs over the last four years averaging roughly 2 ADUs per year. However, HCD’s records indicate that the City did not report ADU data for 2018 and 2019 and reported 3 ADUs in 2020 and 2 in 2021, averaging no more than 2 ADUs per year. First, to utilize past ADU permit data, the City must submit Annual Progress Reports for 2018 and 2019. Second, the City’s past performance on permitting ADUs do not support a two-fold increase. The element must reconcile these figures and adjust assumptions based on a realistic estimate of the potential for ADUs and include strong policies that commit to incentivizing ADUs. Depending on the analysis, the element must commit to monitor ADU production and affordability throughout the course of the planning period and implement additional actions if not meeting target numbers anticipated in the housing element. If necessary, additional actions, should be taken in a timely manner (e.g., within six months). The degree of additional actions should be in stride with the degree of the gap in production and not
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Number: 1 Author: lstetson Subject: Sticky Note Date: 11/17/2022 1:59:12 PM The sites map shows sites under these criteria.
Number: 2 Author: lstetson Subject: Sticky Note Date: 11/17/2022 2:00:33 PM We explained this in the call with HCD. THe text has been augmented to make it abundantly clear that some are inclusionary units.
Number: 3 Author: lstetson Subject: Sticky Note Date: 11/17/2022 4:03:29 PM Described how they are being used to meet inclusionary requirements. Used 2022 ADU data to bolster the argument. Try to stay at 32 total over 8 years.
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 6 October 12, 2022
affordability. For example, if actual production and affordability of ADUs is far from anticipated trends, then rezoning or something similar would be an appropriate action. If actual production and affordability is near anticipated trends, then measures like outreach and marketing might be more appropriate.
Environmental Constraints: While the element generally describes environmental conditions that exist in the City (e.g., stormwater, earthquakes, flood), it must relate those conditions to the identified sites including any other known conditions or other environmental constraints that could impact housing development on identified sites during the planning period.
Availability of Infrastructure: While the element describes water and sewer infrastructure, it must also demonstrate sufficient existing or planned total water and sewer capacity to accommodate the RHNA.
Zoning for a Variety of Housing Types:
x Multifamily Zoning: While the element analyzed most zones discussing allowable uses and development standards, it is relying entirely on sites zoned “PD” yet provides no discussion or analysis of the zoning. The element must discuss and analyze the PD zoning including listing allowable uses (p. 4-4) and applicable development standards and processes.
x Emergency Shelters: The element must describe compliance with Government Code section 65583, subdivision a)(4)(A) or include a program to comply with this requirement. For your information, pursuant to Government Code section 65583, subdivision a)(4)(A), parking requirements should be limited to allowing sufficient parking to accommodate all staff working in the emergency shelter, provided that the standards do not require more parking for emergency shelters than other residential or commercial uses within the same zone. x Permanent Supportive Housing: Supportive housing shall be a use by-right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65651.
The element must demonstrate compliance with these requirements and include programs as appropriate.
x Employee Housing: In addition, the element must demonstrate zoning is consistent with the Employee Housing Act (Health and Safety Code, § 17000 et seq.), specifically, sections 17021.5 and 17021.6. Section 17021.5 requires employee housing for six or fewer employees to be treated as a single-family structure and permitted in the same manner as other dwellings of the same type in the same zone. Section 17021.6 requires employee housing consisting of no more than 12 units or 36 beds to be permitted in the same manner as other agricultural uses in the same zone. The element must either demonstrate consistency with these requirements or include programs to amend zoning as appropriate. For additional information and sample analysis, see the Building Blocks at https://www.hcd.ca.gov/farmworkers.
x Manufactured Housing: The element describes site plan review and design review requirements for mobile homes. According to state law, manufactured homes on a permanent foundation are to be allowed the in the same as single-
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Number: 1 Author: lstetson Subject: Sticky Note Date: 11/3/2022 7:36:01 AM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 7:43:29 AM -07'00' added language from EIR to constraints analysis (pp. 4-28-4-31) +
added program to amend CMC Section 17.22.060 to exclude housing opportunity sites in most recent HE when calculating density on sensitive lands (p. 2-11) Number: 2 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:20:43 PM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 5:15:25 PM -07'00' Language added to constraints (p. 4-18/19)
Number: 3 Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 7:50:38 AM -07'00' added analysis to constraints (pp. 4-10/11) + added to ZTA program (2-10/11) Number: 4 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:21:07 PM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 8:01:50 AM -07'00' added discussion in constraints (pp. 4-10/11) + added to ZTA program (pp. 2-10/11) Number: 5 Author: lstetson Subject: Sticky Note Date: 10/25/2022 10:51:56 AM -07'00' Address through ZC amendments
LC zone - Can't have use permit
Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 7:52:13 AM -07'00' added to ZTA program to make by right (p. 2-11) + added conclusion to constraints (p. 4-7) Number: 6 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:22:18 PM -07'00' Expand ZCA program
Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 7:53:41 AM -07'00' added new section to constraints (p. 4-6) + added to ZTA program (p. 2-11) Number: 7 Author: lstetson Subject: Sticky Note Date: 10/25/2022 10:54:22 AM -07'00'
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Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 7:54:26 AM -07'00' clarified in constraints (p. 4-6)
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 7 October 12, 2022
family homes. The element must demonstrate compliance with this requirement or add or modify programs.
3. An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, and local processing and permit procedures... (Gov. Code, § 65583, subd. (a)(5).)
Land Use Controls: The element must identify and analyze all relevant land use controls impacts as potential constraints on a variety of housing types. The analysis should evaluate land use controls independently and cumulatively with other land use controls, the analysis should specifically address minimum unit sizes (e.g., 1,000-1800 square feet), lot coverage requirements and height limits. The analysis should address any impacts on cost, supply, housing choice, affordability, timing, approval certainty and ability to achieve maximum densities and include programs to address identified constraints. Based on a complete analysis, the element should include programs to address or remove the identified constraints.
Local Permit and Processing Procedures: While the element included some discussion of permitting procedures and requirements, it must specifically analyze the use permit and site plan permit requirements. First, the element states that multifamily is allowed by-right; however the element also indicates that multifamily is subject to a development plan permit and site plan review which requires notification requirements to neighbors, public hearings, City Council and Planning Commission review and examining compatibility with surrounding uses – essentially a conditional use or exception process.
For your information, subjecting multifamily housing to an exception process is considered a constraint. The analysis must evaluate the processing and permit procedures’ impacts as potential constraints on housing supply (number of units), costs, timing, feasibility and approval certainty. For example, the analysis should consider level of review and actual approval findings. Secondly, the element listed several other permits but should evaluate those processes including the development plan permit, site plan review, and use permit. Lastly, the City requires a use permit for housing for persons with disabilities (e.g., residential care facilities of seven or more). As referenced below, these procedures must be analyzed as potential constraints.
The element also indicates that an affordable housing plan is required to implement the City’s inclusionary requirement. It further states that the affordable housing plan including unit mixes and other requirements are subject to City Council discretion. The element must analyze this requirement for any potential constraints on housing supply, cost, feasibility and affordability.
Design Review: The element references a number of specific plans that contain design review standards respective to each Specific Plan Area (SPA). The element must describe and analyze the design review guidelines and process, including approval procedures and decision-making criteria for each SPA, for their impact as potential g
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Number: 1 Author: lstetson Subject: Sticky Note Date: 11/17/2022 4:05:17 PM This comment is generic. Developers are able to achieve densities allowed.
Are FARs and heights constraints? No.
Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 1:38:36 PM added language to page 4-11
+ added to constraints re manufactured housing (constraint) on pp. 4-6/7 + added to ZTA program on p. 2-11 Number: 2 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:23:43 PM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 7:58:32 AM -07'00' Added discussion/analysis to constraints (p. 4-6) + added to ZTA program (p. 2-11) Number: 3 Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 1:47:49 PM added language to pp. 4-18/19
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 8 October 12, 2022
constraints on housing supply and affordability. For example, the analysis could describe required findings and discuss whether objective standards and guidelines improve development certainty and mitigate cost impacts. The element must demonstrate this process is not a constraint or it must include a program to address this permitting requirement, as appropriate. In addition, the Housing Crisis Act of 2019 (SB 330, 2019) was signed by Governor Newsom on October 9, 2019 and became effective on January 1, 2020. The Housing Crisis Act (Gov. Code, § 66300), under specified conditions, suspends the use of subjective design standards.
The element should evaluate its design review process for consistency with these requirements and include actions as appropriate. For additional information and sample analysis, see the Building Blocks at https://www.hcd.ca.gov/processing-permittingprocedures.
Fees and Exactions: The element indicates that the City imposes either the same fee costs for both multifamily and single-family housing or for certain fees, multifamily fees are more expensive than fees for single family developments. The element should closely evaluate these fees, including disproportionate impacts on housing types such as multifamily and include programs that specifically address and mitigate this constraint. For additional information and a sample analysis and tables, see the Building Blocks at http://www.hcd.ca.gov/community-development/buildingblocks/constraints/fees-and-exactions.shtml.
Zoning and Fees Transparency: While the element states that the City offers a development handbook to applicants that provides an overview of its development approval process, it must clarify compliance with new transparency requirements for posting all zoning, development standards and fees on the City’s website and add a program to address these requirements, if necessary.
SB 35 Streamlined Ministerial Approval Process: The element must clarify whether there are written procedures for the SB 35 (Chapter 366, Statutes of 2017) Streamlined Ministerial Approval Process and add a program to establish written procedures, if necessary.
Local Ordinances: The element must specifically identify and analyze locally adopted ordinances such as inclusionary ordinances or short-term rental ordinances that directly impact the cost and supply of residential development.
On/Off-Site Improvements: While the element listed the types of improvements required for development, it must identify actual subdivision level improvement requirements, such as minimum street widths (e.g., 40-foot minimum street width), and analyze their impact as potential constraints on housing supply and affordability. For additional information and a sample analysis, see the Building Blocks at https://www.hcd.ca.gov/codes-and-enforcement-of-onsite-offsite-improvementstandards. ntify
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Number: 1 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:37:57 AM -07'00' Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:38:21 AM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 5:40:15 PM -07'00' added to constraints (p. 4-15) + added language to existing program (p. 2-11) Number: 2 Author: lstetson Subject: Sticky Note Date: 10/25/2022 11:13:43 AM -07'00' City has no STR.
Author: sbrekkeread Subject: Sticky Note Date: 11/3/2022 5:33:47 PM -07'00' Added language to constraints (p. 4-11)
Number: 3 Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 8:50:48 AM added discussion to p. 4-4 - no constraints; similar to other jurisdictions City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 9 October 12, 2022
Constraints on Housing for Persons with Disabilities –
x Residential Care Facilities of Seven or More: The element indicates that this use is permitted as a commercial use, allowed only with a use permit, requires that these uses are 1,000 feet apart from each other, and must provide parking spaces beyond the required spaces of a typical single-family home. For your information, zoning should simply implement a barrier-free definition of family instead of subjecting, potentially persons with disabilities, to special regulations such as the number of persons, parking requirements, population types and licenses. These housing types should not be excluded from residential zones, most notably low-density zones, which can constrain the availability of housing choices for persons with disabilities. Requiring these housing types to obtain a special use or conditional use permit (CUP) could potentially subject housing for persons with disabilities to higher discretionary standards where an applicant must demonstrate compatibility with the neighborhood, unlike other residential uses. The element must analyze these standards as potential constraints for housing persons with disabilities and include a program to mitigate or remove constraints. In addition, the element must address how the City permits and allows unlicensed group homes of seven or more.
x Definition of Family: The element stated that the City revised its definition of family; however, the element must specifically describe and evaluate the actual definition for impacts on housing for persons with disabilities. x Reasonable Accommodation: While the element stated that the City does utilize a reasonable accommodation process, it must include a discussion and analysis of the timing, process, fees, and approval findings for a reasonable accommodation for any potential constraints on persons with disabilities. Based on a complete analysis, the element may need to include a program to mitigate or remove constraints.
4. Analyze existing assisted housing developments that are eligible to change to nonlowincome housing uses during the next 10 years due to termination of subsidy contracts, mortgage prepayment, or expiration of use restrictions. (Gov. Code, § 65583, subd. (a)(9) through 65583(a)(9)(D).)
The element must identify public and private nonprofit corporations (qualified entities) known to have the legal and managerial capacity to acquire and manage at-risk units.
For a list of qualified entities, please visit: https://www.hcd.ca.gov/policy-andresearch/preserving-existing-affordable-housing.
5. Analyze any special housing needs such as elderly; persons with disabilities, including a developmental disability; large families; farmworkers; families with female heads of households; and families and persons in need of emergency shelter. (Gov. Code, § 65583, subd. (a)(7).)
Special Needs Households: While the element includes data and a general discussion of housing challenges faced by special needs households, it still must provide an analysis of the existing needs and resources for each special needs group including s
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Number: 1 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:24:57 PM -07'00' Every city is getting this comment.
Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 2:04:30 PM added language (p. 4-6, 9) to constraints + added to ZTA program (p. 2-11) Number: 2 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:39:04 AM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/9/2022 5:24:34 PM added verbiage to p. 4-8/9 re time, fees, findings
Number: 3 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:40:06 AM -07'00' City can send information to homeowners about organizations they can sell to, if they wish, to maintain affordability status.
Author: sbrekkeread Subject: Sticky Note Date: 11/9/2022 5:25:24 PM added program + timing to p. 2-14/15
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 10 October 12, 2022
seniors, farmworkers, persons with disabilities, and female-headed households. For example, the element should discuss the existing resources to meet housing needs (availability of shelter beds, number of large units, number of deed restricted units, etc.), an assessment of any gaps in resources, and proposed policies, programs, and funding to help address those gaps.
B. Housing Programs
1. Include a program which sets forth a schedule of actions during the planning period, each with a timeline for implementation, which may recognize that certain programs are ongoing, such that there will be beneficial impacts of the programs within the planning period, that the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the Housing Element... (Gov. Code, § 65583, subd. (c).)
To have beneficial impacts and meet the goals and objectives of the housing element, programs must have specific commitment and discrete timelines (e.g., at least annually or by a specified date). Programs must be revised to address these requirements.
Examples include Programs A-1 Code Enforcement, B-1 Accessory Dwelling Units, B-2 Town Center Mixed-Use, B-3 Affordable Housing Development, E-1 Mortgage Programs, H-1 Funding Assistance, and H-2 Reasonable Accommodation, and J-3 Proactive Actions. For additional information, see the Building Blocks at https://www.hcd.ca.gov/program-overview-and-quantified-objectives.
2. Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Government Code section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing. (Gov. Code, § 65583, subd. (c)(1).)
As noted in Finding A2, the element does not include a complete site analysis; therefore, the adequacy of sites and zoning were not established. Based on the results of a complete sites inventory and analysis, the City may need to add or revise programs to address a shortfall of sites or zoning available to encourage a variety of housing types. In addition, the element should be revised as follows:
Shortfall of Sites: If the element does not identify adequate sites, including available zoning and development standards, to accommodate the RHNA for lower-income households, it must include a program(s) to specifically commit to rezoning sites pursuant to Government Code section, 65583.2, subdivisions (h) and (i). While the s
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Number: 1 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:40:59 AM -07'00' Number: 2 Author: lstetson Subject: Sticky Note Date: 10/20/2022 12:26:37 PM -07'00' Several of these are legitimately "ongoing", but HCD wants dates certain.
Author: sbrekkeread Subject: Sticky Note Date: 11/9/2022 6:02:39 PM added specific timeframes
Number: 3 Author: lstetson Subject: Sticky Note Date: 11/17/2022 4:06:50 PM Strengthened language regarding planned rezoning and City's commitment to do it immediately following HE adoption (and within the one year dictated by statute).
Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 2:22:43 PM Laura updated - p. 2-10
Number: 4 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:43:24 AM -07'00' Beef up program language.
Author: sbrekkeread Subject: Sticky Note Date: 11/9/2022 5:27:37 PM added to p. 2-10 immediately following the adoption of the housing element, the City will move forward on the GPAs and ZTAs City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 11 October 12, 2022
element includes a rezoning program, it does not appear to meet these requirements.
For example, the program should:
Identifying acreage, allowable densities, and anticipated units. permit owner-occupied and rental multifamily uses by-right for developments in which 20 percent or more of the units are affordable to lower-income households.
By-right means local government review must not require a CUP, planned unit development permit, or other discretionary review or approval. accommodate a minimum of 16 units per site;
require a minimum density of 20 units per acre; and
at least 50 percent of the lower-income need must be accommodated on sites designated for residential use only or on sites zoned for mixed uses that accommodate all of the very low and low-income housing need, if those sites:
o allow 100 percent residential use, and
o require residential use occupy 50 percent of the total floor area of a mixeduse project.
For additional information, see the Building Blocks’ at https://www.hcd.ca.gov/identifyadequate-sites.
City-Owned Sites: The element identified City-Owned sites to accommodate a portion of the RHNA. The element should include a program with numerical objectives that ensures compliance with the Surplus Land Act, provides incentives and actions along with a schedule of actions to facilitate development. Actions should include outreach with developers, issuing requests for proposals, incentives, fee waivers, priority processing, financial assistance, completing entitlements and issuing building permits.
3. Address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities. The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities. (Gov. Code, § 65583, subd. (c)(3).) As noted in Finding A3, the element requires a complete analysis of potential governmental and nongovernmental constraints. Depending upon the results of that analysis, the City may need to revise or add programs and address and remove or mitigate any identified constraints.
4. Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics... (Gov. Code, § 65583, subd. (c)(5).)
Program to AFFH: While the element includes Programs J-1, J-2, and J-3 to address fair housing issues in Clayton, these programs do not address priorities discussed in the AFFH section and do not appear intended toward a significant beneficial impact during the planning period. For your information pursuant to Government Code section m w
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Number: 1 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:46:33 AM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/9/2022 6:41:05 PM added text to 2-8/9
Author: sbrekkeread Subject: Sticky Note Date: 11/9/2022 5:29:38 PM added on p. 2-8 at such time that the City declares land surplus, City will proactively seek an affordable housing developer Number: 2 Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 2:56:39 PM done
Number: 3 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:46:53 AM -07'00' Author: sbrekkeread Subject: Sticky Note Date: 11/9/2022 5:48:09 PM added program to seek out developers who cater to disabled population - p. 2-13 added exploring universal design for ADU preapproved plans - p. 2-14 Author: sbrekkeread Subject: Sticky Note Date: 11/10/2022 12:26:57 PM Dana - we may beef up language after Sasha completes added AFFH language; in the meantime, added sentence to Fair Housing section, p 2-16 (all housing in Clayton affirmatively furthers fair housing)
City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 12 October 12, 2022
8899.50 “Affirmatively furthering fair housing” means taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, AFFH means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. The duty to AFFH extends to all public agency’s activities and programs relating to housing and community development.
5. The housing program shall preserve for low-income household the assisted housing developments identified pursuant to paragraph (9) of subdivision (a)... (Gov. Code, § 65583, subd. (c)(6).)
As noted in Finding A4, the element identifies five units at-risk of converting to marketrate uses in the planning period. While Program I-1 (Monitor and Provide Options) will monitor units, the program must also go beyond “considering” amending Chapter 17.92 and extending affordability covenants” and specifically commit to these actions. The element must include a program that addresses preserving at-risk units and specifying actions to monitor at-risk units, including contacting property owners within at least one year of the affordability expiration dates on projects. The program for preserving at-risk units should include noticing requirements within 3 years and 12 and 6 months of the affordability expiration dates, in addition to coordinating with qualified entities such as nonprofit organizations and establish specific time parameters around such actions.
6. Develop a plan that incentivizes and promotes the creation of accessory dwelling units that can be offered at affordable rent... (Gov. Code, § 65583, subd. (c)(7).) The element indicated that planning commission review for larger ADUs can be a constraint for the overall development of these units. As such the element stated that it will remove this constraint; however it did not include a program committing to remove this requirement. The element should be revised with an action to remove planning commission review of large ADU types.
Additionally, while Program D-1 (General Plan Amendments) commits to amending the ADU ordinance to comply with state law, the element is required to include a program that actively incentivizes or promotes ADU development for very low-, low-, and moderate-income households. This can take the form of flexible zoning requirements, development standards, or processing and fee incentives that facilitate the creation of ADUs, such as reduced parking requirements, fee waivers and more. Other strategies could include developing information packets to market ADU construction, targeted advertising of ADU development opportunities or establishing an ADU specialist within the planning department.
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Number: 1 Author: lstetson Subject: Sticky Note Date: 10/27/2022 8:47:16 AM -07'00' Okay.
Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 6:26:14 PM added to pp.2-14/15
Number: 2 Author: lstetson Subject: Sticky Note Date: 11/17/2022 4:08:06 PM Included program that ADU ordinance revision will remove requirement for PC review. New ord will include pre-approved plans and brochure.
Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 5:18:12 PM added language on p. 4-6 + added timing to amendments by March 2023 on p. 2-9 City of Clayton’s 6th Cycle (2023-2031) Draft Housing Element Page 13 October 12, 2022
C. Quantified Objectives
Establish the number of housing units, by income level, that can be constructed, rehabilitated, and conserved over a five-year time frame. (Gov. Code, § 65583, subd. (b)(1 & 2).)
While the element includes quantified objectives for new construction, rehabilitation, and conservation by income group, it could consider quantified objectives for conservation (beyond at-risk preservation). For your information, the quantified objectives do not represent a ceiling, but rather set a target goal for the City to achieve, based on needs, resources, and constraints.
D. Public Participation
Local governments shall make a diligent effort to achieve public participation of all economic segments of the community in the development of the Housing Element, and the element shall describe this effort. (Gov. Code, § 65583, subd.(c)(9).) While the element includes a general summary of the public participation process, it should also demonstrate diligent efforts were made to involve all economic segments of the community in the development of the housing element. The element could describe the efforts to circulate the housing element among low- and moderate-income households and organizations that represent them and to involve such groups and persons in the element throughout the process. The element should be revised to discuss outreach to lower-income and special needs groups during the public participation efforts, solicitation efforts for survey responses, participation in community workshops, and if translation services were provided. In addition, the element should also summarize the public comments and describe how they were considered and incorporated into the element.
ant
1 2
Page: 15
Number: 1 Author: lstetson Subject: Sticky Note Date: 10/25/2022 11:32:33 AM -07'00' Red-tagged units: only about 2 every three years. So, conserve up to 2 annually.
Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 6:30:02 PM done; added to p.2-18
Number: 2 Author: lstetson Subject: Sticky Note Date: 11/7/2022 5:23:50 PM City has engaged with local churches, who do have outreach connections to under-represented communities. Also outreach to affordable housing developers.
Author: sbrekkeread Subject: Sticky Note Date: 11/7/2022 6:34:27 PM summary + cross-referenced Public Participation chapter + added to the introduction 6th Cycle Housing Element Update and Related Land Use Element Amendments, and Certification of Final EIR
City Council Meeting, January 17, 2023
Attachment 6
Public Comments
January 10th, 2023
Dana Ayers (via email - [email protected])
Community Development Director
City of Clayton
6000 Heritage Trail
Clayton, CA 94517
To Whom It May Concern,
East Bay for Everyone and the undersigned organizations write to provide comments on the City of Clayton’s progress towards a draft 6th Cycle Housing Element. We are happy with the progress that Clayton has made so far, but have additional feedback that we believe would increase the likelihood of development in Clayton and improve affordability for new residents:
Increase FARs, building heights and eliminate setbacks in current multifamily zones Setbacks decrease the amount of buildable area, increase the distance pedestrians need to travel to reach their destination, and reduce the sidewalk shadow on hot days. Clayton’s set-backs requirements are larger than other high income areas in the region. To encourage development and non-car trip modes, Clayton should remove setback requirements to make development for multifamily development.
Reduce minimum lot sizes in single-family zones. Clayton’s minimum lot sizes are very large, even for the region. The smallest minimum lot size is 10,000 square feet. This is not listed as a constraint to development in the housing element, but much more housing could be built if lot sizes were reduced to 2-3,000 square feet. See for example Gray and Furth,"Do Minimum-Lot-Size Regulations Limit Housing Supply in Texas?" suggesting that lot sizes in this range frequently serve as a constraint to new development. Please study and take steps to reduce minimum lot sizes for single family development across the city.
Landscaping requirement
Landscaping requirements and minimum Open Space requirements can be a barrier to development. Please ensure that these requirements are in the service of proper stormwater drainage and climate resilience and do not go beyond State guidelines, and are not simply for aesthetic reasons.
Reduce parking requirements from single family developments:
The draft states the city will “Revisit parking requirements for single-family residential uses…” but does not specify the new requirements. The city should specify the proposed change and we strongly encourage you to reduce requirements to 1 uncovered spot per single-family home, regardless of number of bedrooms across all zoning categories. If developers feel it necessary they will continue to construct larger garages and spaces. Furthermore, covered spots are often not used for parking and are instead used for storage and other uses, so should not be required in any zoning area.
Reduce parking requirements from multifamily developments. Given Clayton's strict height requirements in multifamily development, parking will likely need to be constructed underground, which can cost $90,000 per space, a cost which gets passed on directly to developers and buyers, who need to take out larger loans and interest payments. The city should reduce requirements to 1 uncovered spot per unit, regardless of number of bedrooms across all zoning categories. Also, add provisions that secure bicycle parking may substitute for car-parking at a rate of 4 bicycles per 1 car spot.
Sincerely,
Maxwell Davis and the 2500 members of East Bay for Everyone Victor Flores
Greenbelt Alliance
October 18, 2022
Dana Ayers (via email - [email protected])
Community Development Director
City of Clayton
6000 Heritage Trail
RE: Draft Housing Element Determination
Ms. Ayers,
East Bay for Everyone and the undersigned organizations write to provide comments on the City of Clayton’s progress towards a compliant 6th Cycle Housing Element.
In light of HCD’s recent request for revisions to the draft submitted July 14, 2022 we encourage you to reread the letters we sent on January 4th, 2022 and May 9th, 2022 (linked below) which highlighted many of the same issues that HCD cited in their review, specifically:
● Many sites on Clayton’s draft inventory were also present in the 4th and 5th Cycle Housing Element Inventories, and therefore must be re-zoned for by-right approval as required by AB1397. From HCD, the city “must clearly indicate which sites were identified in previous planning periods and include a program as appropriate“ ● Many sites are non-vacant and seem unlikely to be developed within the planning period. From HCD “the housing element must demonstrate existing uses are not an impediment to additional residential development and will likely discontinue in the planning period”
Clayton, like all cities in the Association of Bay Area Governments, is legally required to adopt a compliant Housing Element by January 31, 2023. We are concerned that Clayton is not on track to achieve this goal. There are many consequences of failing to adopt a compliant Housing Element on time. We would like to bring to your attention one such consequence, the Builder’s Remedy. Pursuant to Gov't Code § 65589.5(d), if a jurisdiction does not have an adopted, compliant Housing Element, any developer can propose housing projects at any height or density on any parcel in the city so long as they contain 20% low income units, and the jurisdiction cannot reject it unless there is a specific health or safety issue. If Clayton does not have an adopted, compliant Housing Element by Jan. 31, 2023, then on Feb. 1, 2023, developers can begin proposing Builder's Remedy projects.
In southern California, we are already seeing Builder’s Remedy projects. In Redondo Beach, a developer has proposed a 2300-home project. Santa Monica has received fourteen Builder’s Remedy project applications, including a 15-story 2000-unit building. HCD has recently written a memo saying that cities must approve these projects.
As we are seeing with Santa Monica, a jurisdiction cannot protect itself from already-filed applications by later coming into compliance. Santa Monica is now in compliance. Nonetheless, its 15-story building application cannot be rejected on the grounds of Santa Monica’s eight story height limit; the developer applied for the project in the window where Santa Monica was out of compliance, and the application is now vested with the zoning standards applicable at the time of application.
We would like Clayton to retain control, by adopting and submitting a compliant Housing Element by the January 31, 2023 deadline.
We look forward to continuing to engage with the City of Clayton as it develops its plan to accommodate growth and inclusive development. If you are conducting meetings with community organizations to discuss the Housing Element this fall, we would love to take part.
Sincerely,
Maxwell Davis
East Bay for Everyone
Victor Flores
Greenbelt Alliance
Zac Bowling
East Bay YIMBY
Rafa Sonnefeld
YIMBY Law
cc: [email protected]
Link to January 4, 2022 letter:
https://eastbayforeveryone.org/wp-content/uploads/2022/04/2022-01-04-clayton-site-inventory-l etter.pdf
Link to May 9, 2022 letter:
https://eastbayforeveryone.org/wp-content/uploads/2022/10/2022-05-09-clayton-eir.pdf From: David Dolter
To: Dana Ayers
Cc: Grant Alvernaz
Subject: PEACOCK/OAKHURST - HUE & INCLUSION OF OAKHURST DRIVING RANGE PARCELS THEREIN Date: Thursday, September 15, 2022 9:43:09 AM
Importance: High
Greetings… we’d like to reiterate or request that the city include the 4 parcels that comprise the driving range into the Housing Element Update as well as the other parcels we previously identified.
Happy to discuss further when we meet again.
Thanks and best regards…
David Dolter, Principal
REAL ESTATE DEVELOPMENT SOLUTIONS
925/766-6160
Clayton City Hall
6000 Heritage Trail
Clayton, CA 94517
Dear Mayor Peter Cloven, Vice Mayor Holly Tillman and City Council, Thank you so much for the opportunity to review the Clayton Housing Element. There are many opportunities in this document to address the housing needs of Clayton and make a dent in the regional housing crisis while simultaneously combating climate change. Greenbelt Alliance and partner organizations have been working with cities around the region to provide input on Housing Element drafts in advance of the HCD reviewers. We have a few comments and specific goals and policy recommendations we would like to share with you as we also believe these are issues that HCD will also flag, so the earlier you can address them, the more seamless your process will be.
Comments
● Nimby opposition should be listed as a constraint. We reviewed the public survey comments, have attended city council meetings and understand that there is some pushback from community members who do not want more housing. HCD will likely require that NIMBY opposition is listed as a constraint. Clayton should implement a robust program regarding education of the benefits of new housing and the need for housing. ● Constraints need mitigation efforts. All constraints should list ways to mitigate said constraints.
Site Selection Comments
● Housing on church land - While we support the concept of housing on church land, we were concerned to see three church sites zoned for housing with no indication that these churches were planning on closing or relocating in the near future. G-downtown site adjacent the South Clayton community church seems like a great site but we are concerned about the likelihood of the South Clayton community church, Saint Johns Parish and Clayton Valley presbetarian church sites.
● Building on park land - It appears that a large portion of the housing units will be in the Easley Estates park. We think it is both unlikely that this would be built due to neighborhood concerns and think it is important to preserve valuable park land. We would like to encourage you to increase the density on additional lots in order to preserve or offset this site.
Thank you so much for considering these recommendations. We look forward to continuing to work with you to make the housing element as sustainable and resilient as possible. For additional policies please review the Housing section of the Resilience Playbook.
Regards,
Zoe Siegel, Director of Climate Resilience, Greenbelt Alliance Victor Flores, Resilience Manager, Greenbelt Alliance
August 04, 2022
Dear Clayton City Council:
We are writing on behalf of South Bay YIMBY regarding Clayton’s 6th Cycle Housing Ele‐ ment Update. As a regional pro-housing advocacy group, South Bay YIMBY works to en‐ sure cities adopt housing elements that are fair, realistic, and lawful.
Per §8899.50(a)(1) of state code, Clayton's housing element must affirmatively further fair housing, which entails 'taking meaningful actions... that overcome patterns of segreg‐ ation.'
The City of Clayton is uniquely positioned to affirmatively further fair housing, as Clayton is a wealthy, exclusionary city that researchers with the Othering and Belonging Institute at UC Berkeley identify as highly segregated from the rest of the Bay Area. This socioeco‐ nomic segregation is caused by the exclusionary cost of housing in your community, where an average home, as of April 30th, costs $1,470,000, which is only affordable to someone earning a salary of $258,000, meaning only the richest 4% of households can afford to settle down in your community. It is thus no coincidence that your city is 75% whiter than the rest of the Bay, as well as 68% less black than the rest of the Bay Area.
In a 2021 report entitled 'Exclusionary Zoning: Its Effect on Racial Discrimination in the Housing Market,' economic advisors for the White House outline how exclusionary zoning, like yours, causes segregation. Your exclusionary zoning pushes low income children to live in less resourced areas, which begets worse life outcomes from health to income. The research is clear: exclusionary zoning violates your duty to further fair housing.
To take meaningful actions that overcome patterns of segregation, we recommend you:
1. End apartment bans in high opportunity areas. This will give middle and working class families the opportunity to share in the resources your rich neighborhoods enjoy. As of 2020, your city banned apartments in over 95.4% of high opportunity residen‐ tial areas.
2. Accommodate 1540 low income homes in your site inventory. While substantially larger than the floor of 267 low income homes required by RHNA, 1540 is the number of homes required to bring the proportion of low income families in your city in line with the rest of the Bay Area. While this number is large enough to be politically challenging, it will always be politically challenging to overcome segregation, as AFFH requires.
Thank you,
Salim Damerdji, South Bay YIMBY
Keith Diggs, YIMBY Law
Jeremy Levine, Legislative and Political Director for Contra Costa Young Democrats
From: William P. Jordan
To: Dana Ayers; Janet Calderon
Subject: Housing Element Item on Agenda
Date: Tuesday, May 24, 2022 4:59:21 PM
Please consider adding 6530 and 6500 Marsh Creek Rd. to have 30 units as you have done to 6470 Marsh Creek Rd.
Also, the commission should know construction documents for all three building permits are finished and Dana has received architectural and landscape last week for her review.
Once approved, we’ll submit to county.
Btw, its dicey down at the county building department for permits and we are hopeful to get them by deadline.
Time is of the essence for our submittals.
Sent from my iPhone
From: T Cianfrano
To: Housing Element
Subject: New Housing Element requirements
Date: Friday, May 20, 2022 9:00:00 AM
Much as been said about the impact of adding 560 units in this round of the housing element. For the most part, the impacts have focused on traffic, air quality, fire escape routes, etc . No one has addressed the impact on the water supply to support this and other proposed growth. The only factor considered is the need for “affordable” housing. These homes can be built much faster than infrastructure components.
All indications is that the drought will continue and in fact, worsen due to climate change. What is being done to address “ALL” impacts?
Sent from Mail for Windows
May 9, 2022
Dana Ayers (via email - [email protected])
Community Development Director
City of Clayton
6000 Heritage Trail
Clayton, CA 94517
To Whom It May Concern,
East Bay for Everyone and the undersigned organizations write to provide comments on the City of Clayton’s progress towards a draft 6th Cycle Housing Element and following up on our January 4th letter(linked below).
The previous letter described site-specific feedback and concerns. We have not yet received a response to that letter and the city has proceeded with the EIR with the same site list. We write to inform the city that we do not think the city is on track to have a compliant housing element and offer the additional guidance:
Gather input from developers:
Local housing developers should act as a resource to offer guidance on the barriers to development in Clayton especially given a history of long delayed developments like The Olivia on Marsh Creek, a site which was included in the 4th and 5th Housing Element cycle, was rezoned in 2011 and is still not developed over 10 years later.
Buffer on sites:
From HCD’s Housing Element Sites Inventory Guidebook “it is recommended the jurisdiction create a buffer in the housing element inventory of at least 15 to 30 percent more capacity than required”(emphasis added).
Given that Clayton has built zero Low Income sites in the last 7 years, a buffer of 20% is illogical and will likely lead to the same poor results as before. Clayton should be planning for 2 to 3 times the RHNA allocation in order to have any chance of meeting this requirement.
Lot Coverage, Height, Parking etc
From HCD’s Housing Element Sites Inventory Guidebook:
“When establishing realistic unit capacity calculations, the jurisdiction must consider the cumulative impact of standards such as maximum lot coverage, height, open space, parking, on-site improvements such as sidewalks or easements, and floor area ratios” Given Clayton’s low rate of development, the city must reduce these barriers, removing height limits, lot coverage requirements, parking minimums and other obvious restrictions on development.
Infill housing for Environmental Benefits
By building more homes in already established urban areas, Clayton can avoid paving over trees and habitats that serve as heat sinks and carbon banks, all of which provide high-value climate benefits. It is critical to support growth in safe infill locations and streamline the permitting process when appropriate, while still allowing for a public process, requiring environmental review, and rewarding jurisdictions that meet housing goals. To support this, please refer to Greenbelt Alliance’s Resilience Playbook.
Evidence of Site Suitability:
HCD’s Housing Element Sites Inventory Guidebook states “[t]o demonstrate the feasibility of development … the analysis must include … Evidence that the site is adequate to accommodate lower income housing. Evidence could include developer interest, potential for lot consolidation, densities that allow sufficient capacity for a typical affordable housing project, and other information that can demonstrate to HCD the feasibility of the site for development.” Clayton has not provided sufficient evidence that the sites on this inventory are suitable. See previous letter for site-specific feedback explaining why sites are not feasible.
Sincerely,
Maxwell Davis
East Bay for Everyone
Zoe Siegal
Greenbelt Alliance
Zac Bowling
East Bay YIMBY
Rafa Sonnefeld
YIMBY Law
cc: [email protected]
Link to Jan 4, 2022 letter:
https://eastbayforeveryone.org/wp-content/uploads/2022/04/2022-01-04-clayton-site-inventory-l etter.pdf
From: Contra Costa County Climate Leaders (4CL)
To: Letecia “Holly” Tillman; Letecia “Holly” Tillman; Carl "CW" Wolfe; Carl "CW" Wolfe; Jim Diaz; Jeff Wan; Jeff Wan; Peter Cloven; Peter Cloven; Reina Schwartz; Janet Calderon; Housing Element Cc: [email protected]; "Karen Rosenberg"; "Tyler Snortum-Phelps"; [email protected] Subject: General Plan and Housing City of Clayton
Date: Thursday, January 6, 2022 9:21:05 AM
Letecia "Holly" Tillman Council Member [email protected] ; [email protected] Carl Wolfe Mayor [email protected]; [email protected] Jim Diaz Council Member [email protected]
Jeff Wan Council Member [email protected] ; [email protected] Peter Cloven Vice Mayor [email protected] ; [email protected] Reina Schwartz Interim City Mgr. [email protected] Janet Calderon City Clerk [email protected]
[email protected]
Honorable Mayor and Councilmembers,
Thank you for the public hearing this week on the update of the City of Clayton’s General Plan, Housing Element.
Per my public comments Contra Cosa Count Climate Leaders (4CL) requests:
PUBLIC INPUT: Despite the council mentioning the need for public input and for folks to take the survey. It seems that the survey has been shut down for public input. We agree that the survey should be republished and continue--- and that a more robust effort to get input should be made. We apreciated the councilmember’s comment that it should be made clear that this is a plan in place for the next decade, and that it is important to express to your residents-- the urgency of their input needed for this important planning process.
SUSTAINABLE AND ADDRESS THE CLIMATE CRISIS. We agree with councilmembers comments that it was wise to more directly encourage Energy Efficiency in one of the stated goals; however, the other goals are quite broad and don’t really provide much direction to the Planning Commission. We ask that as elected officials, you direc the planning commission to incorporate mitigation for the climate crisis in their planning.
As noted, other than transportation (which contributes the greatest portion of Greenhouse gas emissions), it is the build environment where your city can have the most impact, Please ensure your housing element provides options to build more infill housing in existing urban areas and include climate and energy mitigations to reduce greenhouse gas (GHG) emissions
TRACK AND MONITOR. Further, as requested, please ensure that you consider real Measirable goals in your housing element. And ensure they are reviewed at east annually to monitor and reduce the carbon footprint of any new proposed housing.
As noted, low energy and low cost housing will pass on those cost saving to the residents of these affordable homes; providing Clayton with a win win solution that addresses housing and the climate crisis.
Please keep us on the email outreach list for General Plan updates. [email protected]
Please consider these Best practices that other local governments are providing in their General Plan Updates.
https://www.cccclimateleaders.org/workshops/general-plan-updating/ And we look forward to working with you!
Lynda Deschambault
Environmental Scientist and Educator
Former USEPA
Former Mayor Moraga, CA
Executive Director, www.cccclimateleaders.org
---------- Forwarded message ---------
From: Zoom <[email protected]>
Date: Tue, Jan 4, 2022, 11:02 PM
Subject: Virtual Clayton City Council Meeting Confirmation To: <[email protected]>
January 4, 2022
Dana Ayers (via email - [email protected])
Community Development Director
City of Clayton
6000 Heritage Trail
Clayton, CA 94517
To Whom It May Concern,
East Bay for Everyone and the undersigned organizations write to provide comments on the City of Clayton’s 6th Cycle Housing Element efforts for the January 4, 2022 City Council meeting.
As a preliminary matter we note that AB1397 requires recycled and nonvacant sites in a previous housing element to be rezoned for by-right development of 20% low-income projects. If the proposed site is vacant and recycled from the previous two cycles, it must also be rezoned for by-right approval.
Of the sites identified in the Preliminary 6th Cycle Sites (Attachment 3 of the staff report) compiled by the City of Clayton and MIG, approximately 70% are recycled from the 4th and/or 5th cycle housing elements.
The following preliminary sites are vacant and have been part of the City of Clayton’s Housing Element for the 4th and 5th cycle housing elements:
● Site E - proposed 20 dwelling units/acre (DUA) and is vacant. ● Site G - proposed 20 DUA and is vacant.
● Site N - proposed 20 DUA and is vacant.
1 Clayton Preliminary Sites for 6th Cycle HE
January 4, 2022
These sites should be re-zoned for by-right approval as required by AB1397.
In addition the following sites are non-vacant and have been previously part of 4th or 5th cycle housing elements:
● Site F - proposed 20 DUA, previously part of the 5th cycle and contains three existing residential uses.
● Site H - proposed 20 DUA, previously part of 4th and 5th cycles and contains existing residential uses.
● Site I - proposed 10 DUA on 13 acres, previously part of the 4th cycle and contains two existing residential uses.
○ The density of this site should be increased to 20 DUA or more in order to maximize the likelihood of development given the existing high value residential uses.
● Site J - proposed 5 DUA and previously part of the 4th cycle and 5th cycles. Two of the parcels are vacant greenfield locations. The northern third parcel contains three large existing residential uses.
○ It is unlikely that these residential uses will be redeveloped at a density of 5 DUA. ○ Furthermore the southern two parcels are 1000 feet from an active quarry. ○ This site should be removed from consideration.
● Site M - proposed 20 DUA and previously part of the 4th cycle and 5th cycles. This site contains existing residential and agricultural uses.
● Site O - proposed 20 DUA, previously part of 4th and 5th cycles and contains existing residential uses.
The above-mentioned sites should be rezoned to allow for by-right development for projects that include 20% low-income units as required by AB1397, excluding Site J which should be removed entirely from sites.
In addition we offer the following comments:
● Site K - proposed 3 DUA, previously part of the 5th cycle. This site is on a steep hillside between existing residential uses. There are significant difficulties in developing this site and it should be removed from consideration.
● Sites P, Q, and R are welcome additions to the site inventory. Please provide a copy of a letter from the property owners stating they are open to developing the site at the prescribed density. We encourage the City of Clayton to partner with East Bay Housing Organizations to highlight these opportunities for development. ● Sites A and S - proposed 20 DUA, These sites are existing churches(Saint John's Episcopal Parish and Clayton Community Church). Please provide a copy of a letter from the property owners stating they are open to developing the site at the prescribed density. The church-owned properties will likely require collaboration with non-profit 2 Clayton Preliminary Sites for 6th Cycle HE
January 4, 2022
housing organizations. We encourage the City of Clayton to partner with East Bay Housing Organizations to highlight these opportunities for development. ● We encourage the City of Clayton to remember that Mullin Densities of 20 DUA are merely a floor rather than a ceiling. Therefore, any reduction in units below the RHNA shortfall due to removal of potential sites should be re-allocated to redeveloped or new sites above the 20 DUA threshold of Mullin Densities.
● In looking for replacement sites, we encourage Clayton to consider adding additional density on sites within walking distance of downtown, with little or no parking minimum.
These locations would be perfect for seniors looking to downsize or car-light families.
We look forward to continuing to engage with the City of Clayton as it develops its plan to accommodate growth and inclusive development. If you are conducting meetings with community organizations to discuss the Housing Element this spring, we would love to take part.
Sincerely,
Maxwell Davis
East Bay for Everyone
Zoe Siegal
Greenbelt Alliance
Zac Bowling
East Bay YIMBY
Rafa Sonnefeld
YIMBY Law
cc: [email protected]
3 From: Karen Rosenberg
To: Housing Element; Peter Cloven; Letecia “Holly” Tillman; Jim Diaz; Jeff Wan; Carl "CW" Wolfe Subject: Housing Element Policy Recommendations for Climate Resilience Date: Monday, January 3, 2022 3:17:38 PM
Attachments: Clayton Housing Element Policy Recommendation Letter (1).pdf Hello,
Prior to tomorrow's City Council Study Session we would like to share the following letter which outlines our vision for a climate resilient and equitable Clayton.
This is a once in a decade moment for Clayton to make pivotal progress on climate change by modernizing local policies to build more housing in the right places and protect open spaces. The challenge of building enough housing to bridge the gap also brings opportunity for Clayton to incorporate climate policies into their Housing Element by building the right kind of housing in the right places while protecting our valuable open spaces and irreplaceable farmland.
To achieve the growth our region needs while protecting open spaces, biodiversity, and current and future residents, Greenbelt Alliance and our partners have developed three main strategies for Clayton to base their policies and actions around: increasing density within existing communities in non-high fire severity zones and away from flood zones, ensuring fair and inclusive zoning policies that make housing accessible to everyone, and requiring nature-based solutions for climate resilience in future developments.
To further support our vision for Clayton, Greenbelt Alliance and other partnering organizations have crafted a go-to guide for accelerating equitable adaptation to the climate crisis; The Resilience Playbook. The Playbook brings together curated strategies, recommendations, and tools to support local decision makers and community leaders wherever they are in their journey.
We look forward to participating in the Housing Element process.
Regards,
Karen Rosenberg
--
Karen Rosenberg
Resilience Fellow
Greenbelt Alliance
312 Sutter Street, Suite 402 | San Francisco, CA 94108
We're adapting to a changing climate. Get our new Strategic Plan to find out how. greenbelt.org | Facebook | Instagram | Twitter
January 3, 2022
RE: Housing Policy Recommendations for Climate Resilience Dear Mayor Peter Cloven, Vice Mayor Holly Tillman and City Council, The undersigned organizations and individuals are excited to participate in Clayton’s Housing Element process. We write to offer guidance to Clayton in meeting its Regional Housing Needs Allocation (RHNA) goals during the upcoming Housing Element cycle that we believe will make room for more families to enjoy everything Clayton has to offer while ensuring that it is deemed compliant. This is a once in a decade moment for Clayton to make pivotal progress on climate change by modernizing local policies to build more housing in the right places and protect open spaces. The challenge of building enough housing to bridge the gap also brings opportunity for Clayton to incorporate climate policies into their Housing Element by building the right kind of housing in the right places while protecting our valuable open spaces and irreplaceable farmland.
The Housing Element is an excellent opportunity for Clayton to mitigate climate change and negative environmental impacts in Clayton. In California, about 40% of climate pollution comes from transportation, the bulk of that from gasoline- and diesel-burning vehicles on our roads.
Building more of the right housing in the right places can mitigate climate impacts and reduce housing costs and inequities. But in order to do this we need to change the way we build: as we encourage and engage in equitable, fire-safe infill development, it is imperative that we think about how we can really maximize the benefits that we’re getting from our land. We need to build more infill housing in existing urban areas and that infill housing — and all housing — needs to include a healthy amount of green infrastructure like bioswales, carbon sequestering trees that provide canopy cover and can mitigate the urban heat island effect, native plants that can provide habitat, and other nature-based solutions to climate risks.
We believe that by adjusting zoning and development standards strategically, Clayton can exercise maximum control over its future while also reducing greenhouse gas (GHG) emissions and addressing our climate, housing, and equity crises. By considering the feasibility of proposed housing sites, Clayton can ensure the Department of Housing and Community Development (HCD) deems the new housing element legally compliant and accepts Clayton’s housing element. 1 As Clayton begins their update process, we would like to offer three priorities to base Clayton’s policies and actions around.
1. Increase density within existing communities in non-high fire severity zones and away from flood zones. We must build more housing in existing communities to create healthy, resilient, and affordable housing and protect our open spaces to provide climate benefits. Concentrating growth in places with low or even moderate wildfire hazard risk and outside of anticipated flood zones is necessary to address the need for building more homes while avoiding unnecessary pressure for sprawl and unsustainable shoreline development. a. Clayton has many commercial sites that could be strengthened through the addition of mixed-income or affordable housing. Large parking lots and setbacks of legacy office development represent opportunities to create mixed-uses that lower greenhouse gas emissions, create vitality and increase walkability. b. Increase heights and remove restrictions on density in non-fire or flood severity areas where existing or new high-capacity transit is planned to encourage housing and the creation of mixed-use corridors.
2. Ensure fair and inclusive zoning policies that make housing accessible to everyone.
The compounding crises of climate change and housing affordability disproportionately impact low-income and communities of color. In order to address our housing, climate, and equity crises, we need to change the stigma around multifamily home structures.
Furthermore, current housing policies have resulted in people being unable to afford to live where they work, creating long unsustainable commutes—both for the environment and for our social fabric. Cities need to actively plan for diverse housing options that are accessible to people of all backgrounds and income levels using the principles of Fair Housing. a. Affordable Housing - Sites to meet Clayton’s low and very low-income RHNA should focus on feasibility. This means identifying good locations near transit, schools and jobs. Such sites will ensure that affordable housing developers seeking will be competitive in applying for funding. Pleasanton also should try to align such the densities of these opportunity sites with affordable housing finance mechanisms.
Typical Low-Income Housing Tax Credit affordable housing developments contain between 40 and 75 units. The density yields of sites should reflect this rather than simply reverting to the statutory minimum density of 30 dwelling units per acre for low-income and very low-income housing under RHNA (the so-called Mullin Densities) regardless of the size of the site.
b. Missing Middle – Clayton should also focus on creating opportunities for “missing middle” housing like townhouses and duplexes. In Clayton, 90.4% of housing is owner occupied, the majority of which is single-family homes. Multifamily housing provides housing opportunities for families who cannot afford to buy or rent single-family homes in Clayton.
3. Require nature-based solutions for climate resilience in future developments. To ensure that Clayton’s current and future homes are resilient to climate risks like wildfire and flooding, Clayton must be better equipped to help communities struck by natural disasters rebuild and respond rapidly and inclusively. Clayton should require developers to integrate green infrastructure into development and the public right-of-way adjacent to developments at a level that exceeds water quality mandates and ensures that the community has an opportunity to provide input. New infill development has the opportunity to rejuvenate parts 2 of Clayton that currently contribute negatively to GHG emissions, urban heat islands and pose fire and flood risks.
a. Implement nature-based adaptation - or consider relocating - critical public assets threatened by sea-level rise or rising groundwater.
b. Require and incentivize green infrastructure in future developments and when possible, use green infrastructure as a preferred alternative. c. Consider permit streamlining for new housing that exceeds current green infrastructure requirements.
d. Reduce mandatory parking minimums to encourage environmentally friendly transit modes like walking, cycling, taking public transit, and purchasing fewer cars.
To support our vision for Clayton, Greenbelt Alliance and other partnering organizations have crafted a go-to guide for accelerating equitable adaptation to the climate crisis; The Resilience Playbook. The Playbook brings together curated strategies, recommendations, and tools to support local decision makers and community leaders wherever they are in their journey.
We look forward to continuing to engage with Clayton and the community on how this vital work can move forward in the new year.
Sincerely,
Zoe Siegel
Director of Climate Resilience,
Greenbelt Alliance
Karen Rosenberg
Resilience Fellow, Greenbelt
Alliance
Derek Sagehorn
Housing Element Coordinator,
East Bay for Everyone
Laura deTar
Executive Director, Fresh
Approach
Tina Neuhasel
President and CEO,
Sustainable Contra Costa
Lynda Deschambault
Executive Director,
Contra Costa Climate Leaders
Alexi Lindeman
Chair, Sustainable Leaders In
Action
Peri Lindeman
Youth Environmentalist,
Antioch
Abigail Stofer
Youth Environmentalist,
Walnut Creek
Stella Lin
Youth Environmentalist, San
Ramon
Olivia Johnson
Youth Environmentalist,
Brentwood
Ian Cohen
Youth Environmentalist,
Brentwood
Selam Asfaw
Youth Environmentalist,
Brentwood
Diana Salazar
Youth Environmentalist,
Brentwood
Gabriel Vitan
Youth Environmentalist,
Brentwood
Xaylee Minchey
Youth Environmentalist,
Brentwood
Rachel Kimball,
Youth Environmentalist,
Antioch
Kyle Suen
Youth Environmentalist,
Walnut Creek
3 Agenda Item: 8(a)
1 AGENDA REPORT
TO: HONORABLE MAYOR AND COUNCIL MEMBERS
FROM: REINA J. SCHWARTZ, CITY MANAGER
DATE: January 17, 2023
SUBJECT: Request by Mayor Wan to Discuss Potential Support for the “Our Neighborhood Voices”
___________________________________________________________________________
RECOMMENDATION
Discuss as requested by Mayor Wan and consider adoption of Resolution in support of the Our Neighborhood Voices Initiative.
BACKGROUND
Mayor Wan requested that an item be placed on the Agenda to discuss whether the City Council wished to take a formal position in support of this proposed initiative. Should the Council wish to support the initiative, a draft Resolution is attached for consideration.
FISCAL IMPACTS
Unknown at this time.
Attachments
1. Proposed Resolution of Support
2. Text of Proposed Initiative
3. Presentation
RESOLUTION NO. XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CLAYTON, CALIFORNIA, EXPRESSING SUPPORT FOR THE
“BRAND-MENDOZA-CANDELL TRIPARTISAN LAND USE
INITIATIVE” TO AMEND ARTICLE XI OF THE CONSTITUTION OF
THE STATE OF CALIFORNIA TO MAKE ZONING AND LAND USE
COMMUNITY AFFAIRS, AND NOT OF STATE INTEREST
WHEREAS, the Legislature of the State of California in recent years has proposed, passed, and signed into law a number of bills addressing a range of land use planning and housing issues; and
WHEREAS, the majority of these bills usurp the authority of local jurisdictions to determine for themselves the land use policies and practices that best suit each city and its residents and instead impose “one-size-fits-all” mandates that do not take into account the unique needs and differences of local jurisdictions throughout the State of California; and
WHEREAS, the majority of these bills do not provide any incentives or requirements for low-income affordable or moderate income workforce housing, but instead impose new policies that will incentivize speculation and result in the addition of market-rate or luxury housing, thereby eliminating the opportunity for local jurisdictions to implement effective policies that will create more affordable housing and affirmatively further fair housing practices; and
WHEREAS, the ability of local jurisdictions to determine for themselves which projects require review beyond ministerial approval; what parking requirements are appropriate for various neighborhoods; what housing plans and programs are suitable and practical for each community; and what zoning should be allowed for residential properties, rather than having these decisions imposed upon cities without regard for the unique circumstances and needs of each individual community, is a matter of critical importance to the City of Clayton and many other municipalities focused on local zoning and housing issues; and
WHEREAS, the City Council of the City of Clayton hereby determines that local government entities are best able to assess and respond to the unique needs of their respective communities and hereby objects to the proliferation of State legislation (including SB 9 and SB 10) that would deprive us of that ability.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CLAYTON, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. That the City Council of the City of Clayton is opposed to the legislature of the State of California continually proposing and adopting legislation that overrides the zoning and land use authority of local government and inhibits the ability of local government to effectively plan for and implement policies to stimulate the efficient production of affordable housing in the City of Clayton.
SECTION 2. That the City Council of the City of Clayton supports the BrandMendoza-Candell Tripartisan Land Use Initiative (Attached to the Resolution as Exhibit A) to ensure that zoning and land use authority rests with the local government entities that represent the communities in which the residents reside, and to allow local government to participate in solving our affordable housing crisis through solutions that effectively address the unique needs and conditions of each local community.
SECTION 3. That the City Council of the City of Clayton incorporates each recital set forth herein above.
(Here set forth the unique numeric identifier provided by the Attorney General and circulating title and summary prepared by the Attorney General. Both the Attorney General’s unique numeric identifier and the circulating title and summary must also be printed across the top of each page of the petition whereon signatures are to appear.)
We, the undersigned, registered, qualified voters of California, residents of _____ County , hereby propose amendments to the Constitution of California, and petition the Secretary of State to submit the same to the voters of California for their adoption or rejection at the next succeeding general election or at any special statewide election held prior to that general election or as otherwise provided by law. The proposed constitutional amendments read as follows:
SECTION 1. The people of the State of California find and declare all of the following:
(a) California’s housing crisis is primarily due to a failure to provide enough housing (to own or rent) that is affordable for working class and lower income Californians, and this crisis has worsened due to massive reductions in available funding to help local governments encourage more affordable housing production. The involvement of large financial institutions and speculators in our housing markets and recent state laws that usurp the power of local government to exercise its constitutional authority to make local land use planning and zoning decisions have combined to further restrict affordable housing options and displace many working class families and people of color from their own historic communities.
(b) Local government is best able to consider all the requisite factors and make the difficult land use planning and zoning decisions to ensure that new development is supported by the infrastructure and utilities required to maintain appropriate levels of public services, including police and fire services, parklands and public open spaces, transportation, parking, and schools. The specific needs and challenges facing every California community vary greatly and therefore require significant input and leadership from local government to achieve best outcomes on land use planning and zoning issues, including the provision of affordable housing and protecting the environment.
(c) The State Legislature cannot adequately consider or address the unique impacts of land use planning and zoning laws on every local community, and recent state laws designed to require local governments to increase housing density and encourage the production of more market rate housing by minimizing public input and eliminating environmental review will not solve our affordable housing crisis. In fact, these state laws will harm communities by escalating housing costs and increasing property tax burdens instead of encouraging collaboration with local government to produce more affordable housing. (d) The purpose of this measure is to protect the ability of local communities to make local land use planning and zoning decisions, and to clarify the process to resolve conflicts between current or future state and local land use planning and zoning laws. One size does not fit all, and recent statewide land use and zoning laws will do great harm without significant input and participation from local communities. Home rule is a well-established principle, and local land use planning or zoning initiatives approved by voters shall not be nullified or superseded by the actions of any local or state legislative body. (e) This constitutional amendment is expressly intended to authorize local land use planning and zoning law to override conflicting state law while ensuring that specified laws remain in full force and effect.
SEC. 2. Section 3.5 is added to Article XI of the California Constitution, to read:
SEC. 3.5. For purposes of this article:
(a) “Land use planning and zoning law” means any law, whether adopted or put into effect by charter, ordinance, regulation, local initiative, or other action that accomplishes any of the following:
(1) Eliminates or restricts a city or county’s discretion to establish or change the zoning designation of any parcel within its jurisdiction. (2) Requires a city or county to review, approve, or deny a development application on a streamlined, ministerial, or expedited basis if the project meets a specified criteria.
(3) Approves or denies a development or subdivision of a parcel. (4) Imposes any restriction on the ability of a city or county to deny a development project or subdivision of a parcel.
(5) Establishes the procedure for establishing or changing the zoning designation of any parcel within its jurisdiction.
(6) Establishes the procedure or timing for reviewing and approving development applications.
(b) “Covered state statute” means a state law that addresses a matter of statewide concern rather than a municipal affair, as that term is used in Section 5 of this article, and relates to any of the following:
(1) The protection of the environment or natural resources, including, but not limited to any of the following:
(A) The California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and California Environmental Quality Act Guidelines (Chapter 3 (commencing with Section 15000) of Division 6 of Title 14 of the California Code of Regulations).
(B) The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code). (C) The California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code).
(D) The Porter-Cologne Water Quality Act (Division 7 (commencing with Section 13000) of the Water Code).
(E) The Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing with Section 2710) of Division 2 of the Public Resources Code). (F) Pollution control or environmental justice laws, rules, or regulations. (2) The protection of health and safety, including but not limited to, the development of contaminated sites and regulation of hazardous material storage sites.
(3) Emergency response to natural disasters and disaster planning and recovery.
(4) The regulation of the physical structure and the construction of buildings. (5) The regulation of residential or commercial rents and landlord-tenant relations, including the Ellis Act (Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 of the Government Code) and Costa-Hawkins Rental Housing Act (Chapter 2.7 (commencing with Section 1954.50) of Title 5 of Part 4 of Division 3 of the Civil Code).
(6) The siting of a power generating facility capable of generating more than 50 megawatts of electricity and the California Public Utilities Commission has determined that a need exists at that location and that the facility addresses a matter of statewide concern.
(7) (A) The development or construction of a water, communication, or transportation infrastructure project for which the Legislature lists the specific reasons explaining how the project addresses the statewide concern and declares that the development is in the best interests of the state. (B) For purposes of this paragraph, a transportation infrastructure project does not include a transit-oriented development project, whether residential, commercial, or mixed-use.
(8) Fair housing matters, including, but not limited to the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), prohibitions against discrimination, or affirmatively furthering fair housing. (9) Reporting and planning requirements, provided that the requirement does not otherwise impact the ability of a city or county to adopt, or put into effect, a land use planning and zoning law described in paragraph (1). Reporting and planning requirements imposed pursuant to this paragraph shall apply uniformly to all cities and counties and shall not discriminate amongst cities or counties based on voluntary compliance with any land use planning and zoning law adopted by the state.
SEC. 3. Section 5.5 is added to Article XI of the California Constitution, to read:
SEC. 5.5. (a) Except as provided in subdivision (b), in the event of a conflict with a state statute, a land use planning and zoning law within the boundaries of the city shall be deemed a municipal affair within the meaning of Section 5 and shall prevail over a conflicting state statute.
(b) A covered state statute shall prevail over conflicting land use planning and zoning laws, provided that the Legislature makes a finding that the covered state statute addresses a matter of statewide concern.
(c) (1) State funding appropriated before the effective date of this section shall not be modified due to a city preempting any state law pursuant to this section.
(2) State funding appropriated after the effective date of this section shall not discriminate in favor of, or give any preference to, a city that voluntarily complies with state-adopted land use planning and zoning laws. (d) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 4. Section 7 of Article XI of the California Constitution is amended to read:
SEC. 7. (a) (1) A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. that are not, except as provided in subdivision (b), in conflict with general laws.
(2) A county or city shall not supersede or otherwise interfere with any voter approved local initiative.
(b) (1) Except as provided in paragraph (2), a land use planning and zoning law within the boundaries of the county or city shall prevail over conflicting general laws.
(2) A covered state statute shall prevail over conflicting land use planning and zoning laws, provided that the Legislature makes a finding that the covered state statute addresses a matter of statewide concern.
(c) (1) State funding appropriated before the effective date of this section shall not be modified due to a city or county preempting any state law pursuant to this section.
(2) State funding appropriated after the effective date of this section shall not discriminate in favor of, or give any preference to, a city or county that voluntarily complies with state-adopted land use planning and zoning laws. (d) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 5. Article XXXIV of the California Constitution is repealed.
Agenda Item: 8(b)
AGENDA REPORT
TO: HONORABLE MAYOR AND COUNCILMEMBERS
FROM: REINA J. SCHWARTZ, CITY MANAGER
DATE: JANUARY 17, 2023
SUBJECT: RESOLUTION APPROVING AN EMPLOYMENT AGREEMENT FOR AN INTERIM CITY MANAGER WITH ROWLAND BERNAL, JR.
RECOMMENDATION
It is recommended the City Council adopt the attached Resolution authorizing, approving, and making the findings to employ Mr. Rowland Bernal, Jr., a CalPERS retired annuitant, as the Interim Clayton City Manager beginning January 18, 2023.
BACKGROUND
At the end of October 2022, the current Clayton City Manager informed the Clayton City Council that her last day with the City of Clayton would be February 3, 2023. At the November 15, 2022, City Council meeting, the Council established an Ad Hoc Committee for the City Manager recruitment. That Ad Hoc met on November 28th and selected the firm of Bob Murray and Associates to conduct the City Manager recruitment. Even with an efficient search process, there will be a period of time after February 3, 2023, when an Interim City Manager is required.
On December 20, 2022, the City Council interviewed two candidates for Interim City Manager and selected Mr. Rowland Bernal, Jr. as Interim City Manager and directed that an employment agreement with Mr. Bernal be brought back to the City Council for approval.
Mr. Bernal is the retired city manager for the City of Antioch who expressed interest in assisting the Clayton City Council during this interim period.
FISCAL IMPACT
By CalPERS and state statutes, a CalPERS-retired annuitant cannot receive compensation for such interim services with a CalPERS public agency other than an hourly rate within the existing salary range for the incumbent position. The agreed-upon hourly rate is the current maximum hourly rate for the city manager position in Clayton, which is $106.47 per hour. No other employment benefits or compensation is permitted; therefore, there are sufficient funds included in the adopted FY 2022/23 City Budget for this interim appointment and professional services.
Attachments: City Resolution [2 pp.]
Employment Agreement for Interim City Manager [7 pp.]
____________________________________________________________________________________ Resolution No. ##-2023 Interim CM 1 January 17, 2023
RESOLUTION NO. ##-2023
A RESOLUTION CERTIFYING FINDINGS AND APPROVING AN EMPLOYMENT
AGREEMENT FOR THE INTERIM EMPLOYMENT OF CALPERS RETIRED ANNUITANT ROWLAND BERNAL, JR. AS INTERIM CLAYTON CITY MANAGER
THE CITY COUNCIL
City of Clayton, California
WHEREAS, the City of Clayton’s current City Manager will leave City service as of February 3, 2023 and while recruiting for a replacement City Manager, the Clayton City Council has need to retain an interim city manager; and
WHEREAS, the former City Manager of Antioch, CA, Rowland Bernal, Jr. expressed interest in assisting the Clayton City Council during this transition to serve as its interim city manager; and WHEREAS, in a duly noticed meeting of the City Council held on December 20, 2022, the Clayton City Council interviewed Mr. Bernal for the possible interim assignment with the conclusion it was of mutual benefit to both parties to employ him as Clayton’s Interim City Manager; and
WHEREAS, Mr. Bernal is a recently-retired CalPERS annuitant with the effective retirement date of December 2021 and is therefore eligible to accept post-retirement interim employment with CalPERS public agencies without the necessity of special findings for retired annuitants with less than 180 days since pension retirement date; and WHEREAS, the Clayton City Council, the City of Clayton, and Rowland Bernal, Jr. each represent and certify that Rowland Bernal, Jr. has not and will not receive a Golden Handshake or any other retirement-related incentive during this interim employment with the City of Clayton; and
WHEREAS, Mr. Bernal previously served as the Antioch City Manager from 2017 to 2021 and is therefore well suited and familiar with the incumbent needs and responsibilities required of an interim city manager while a permanent employee replacement is recruited and hired by the Clayton City Council, which executive search process is currently underway; and WHEREAS, the Clayton City Council does desire to appoint Rowland Bernal, Jr. as an interim appointed CalPERS retired annuitant to the vacant position of City Manager for the City of Clayton under Government Code section 21221(h), effective January 18, 2023; and WHEREAS, an eligible appointment under Government Code section 21221(h) requires an active, publicly-posted recruitment for a permanent replacement to the interim employment position; and
WHEREAS, the current status of this recruitment is that a professional services agreement with Bob Murray & Associates was executed on November 29, 2022 for executive recruitment services to assist in the search, screening and hiring of its next city manager by the Clayton City Council and the position has been posted through multiple channels; and WHEREAS, this section 21221(h) appointment shall only be made once pursuant to CalPERS regulations regarding employment of retired annuitants; ____________________________________________________________________________________ Resolution No. ##-2023 Interim CM 2 January 17, 2023
WHEREAS, the entire Employment Agreement, contract or appointment document between Rowland Bernal, Jr. and the City Council of Clayton has been reviewed by this body and is attached hereto as “Attachment 1” as if fully set forth in this Resolution; and WHEREAS, CalPERS related regulations and statutes require that no matters, issues, terms or conditions related to this interim employment and appointment of a CalPERS retired annuitant can be, have been or will be placed as a Consent Calendar item on a public agenda of the Clayton City Council; and
WHEREAS, the interim employment of Rowland Bernal, Jr. shall be limited to nine hundred and sixty (960) hours per fiscal year; and
WHEREAS, the public compensation paid to retired CalPERS annuitants cannot be less than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 to equal the hourly rate; and WHEREAS, the maximum base salary for Clayton City Manager position is $18,454 monthly and the associated hourly equivalent is $106.47; and
WHEREAS, the negotiated and determined hourly rate to be paid to Rowland Bernal, Jr. by the City of Clayton will be $106.47; and
WHEREAS, Rowland Bernal, Jr. has not and will not receive any other benefit, incentive, compensation in lieu of benefit or other form of compensation other than or in addition to this hourly pay rate.
NOW, THEREFORE, BE IT RESOLVED that the City Council of Clayton, California, does hereby certify, approve and authorize the nature of the temporary employment of Rowland Bernal, Jr. as described herein and detailed in the attached Employment Agreement document (“Attachment 1”), and this interim appointment is necessary to fill the position of City Manager for the City of Clayton beginning January 18, 2023 because this position is critical to maintaining the active, daily, and efficient public services provided to the citizens, businesses and development community of this city.
PASSED, APPROVED AND ADOPTED by the City Council of Clayton, California at a regular public meeting thereof held the 17th day of January 2023 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
THE CITY COUNCIL OF CLAYTON, CA
________________________________
Jeff Wan, Mayor
ATTEST:
_______________________________
Janet Calderon, City Clerk
Title 2 - ADMINISTRATION AND PERSONNEL
Chapter 2.10 CITY MANAGER
Clayton, California, Municipal Code Created: 2022-12-02 14:22:00 [EST] (Supp. No. 7)
Chapter 2.10 CITY MANAGER
Sections:
2.10.010 Office Created.
The creation of the office of the City Manager of the City of Clayton is hereby ratified and confirmed. The City Council appoints the City Manager and shall make the appointment wholly on the basis of such person's administrative and executive ability and qualifications. The City Manager holds office at the pleasure of the City Council. Whenever the words "Chief Executive Officer," "City Administrator," or "Administrative Officer" are used in the text of the Clayton Municipal Code, any City ordinance or resolution, City contracts or other documents, it shall mean and refer to the "City Manager."
(Ord. 329, 1997)
2.10.020 Residence.
The City Manager need not be a resident of the City, although his or her residence should be within easy daily commute of Clayton.
(Ord. 329, 1997)
2.10.030 Eligibility.
A member of the City Council is not eligible for appointment as City Manager until one year elapses after the Council member ceases to be a member of the Council.
(Ord. 320, 1997)
2.10.040 Bond.
The City Manager shall furnish a corporate surety bond approved by the City Council in such sum as the City Council determines. The bond shall be conditioned upon the faithful performance of the duties imposed upon the City Manager. The premium for the bond is a proper charge against the City. (Ord. 329, 1997)
2.10.050 Acting City Manager.
The City Manager shall designate one of the other officers or department heads of the City to serve as Acting City Manager during a short-term absence or disability of the City Manager. In the case of a long-term (more than thirty (30) working days) absence or disability of the City Manager, the City Council may designate a qualified person to perform the duties of the City Manager during the period of absence or disability of the City Manager.
The Acting City Manager shall furnish a corporate surety bond as in the case of the City Manager. (Ord. 329, 1997)
Created: 2022-12-02 14:22:00 [EST]
(Supp. No. 7)
2.10.060 Compensation.
The City Manager is entitled to such compensation and expense allowance as the City Council determines by resolution or motion.
(Ord. 329, 1997)
2.10.070 Powers and Duties.
The City Manager is the administrative head of the government of the City, subject to the direction and control of the City Council. The City Manager is responsible for the efficient administration of all the affairs of the City that are under his or her control. In addition to his or her general powers as administrative head and not as a limitation on them, the City Manager shall:
A. Devote his or her entire time to carrying out the City Manager's official duties.
B. Act as ex-officio member of all boards and commissions.
C. Enforce the laws and ordinances of the City and see that the franchises, contracts, permits, and privileges granted by the Council are faithfully observed.
D. Control, order and give directions to all subordinate officers and employees of the City.
E. Except as may be limited by provisions of the City Manager's employment agreement, appoint, remove, promote, and demote each officer and employee of the City, excepting the City Attorney and City Treasurer who serve at the pleasure of the Council, subject to personnel ordinances, rules and regulations adopted by the Council; appointment of the City Clerk shall be subject to Council approval.
F. Conduct studies and effect such administrative organization and reorganization of offices, positions and units under his or her direction as are in the interest of efficient, effective, and economical conduct of the City's business;
G. Recommend to the Council for adoption such measures and ordinances as deemed necessary.
H. Attend all meetings of the Council, except when excused by the Council, and except when the City Manager's removal is under consideration;
I. Keep the Council advised at all times as to the financial condition and needs of the City.
J. Prepare and submit proposed annual budgets to the Council for its approval.
K. Purchase, or supervise the purchase of, all supplies and services needed by the City.
L. Review all proposed expenditures from City funds, and recommend approval by the Council of all proper expenditures;
M. Investigate the affairs of the City and the performance of all employees and contractors, and make or recommend appropriate adjustments to improve efficiency and effectiveness.
N. Investigate all complaints of matters concerning the administration of the City government and of the services for which the City is responsible.
O. Exercise general supervision over all public buildings, public parks, and all other public property under the control and jurisdiction of the Council.
P. Negotiate such contracts and leases as the Council may authorize.
Created: 2022-12-02 14:22:00 [EST]
(Supp. No. 7)
Q. Sign for the City approved contracts, agreements and leases which do not require the signature of the Mayor.
R. Maintain liaison with other City officials and with other municipal, district, County, State, and Federal agencies to ensure proper coordination of activities.
S. Submit special reports in writing to the City Council in answer to any request for information filed with the City Manager by the City Council.
T. Perform such other duties and exercise such other powers as the City Council delegates to him or her. (Ord. 329, 1997; Ord. 339, 1998)
2.10.080 Council-Manager Relations.
Each member of the City Council shall deal with the administrative services of the City through the City Manager, except for the purpose of inquiry. Neither the Council nor a member of the Council shall give orders or instructions to subordinates of the City Manager. The City Manager shall take orders and instructions from the Council only when the Council is sitting in a duly convened meeting, and no individual Council member shall give orders or instruction to the City Manager other than reasonable requests for information on City matters. The Council retains the sole power of being the policy making and legislative body for the City. (Ord. 329, 1997)
2.10.090 Departmental Cooperation.
Each subordinate officer and the City Clerk, City Treasurer, and City Attorney shall assist the City Manager in administering the affairs of the City efficiently, economically, and harmoniously. (Ord. 329, 1997)
2.10.100 Removal of City Manager.
The City Manager may be removed from office by a resolution of the Council. Pending removal, the Council may suspend the City Manager from office. The action of the Council in suspending or removing the City Manager shall be final and conclusive, but during such suspension, he or she shall receive regular compensation until the effective date of removal from office. In removing the City Manager, the Council has absolute discretion and its action is final and conclusive and does not depend whatsoever upon any showing of cause for such removal. (Ord. 329, 1997)
2.10.110 Employment Agreement.
The City Council may enter into an employment agreement with the City Manager providing for termination and severance pay, and delineating additional terms and conditions of employment not inconsistent with foregoing sections.
(Ord. 329, 1997)
-1-
EMPLOYMENT AGREEMENT FOR
INTERIM CITY MANAGER
THIS AGREEMENT is made and entered into this 17th day of January 2023 by and between the City of Clayton (“CITY”) and Rowland Bernal, Jr (“EMPLOYEE”). In consideration of the mutual covenants and agreements set forth herein, the Parties agree as follows:
RECITALS
This Agreement is made and entered into with respect to the following facts:
A. CITY seeks to engage EMPLOYEE on a temporary basis as Interim City Manager, in accordance with the terms set forth in this Agreement; and B. EMPLOYEE desires to accept employment as Interim City Manager in consideration of and subject to the terms, conditions and benefits set forth in this Agreement; and C. EMPLOYEE represents he is a retired annuitant of CalPERS within the meaning of Government Code §§ 7522.56 and 21224 (“Statutes”) and acknowledges that his compensation is statutorily limited as provided in Government Code § 21224. EMPLOYEE represents that, as of the effective date of this Agreement, he has not worked for another CalPERS state or contracting agency as a retired annuitant during Fiscal Year 2022/23 and that he therefore acknowledges that he can work up to 960 hours for the CITY, a state agency or other CalPERS contracting agencies (collectively "CalPERS Agencies") during the 2022/23 fiscal year. EMPLOYEE represents he has not received unemployment compensation from any CalPERS agencies during the 12-month period preceding the effective date of this Agreement; and
D. CITY has determined it is necessary to hire EMPLOYEE, a retired annuitant, because the City will need to recruit for a new City Manager, and EMPLOYEE, by virtue of his experience in public management, including as a previous city manager for another public agency within California, has the necessary skills and institutional knowledge to assist as needed.
NOW, THEREFORE, CITY and EMPLOYEE, in consideration of the mutual covenants and agreements herein contained, agree as follows:
1. APPOINTMENT OF EMPLOYEE.
EMPLOYEE shall be appointed as the Interim City Manager for the benefit of the CITY under the terms of this Agreement.
2. POSITION AND DUTIES. The CITY hereby agrees to appoint EMPLOYEE to perform, on the compensation basis set forth in Paragraph 4, the duties and functions set forth in Exhibit A attached hereto, and to perform other legally permissible duties and such functions as the City Council shall from time-to-time assign:
-2-
The City Council shall have the authority to determine the specific duties and functions which EMPLOYEE shall perform under this Agreement and the means and manner by which EMPLOYEE shall perform those duties and functions. EMPLOYEE agrees to devote all of his business time, skill, attention, and best efforts to the discharge of the duties and functions assigned to him under this Agreement and by the City Council.
3. TERM, TERMINATION AND AT-WILL STATUS.
This Agreement shall become effective upon the date executed both by EMPLOYEE and the Mayor of the CITY, which date shall be the date first referenced above.
EMPLOYEE shall commence the performance of duties under this Agreement on January 18, 2023 or at such later date as the parties hereto shall agree in writing ("Commencement Date").
This Agreement shall expire as of the first of the following to occur: (i) upon EMPLOYEE working his 960th hour for the CITY during fiscal year 2022/23 or his 960th hour in any subsequent fiscal year whichever comes later; or (ii) upon termination of the Agreement by either EMPLOYEE or CITY as provided below.
EMPLOYEE acknowledges he is an at-will, temporary employee of CITY who shall serve at the pleasure of the City Council at all times during the period of his service hereunder and shall be subject to termination by the City Council at any time without advance notice and without cause. Except as required by law, the terms of CITY's personnel rules, policies, regulations, procedures, ordinances, and resolutions regarding personnel (collectively "Personnel Policies"), as they may be amended or supplemented from time to time, shall not apply to EMPLOYEE, and nothing in this Agreement is intended to, or does, confer upon EMPLOYEE any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Council to terminate his employment.
Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of EMPLOYEE and nothing in this Agreement shall prevent, limit or otherwise interfere with the right of EMPLOYEE to resign at any time from this position with CITY.
4. COMPENSATION. The CITY agrees to provide the following compensation to EMPLOYEE for the services listed in this Agreement:
Beginning on January 18, 2023, CITY agrees to pay to EMPLOYEE for services rendered under this Agreement, the hourly rate of $106.47. Other than the compensation described above, Employee will receive no other benefits, incentives, compensation in lieu of benefits, or any other form of compensation. Employee understands and agrees he is not, and will not be, eligible to receive any benefits from the CITY, including any CITY group plan for hospital, surgical, or medical insurance, any CITY retirement program, or any paid holidays, vacation, sick leave, or other leave, with or without pay, or any other job benefits available to an employee in the regular service of the CITY, except for Workers’ Compensation Insurance coverage or similar benefits required by state or federal law.
5. EXPENSES. CITY shall reimburse EMPLOYEE for authorized, reasonable and necessary expenses, including travel expenses incurred by EMPLOYEE in the performance of his duties pursuant to this Agreement. EMPLOYEE shall document and claim said reimbursement for such travel in the manner and forms required by the CITY. All reimbursements shall be for actual expenses and shall be subject to and in accordance with California and federal law and CITY’s adopted reimbursement policies. Such reimbursements -3-
shall not be reported to CalPERS. Other than as specifically provided herein, EMPLOYEE shall receive no other compensation or reimbursements for expenses incurred by him in performance of this Agreement.
6. NOTICE. Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified or by delivery of same to the custody of the United States Postal Service, or its lawful successor, postage prepared and addressed as follows:
CITY
6000 Heritage Trail
Clayton, CA 94517
Attention: Mayor
EMPLOYEE
Rowland Bernal, Jr.
(Address in Employee’s Personnel File)
7. HOURS OF WORK. EMPLOYEE shall devote the time necessary to adequately perform his duties pursuant to this Agreement. The parties anticipate that EMPLOYEE will work a sufficient number of hours per week allocated between regular business hours and hours outside of regular business hours including, without limitation, attendance at regular and special City Council meetings, community events and other CITY functions as the City Council may direct. However, in no event shall EMPLOYEE be required to work in excess of 960 hours in fiscal year 2022/23 and 960 hours per each subsequent fiscal year for CITY, including hours worked for other CalPERS Agencies during such fiscal years.
EMPLOYEE’S position shall be deemed a NON-EXEMPT position under California wage and hour law. The position is a temporary, hourly assignment which shall not exceed 40 hours per week. The CITY, through the City Council, will assign Employee hours to work. Due to the nature of the position, it is understood that the workday and work week hours may vary, however Employee shall not work overtime.
It is the intent of the parties to compensate EMPLOYEE only to the extent permitted under the Statutes and corresponding CalPERS regulations and policy statements. The Rate of Pay set forth above is based on the salary limitations established by CalPERS and is calculated by taking the hourly rate based on the maximum monthly base salary paid to employees performing similar duties as listed on a publicly available pay schedule for such employees. The highest CITY compensation for comparable duties is $221,450 annually divided by 2,080 to equal a maximum hourly rate of $106.47. The EMPLOYEE shall not be entitled to any additional compensation or benefits.
EMPLOYEE will comply with all applicable CalPERS regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY to CalPERS as may be required. CITY shall assist in any such reporting obligations to CalPERS. Additionally, EMPLOYEE shall keep CITY continually informed of any hours worked by EMPLOYEE for other CalPERS Agencies during the term of this Agreement.
Agenda Item: 8(c)
AGENDA REPORT
TO: HONORABLE MAYOR AND COUNCILMEMBERS
FROM: REINA J. SCHWARTZ, CITY MANAGER
DATE: JANUARY 17, 2023
SUBJECT: ADOPT A RESOLUTION APPROVING AN ADDENDUM TO THE TERMS AND CONDITIONS OF EMPLOYMENT FOR CLAYTON’S MISCELLANEOUS
EMPLOYEES
___________________________________________________________________________
RECOMMENDATION
It is recommended the City Council adopt the attached Resolution approving an Addendum to the existing terms and conditions of employment with the City’s Undesignated Miscellaneous City Employees Unit, including reflecting a previously approved cost-of-living adjustment, increasing the maximum allowable vacation accrual, and extending the Terms & Conditions through June 30, 2023.
BACKGROUND
In October 2020, the City Council approved Terms & Conditions of Employment for the City’s Undesignated Miscellaneous Employees covering the period July 1, 2020, through June 30, 2022. In June 2022, the City Council approved an Operating Budget and Salary Schedule for FY2022/23 that reflected approval of a three percent (3%) cost-of-living adjustment for the Miscellaneous Unit.
DISCUSSION
Although the City Council approved a cost-of-living adjustment for the Miscellaneous Unit effective July 1, 2022, the existing Terms & Conditions of Employment for the Unit has not been amended or extended to reflect that approved increase. As the City begins to look forward to the FY2023/24 budget and transitions to a new City Manager, it is prudent to approve an Addendum to the Terms & Conditions document so that it is clear what conditions apply to the Miscellaneous Unit.
Only one other change is reflected in the proposed Addendum, increasing the maximum vacation accrual from 18 times the monthly accrual rate to 24 times the monthly accrual rate; essentially capping the accrual at two years accrual of vacation hours maximum rather than 18 months. This is a change that was made within the Police Officers Association Subject: Resolution Approving a One-Year Addendum to the Miscellaneous Employees Terms & Conditions of Employment
Date: January 17, 2023
Agreement for the period of July 1, 2021 – June 30, 2024. Amending the Terms & Conditions for Miscellaneous employees to reflect the same maximum accrual would align the two agreements.
FISCAL IMPACT
The existing budget for FY2022/23 already reflects the impact of the three percent cost-ofliving adjustment approved by the City Council effective July 1, 2022, so there is no additional fiscal impact from memorializing the increase via the Addendum. While there could be a fiscal impact of increasing the maximum vacation accrual, it cannot be easily estimated as it depends entirely on how long employees stay with the organization and how much vacation they may have on the books when they leave City service. There are currently only one or two employees who have reached their maximum accrual in the past or might reach it in the future and would have a greater dollar impact at the time they leave City service. For context, for an average employee who has been with the City for ten years, the difference in an 18-month maximum accrual and a 24-month maximum accrual would be approximately $3,000-$5,000 as a one-time expense. It is not anticipated that this would have a significant budget impact going forward.
Attachments: 1. City Resolution with “Exhibit A”, Addendum 1
2. Miscellaneous Employees Terms & Conditions of Employment July 1, 2020-June 30, 2022 Reso ##-2023 Misc EEs Addendum 1 January 17, 2023
RESOLUTION NO. ##-2023
A RESOLUTION APPROVING ADDENDUM NO. 1 TO
THE TERMS & CONDITIONS OF EMPLOYMENT FOR THE CITY OF CLAYTON’S UNDESIGNATED MISCELLANEOUS EMPLOYEES EFFECTIVE JULY 1, 2022 – JUNE 30, 2023
THE CITY COUNCIL
City of Clayton, California
WHEREAS, the current Terms and Conditions of Employment for the City of Clayton’s Undesignated Miscellaneous City Employees (Terms & Conditions) covered the period from July 1, 2020 through June 30, 2022;
WHEREAS, although the Terms & Conditions expired on June 30, 2022, the City has continued to follow the prior Terms & Conditions with one exception; WHEREAS, the City Council approved a three-percent cost of living adjustment for the Undesignated Miscellaneous Employees effective July 1, 2022 which was not reflected in the prior Terms & Conditions;
WHEREAS, the Clayton Police Officer’s Association Memorandum of Understanding effective July 1, 2021 though June 30, 2024 increased the maximum vacation accrual allowed to 24 times the current monthly accrual, rather than the 18 times the current monthly accrual;
WHEREAS, aligning the Undesignated Miscellaneous Employees Terms & Conditions with the Clayton POA MOU in terms of maximum vacation accrual is beneficial from an equity and retention standpoint;
WHEREAS, it is advantageous to extend the existing Terms & Conditions for the Undesignated Miscellaneous Employees to ensure that current work conditions are memorialized in a current document; and
WHEREAS, the current FY2022/23 budget already accounts for the three percent cost of living adjustment for the Miscellaneous Employees.
NOW, THEREFORE, BE IT RESOLVED that the City Council of Clayton, California does hereby accept and approve Addendum 1 (“Exhibit A”) to the Terms and Conditions for the City of Clayton’s Undesignated Miscellaneous City Employees extending the Terms & Conditions through June 30, 2023 and does hereby authorize and instruct the City Manager to implement the agreed-upon terms and conditions accordingly.
Reso ##-2023 Misc EEs Addendum 2 January 17, 2023
PASSED, APPROVED AND ADOPTED by the City Council of Clayton, California at a regular public meeting thereof held on the 17th day of January 2023:
AYES:
NOES:
ABSTAIN:
ABSENT:
THE CITY COUNCIL OF CLAYTON, CA
________________________________
Jeff Wan, Mayor
ATTEST:
___________________________________
Janet Calderon, City Clerk
1 ADDENDUM 1
This Addendum 1 is a modification to that 2-year Memorandum of Agreement (MOA) by and between the City of Clayton (“City”) and the Undesignated Miscellaneous City Employees Unit, said MOA previously approved and authorized by the Clayton City Council at a regular public meeting thereof held on October 6, 2020. Addendum No. 1 does hereby modify only the following employment terms and conditions sections of the underlying MOA as herein contained below:
A. ARTICLE 1: PREAMBLE
Article 1 is amended to extend the term of the agreement through June 30, 2023.
B. ARTICLE 5: COMPENSATION
Article 5 is amended to reflect the three percent (3%) cost-of-living adjustment granted by the City Council to members of this unit beginning July 1, 2022 as memorialized in Resolution 55-2022 and the FY2022/23 Salary Schedule.
C: ARTICLE 8: HOLIDAYS AND LEAVES
Section 8.4 (E) is amended to allow for a maximum number of vacation hours accrued equal to 24 times the employee’s current monthly accrual rate.
D: ARTICLE 13: TERM OF AGREEMENT
Addendum 1 amends the term of the agreement to extend through June 30, 2023.
E. All other and existing terms and conditions of the underlying Memorandum of Agreement (MOA) by and between the parties remain in full force and effect through June 30, 2023, to the extent such are not in conflict with the provisions of Addendum 1 outlined above. In the event such a conflict arises, Addendum 1’s terms and conditions shall and do hereby prevail in effect and implementation.
IN WITNESS THEREOF, this Addendum 1 is approved this 17th day of January 2023, pursuant to the provisions of California Government Code Section 3500, et. seq., for presentation to and recommendation for approval by the City Council of the City of Clayton, CA.
CITY OF CLAYTON LABOR NEGOTIATOR
By:
________________________________ Date: ________________ Reina J. Schwartz, City Manager
# # # # #
GHAD Agenda Item: 3(a)
______________________________________________________________________________________ GHAD Minutes December 6, 2022 Page 1
MINUTES
SPECIAL MEETING
OAKHURST GEOLOGICAL HAZARD ABATEMENT DISTRICT (GHAD)
December 6, 2022
1. CALL TO ORDER AND ROLL CALL – the meeting was called to order at 8:06 p.m. by Chair Diaz. Board Members present: Chair Diaz. Board Members Cloven, Wan, Tillman, and Trupiano. Board Members absent:
None. Staff present: City Manager Reina Schwartz, Legal Counsel Mala Subramanian, and Secretary Janet Calderon.
2. PUBLIC COMMENTS – None.
3. CONSENT CALENDAR
It was moved by Board Member Tillman, seconded by Board Member Cloven, to approve the Consent Calendar as submitted. (Passed 5-0). (a) Approve the Board of Directors’ minutes for its regular meeting July 19, 2022. (Secretary)
4. ANNUAL REORGANIZATION OF THE BOARD OF DIRECTORS
(a) Nominations and election of Chair (Chair Diaz to conduct the election) Chair Diaz opened the floor to nominations for Chair in 2023.
Board Member Wan nominated Kim Trupiano for the office of Chairperson. No other nominations were received.
Chair Diaz called for the vote to elect Kim Trupiano as GHAD Chair.
Motion passed (5-0 vote).
(b) Nominations and election of Vice Chair (New Chair to conduct the election).
Chair Trupiano opened the floor to nominations for Vice Chair in 2023.
Board Member Tillman nominated Jeff Wan for the office of Vice Chair.
Board Member Wan declined. Board Member Wan nominated Board Member Cloven. No other nominations were received.
Chair Trupiano called for the vote to elect Peter Cloven as GHAD Vice Chair. Motion passed (5-0 vote).
GHAD Agenda Item: 3(a)
______________________________________________________________________________________ GHAD Minutes December 6, 2022 Page 2
5. PUBLIC HEARINGS - None.
6. ACTION ITEMS – None.
7. BOARD ITEMS – limited to requests and directives for future meetings.
6. BOARD ITEMS
Boardmember Wan requested the City’s website should include the City Engineers scheduled work, including completion dates, and specify areas of responsibility in the Oakhurst Geological Hazard Abatement District.
7. ADJOURNMENT - on call by Chairperson Trupiano the Board meeting adjourned at 8:13 p.m.
# # # #
Respectfully submitted,
________________________
Janet Calderon, Secretary
Approved by the Board of Directors
Oakhurst Geological Hazard Abatement District
________________________________
Kim Trupiano, Chair
GHAD Agenda Item: 3(b)
GHAD REPORT
TO: HONORABLE DISTRICT DIRECTORS
FROM: REINA J. SCHWARTZ, CITY MANAGER
DATE: January 17, 2023
SUBJECT: ADOPT A RESOLUTION APPROVING A PROFESSIONAL SERVICES
AGREEMENT WITH THEIS ENGINEERING & ASSOCIATES THROUGH
JUNE 30, 2024 WITH UP TO FOUR ONE-YEAR RENEWALS, FOR
ASSSESSMENT DISTRICT MANAGEMENT SERVICES FOR THE
OAKHURST GEOLOGICAL HAZARD ABATEMENT DISTRICT,
CONTINUING THE APPOINTMENT OF LARRY THEIS, PE AS THE
GENERAL MANAGER FOR THE OAKHURST GEOLOGICAL HAZARD
ABATEMENT DISTRICT, AND AUTHORIZING THE CITY MANAGER TO
EXECUTE THE AGREEMENT
___________________________________________________________________________
RECOMMENDATION
It is recommended that the Oakhurst GHAD Board of Directors, by Resolution, approve a Professional Services Agreement with Theis Engineering & Associates for assessment district management services for an initial term of January 20, 2023 through June 30, 2024 with up to four one-year renewals authorized by mutual agreement of the parties, continue the appointment of Larry Theis, PE as the General Manager for the Oakhurst Geological Hazard Abatement District, and authorize the City Manager to execute the Agreement.
BACKGROUND
In March 2022, the City Council approved a professional services agreement for City Engineering services and Assessment District Management Services for the Oakhurst Geological Hazard Abatement District with the firm Anchor CM and appointed Larry Theis, PE of that firm as District General Manager.
Recently, Mr. Theis has established his own firm, Theis Engineering & Associates. Staff has provided notice to Anchor CM of the City’s intent to retain Larry Theis as the City Engineer/Oakhurst GHAD General Manager and its agreement with Anchor CM will terminate on January 20, 2023. To continue with Larry Theis, PE as Oakhurst GHAD General Manager, staff recommend approval of a new agreement with Theis Engineering & Associates under the same terms and conditions as the existing agreement with Anchor CM.
Subject: Adopt a Resolution of the City Council of the City of Clayton approving a professional services agreement with Theis Engineering & Associates for Assessment District Management Services, Authorizing the City Manager to Execute the Agreement, Continuing the Appointment of Larry Theis, PE as General Manager for the Oakhurst GHAD and Authorizing the City Manager to Execute the Agreement Date: January 17, 2023
DISCUSSION
In early 2022, the City went through a comprehensive RFP process to select a new firm for City Engineer and Oakhurst Geological Hazard Abatement District (GHAD) services. Based on that process, the City awarded the firm of Anchor CM with the agreement and the principal with Anchor CM who was named to serve as the City Engineer/Oakhurst GHAD General Manager for the City of Clayton was Larry Theis, PE. Prior to joining Anchor, Mr. Theis was the Public Works Director and City Engineer for the City of Orinda.
Since the contract began, Mr. Theis has done an excellent job on behalf of the City of Clayton, bringing a number of projects forward for completion and providing a more comprehensive approach to Clayton’s Engineering needs.
The City was notified on Tuesday January 10th that Mr. Theis was establishing his own firm.
Although the City’s experience with Anchor CM has been positive and productive, it is in the City’s best interest to retain Mr. Theis as City Engineer/Oakhurst GHAD General Manager and avoid the disruption of changing City Engineers.
FINANCIAL IMPACT
Theis Engineering & Associates is proposing to provide services to Clayton under the same terms and conditions as has been the case under Anchor CM. This means that there is no financial change associated with executing the new agreement.
Attachment:1: Resolution
Attachment 2 Agreement with Theis Engineering & Associates Attachment 3: Consultant Proposal
GHAD Resolution ##-2023 General Mgr January 17, 2023
GHAD RESOLUTION NO. ##-2023
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE OAKHURST
GEOLOGICAL HAZARD ABATEMENT DISTRICT APPROVING A PROFESSIONAL
SERVICES AGREEMENT WITH THEIS ENGINEERING & ASSOCIATES FOR ASSESSMENT DISTRICT MANAGEMENT SERVICES THROUGH JUNE 30, 2024
WITH UP TO FOUR ONE-YEAR RENEWALS, CONTINUING THE APPOINTMENT OF
LARRY THEIS, PE AS THE GENERAL MANAGER FOR THE OAKHURST
GEOLOGICAL HAZARD ABATEMENT DISTRICT, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE AGREEMENT
THE BOARD OF DIRECTORS
Oakhurst Geological Hazard Abatement District
Clayton, California
WHEREAS, in March 2022, the City Council approved a professional services agreement with Anchor CM for Assessment District Management Services and named Larry Theis, PE as the General Manager for the Oakhurst Geological Hazard Abatement District; WHEREAS, Mr. Theis has now started his own firm, Theis Engineering & Associates; WHEREAS, Mr. Theis has performed well as the Oakhurst GHAD General Manager and the City desires to retain Mr. Theis as the GHAD General Manager; and WHEREAS, the City provided notice to Anchor CM of its intent to terminate the prior agreement effective January 20, 2023.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of the Oakhurst Geological Hazard Abatement District, Clayton, California, does hereby:
1. Approve a Professional Services Agreement with Theis Engineering & Associates for assessment district management services including serving as General Manager for the period of January 20, 2023 through June 30, 2024 with up to four one-year extensions authorized by mutual agreement of the parties;
2. Continue the appointment of Larry Theis, PE as General Manager for the Oakhurst Geological Hazard Abatement District; and
3. Authorize the City Manager to execute the Agreement.
PASSED, APPROVED AND ADOPTED by the Board of Directors of the Oakhurst Geological Hazard Abatement District at a regular public meeting thereof held on the 17th day of January 2023, by the following vote:
GHAD Resolution ##-2023 General Mgr January 17, 2023
AYES:
NOES:
ABSENT:
ABSTAIN:
Oakhurst Geological Hazard Abatement District
BOARD OF DIRECTORS
Kim Trupiano, Chairperson
ATTEST:
Janet Calderon, Secretary
1 CITY OF CLAYTON
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made and entered into as of March 15, 2022 by and between the City of Clayton, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 6000 Heritage Trail, Clayton, California 94517 (“City”), and Theis Engineering & Associates, a California S-Corporation with its principal place of business at 4309 Rose Lane Concord CA 94518 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.
RECITALS
A. City is a public agency of the State of California and is in need of professional services related to City engineering and assessment district services (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Services.
Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”
2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B”, Consultant’s Proposal. b. The Schedule of Charges may be adjusted by mutual agreement of the City and the Consultant once annually beginning July 1, 2023 and each July 1st thereafter (effective July 1st through the following June 30th). The rates and monthly fee shall be adjusted by the CPIU San Francisco-Oakland-Hayward, April to April. In no case shall the adjustment be less than 3% annually or more than 5% annually.
c. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed including work completed and hours of services rendered by Consultant. Payments to Consultant for work performed will be made on a monthly billing basis.
2 3. Additional Work.
If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
4. Maintenance of Records.
Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
5. Time of Performance.
Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). The initial term of this Agreement is January 18, 2023 through June 30, 2024. The Agreement may be extended by written amendment and mutual agreement of the parties for up to four additional one-year terms.
6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the nonperforming party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.
7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
3 8. Standard of Care
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.
9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
10. Independent Consultant
Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.
11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
(1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or equivalent.
(iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Contract 4 (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, the City Council and each member of the City Council, its officers, employees, agents and City designated volunteers additional insured status.
(iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
c. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period 5 required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.
d. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein.
This insurance shall be endorsed to include limited contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/$2,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
6 g. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
h. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
7 i. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section.
Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
12. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, and employees free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
b. To the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s obligations under the above indemnity shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, but shall not otherwise be reduced. If Consultant’s obligations to defend, indemnify, and/or hold harmless arise out of Consultant’s performance of “design professional services” (as that term is defined under Civil Code section 2782.8), then upon Consultant obtaining a final 8 adjudication that liability under a claim is caused by the comparative active negligence or willful misconduct of the City, Consultant’s obligations shall be reduced in proportion to the established comparative liability of the City and shall not exceed the Consultant’s proportionate percentage of fault.
13. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.
9 14. Verification of Employment Eligibility.
By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
15. Reserved.
16. Laws and Venue.
This Agreement shall be interpreted in accordance with the laws of the State of California.
If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Contra Costa, State of California. 17 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
18 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
19. Organization
Consultant shall assign Larry Theis, PE as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
20. Limitation of Agreement.
This Agreement is limited to and includes only the work included in the Project described above.
10 21. Notice
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:
CITY:
City of Clayton
6000 Heritage Trail
Clayton, CA 94517
Attn: City Manager
CONSULTANT:
Theis Engineering & Associates
4309 Rose Lane
Concord, CA 94518
Attn: Larry Theis, PE
and shall be effective upon receipt thereof.
22. Third Party Rights
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
23. Equal Opportunity Employment.
Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
24. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement.
25. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal.
26. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, 11 Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
27. Non-Waiver
None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing.
28. Time of Essence
Time is of the essence for each and every provision of this Agreement.
29. City’s Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
30. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
31. Disputes
In the event of any dispute between the Parties related to this Agreement, the Parties agree to first negotiate in good faith toward a resolution with participation by representatives of each Party holding sufficient authority to resolve the dispute. If such dispute cannot be resolved in this manner, before any action or litigation is initiated other than as required to secure lien rights, and upon mutual agreement of the parties, the dispute shall be submitted to mediation using the American Arbitration Association or another mediator as mutually selected by the Parties. Such mediation shall be completed within a reasonable period of time following either Party’s written demand with each Party to bear an equal share of the mediation fees and its own respective attorney and consultant fees and costs.
[SIGNATURES ON FOLLOWING PAGE]
12 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF CLAYTON
AND THEIS ENGINEERING & ASSOCIATES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF CLAYTON Theis Engineering & Associates
By: By:
Reina J. Schwartz Its:
City Manager
ATTEST:
By:
City Clerk
Lawrence Theis, President
13 EXHIBIT A
1. City Engineering Services
The role of the City Engineering includes the administration of engineering related processes and procedures. These duties include:
Assist in CIP scoping, prioritization, and budgeting
Representation as City Engineer at internal and agency meetings Approval of permits and waivers
Availability to the public and private developers to handle matters dealing with the engineering functions of City government
Coordination with other agencies for the review of plans, projects and studies Assistance in the solicitation of proposals for CIP design work Assistance in the procurement of contractors and vendors for public works construction.
The City Engineer will also address failed infrastructure for immediate safety concerns and coordinate preliminary opinion on repair approach as well as coordinate with Maintenance staff on the maintenance, operations, and repair of public facilities.
City Engineer should be familiar with:
Various regional, state and federal transportation funding entities and the application process, fund/project management and reporting requirements for those entities.
The San Francisco Regional Water Quality Control Board Municipal Regional permit (MRP) 2.0 and the upcoming MRP 3.0, including annual report preparation and submittal.
Contra Costa Clean Water Program and applicable C-3 Guidebook.
2. General Engineering Services (Non-General Fund Capital Projects) The firm is to provide access to specialized technical staff ready to perform studies, designs, project and construction management on any tasks or projects the City identifies.
These efforts include the preparation of site evaluations, planning and preliminary engineering reports, plans and specifications for CIP construction projects, along with detailed schedules and cost estimates. This work would also include any necessary field work, drafting, design, surveying, environmental documents, bid assistance, construction management & inspection, and project management – as well as the preparation of specialized engineering studies on a variety of subjects including, but not limited to drainage studies, traffic studies, and pavement evaluations. 14 3. Land Development Review and Permitting Services
The firm is to provide staffing to represent the City and interact with the public in processing the City’s public permit applications. This work includes plan check for civil engineering design plans which includes, but is not limited to street, sewer, water, stormwater, recycled water, green infrastructure, storm drain, fiber optic, grading, erosion control, signing & striping, street lighting, traffic signal and all related engineering studies, including hydrology and hydraulics, soils, water and sewer studies and structural analyses. It should be noted that water service for the City of Clayton is provided by Contra Costa Water District. Sewer service is provided by the City of Concord including maintenance, plan review and sewer capital projects.
4. Annual Administration/Assessments Levy Services
i. The City currently has eight (8) districts (listed below) that require the services listed below for annual administration and assessment levies. It should be noted that some of the districts have restrictions on the amount of funding that can be spent on administration of the district.
District Name Type of District
Oakhurst Geological Hazard Abatement District
(1,484 parcels)
Geological Hazard Abatement District,
Public Resources Code, Sec 26500 et seq
Streetlight Assessment District (3,482) 1919 Act Streetlight District High Street Bridge Assessment District (5) Permanent Road Division Lydia Lane Sewer Assessment District (16) 1913 Act
Oak Street Bridge Assessment District (9) Permanent Road Division Oak Street Sewer Assessment District (10) 1913 Act District Diablo Estates Benefit Assessment District (24) 1972 Act, 1982 Act District Community Facilities District No. 2022-01 (18)
Public Services
Mello-Roos Community Facilities Act of
1982
A. Research - Obtain all available information from the City regarding the districts, including the current assessment data files, electronic map files, listing of projected expenditures and revenues and any additional information that is available. Update the current assessment data files with the latest Assessor’s parcel number and land use code information if needed.
15 B. Meetings and Coordination - Meet with City staff to review the districts, receive budgets and confirm schedule, conduct one status meeting in conjunction with the draft Engineer’s Reports and one for the final Engineer’s Report, if required, attend the City Council meetings considering the Resolutions of Intention and the public hearings, and provide technical support and answer questions. At the public hearing provide a presentation to present at the public hearing. Total of up to 8 (eight) meetings.
C. Estimated Budgets - Review budgets for the upcoming fiscal year by establishing projected costs based on prior year estimates and actual/projected changes in costs and improvements. Review debt service schedule for the assessment districts and ensure the current year levy follows the debt service schedule for each assessment district.
D. Engineer’s Reports - Prepare the Engineer’s Reports setting the annual assessment rates for the next fiscal year based on budget estimates from City, and including reduced copies of the updated Assessment Diagrams, if revised. The Engineer’s Reports will also incorporate any new annexations into the districts during the previous year. Provide copies of the draft Reports for review and comment. Provide a PDF copy and up to 4 (4) bound copies of the finalized Reports and up to (2) bound copies of the Preliminary Assessment Rolls for processing and filing.
E. Diablo Estates BAD Noticing and Mailing - Provide to the City packets including a notice of the public hearing with a copy of the draft Engineer’s Report, to be mailed to the owner of record for each property within the Diablo Estates Benefit Assessment District. This packet shall be in a mailing envelop with the appropriate mailing label with a Assessor parcel number, owner name and mailing address, ready to have postage applied and mailed by the City.
ii. Submittal to Contra Costa County - After confirmation of assessments, prepare an Assessment Roll in electronic format, as required by the County Auditor-Controller for inclusion of assessments on the property tax bills.
Submit the roll for each district to Contra Costa County and, after receipt of the County’s exception report, make any required corrections. Deliver a copy of the electronic files for each district to City staff. iii. Formation/Annexation Services
The City may require the following services for any additional development that may occur within the City limits. The following tasks would be required for any Formation or Annexation. The City will require a detailed proposal for each formation or annexation taking into account the tasks listed below:
16 A. Kick-off Meeting - Meeting with City staff and property owner representative (if appropriate) to discuss the scope of the work, the proposed project schedule, the mechanisms and/or liaisons for obtaining the necessary information for the analysis (such as improvement plans, proposed land use designations, Parcel/Tentative Tract Map information, etc.) any properties that may have special needs, considerations or exemptions, and other information regarding the proposed improvements and properties.
B. Research - Gather support data, proposed development plans, proposed zoning information, preliminary improvement plans, cost estimates for all construction and maintenance components, locations of the proposed public improvements to be maintained, and any other pertinent information relating to the proposed improvements. A database will need to be compiled based on the Assessor’s Roll and Parcel/Tentative Tract Map information for the properties within the Development Area, including property size, land use data and property ownership.
C. Coordination - Coordinate with City staff, property owners, legal counsel, and other project consultants via conference call, email, or in person.
Participate in meetings with City staff, and the project team as requested.
D. CFD: Rate & Method of Apportionment - Review construction cost estimates including direct and indirect costs. Develop a special tax revenue model based on the proposed development product mix. Prepare preliminary special tax rate calculations based on the above analysis.
Determine the special tax allocation methodology and formula to be applied in accordance with the Act. Apportion the costs of facilities in the form of special taxes to be levied upon the parcels of land within the CFD using the special tax methodologies determined above. Prepare the Rate and Method of Apportionment for attachment to the Resolution of Intention. Review comments with City staff, the project team and property owners and finalize based on comments received
E. LLMD: Engineer’s Report - Prepare a preliminary & final Engineer’s Report which contains all items as required by the Code, including the 1972 Act, Proposition 218, and relevant case law, including a description of the proposed improvements/ services, an engineer’s estimate of the construction costs/ service costs and incidental expenses, a description of the assessment methodology, boundary map/assessment diagram and the assessment roll.
F. CFD: Proposed Boundary Map - Prepare the proposed Boundary Map for recordation pursuant to the Mello‐Roos Act and the County Recorder’s Office. The ability to provide a reduced copy of the Boundary Map for inclusion in reports.
G. CFD: Community Facilities District Report - Prepare a draft CFD Report to reflect final estimated cost of facilities. In summary the report should include:
17 Description of the CFD (including the Proposed Boundary Map) Description of Facilities and Services
Cost Estimates
Rate and Method of Apportionment
A list of Property Owners
H. Review comments with City staff and financing team and finalize based on comments received. Provide a final PDF copy of the CFD Report I. City Council Meetings - Attend City Council meeting for Resolution of Intention & Public Hearing and election.
J. CFD: Notice of Special Tax Lien - Prepare the required the Notice of Special Tax Liens and record after district formation
K. Bond Issuance - As needed, provide Special Tax Tables including the overlapping debt tables and up to five (5) special tax tables for the preliminary official statement, as required by the Bond Counsel and/or Disclosure Counsel. Certificate of the Special Tax Consultant - Review and execute the certificate of the special tax consultant, as provided by the Bond Counsel.
L. Annexations - All applicable services listed above or as amended as needed.
18 EXHIBIT B
CONSULTANT’S PROPOSAL
City of Clayton
Scope of Service Proposal for:
City/Municipal Engineering, Assessment District Services, and Geologic Hazard Abatement District (GHAD) Management
Theis Engineering and Associates, Inc.
January 12, 2023
2 January 12, 2023
Attn: Reina Schwartz, City Manager
City of Clayton
6000 Heritage Trail
Clayton, CA 94517
RE: City of Clayton – City/Municipal Engineering and Assessment District Services Proposal Dear City Manager Schwartz,
Theis Engineering & Associates, Inc. (Theis Engineering) is pleased to propose our City/Municipal Engineering and Assessment District Services to the City of Clayton (City). Theis Engineering is led by me, Larry Theis, P.E. I have been serving as Clayton’s City Engineer since March of 2022 and am proposing to continue to provide the same services to the City. I spent almost the entirety of my 22 years career as a public agency staff member. My most recent public agency experience was with the City of Orinda (Orinda), where I was the City of Orinda (Orinda) Director of Public Works and Engineering Services as well as their Assistant City Manager. I still approach issues more like a public agency civil servant than a consultant. I think that is the biggest differentiation between my approach compared to other consultants. I understand the expectations of the public agency staff.
I will continue to lead our team of subconsultants: CSG Consultants, Inc. (CSG) for land development, City Surveyor, civil design work, and environmental support; Advance Mobility Group (AMG) for traffic/transportation, BSK Associates (BSK) for geotechnical and material testing, and Francisco & Associates (F&A) for assessment district administration. Our team of subconsultants are the same subconsultants that have been providing the same services to the City since March of 2022. After having a year of experience, our team has gained valuable experience and knowledge of the City’s needs. Our team has improved some of the existing operations and looks forward to continuing to build on the progress we have already made.
Please contact me at (925) 890-9732 if you have any questions. We look forward to continuing to provide quality services to the City and its residents.
Sincerely,
Larry Theis, P.E.
President
3 Firm Information:
Theis Engineering & Associates was founded in 2023 and led by Larry Theis, P.E. Having spent more than 20 years in the public sector, Larry is very familiar with the challenges that public agency staff face every day. He would like to bring his own expertise and his connections to other talented firms to build the best team for his clients. Most technical consultants do not provide these niche services. It is with this understanding, Larry decided to form his own firm to provide services that are geared toward assisting public agencies by performing the work typical of inhouse staff. His initial goal with founding his firm is to bring hands-on client service to a select number of clients.
Names and Roles of Personnel:
Clayton’s scope of work is broken down in four categories:
1. City Engineering Services:
Larry will perform the typical City Engineer duties and provide oversight to consultants. Larry will provide the majority of the day-to-day city engineering needs of the City and the subconsultants will provide additional technical expertise when needed. Larry will attend city council and committee meetings when needed and be a representative on behalf of the City when working with other agencies, utility companies, or countywide entities. Larry Theis (Theis Engineering): City Engineer
Cristiano Melo: Geotechnical
Hal Williams (CSG): Civil engineering design and evaluation Joy Bhattacharya (AMG): Traffic/Transportation
2. General Engineering Services (Non-General Fund Capital Projects) As indicated in the above category, Larry will provide oversight of the work and represent the interests of the City under this category.
Larry Theis (Theis Engineering): City Engineer
Cristiano Melo: Geotechnical engineering and material testing Hal Williams (CSG): Civil Engineering design and evaluation Joy Bhattacharya (AMG): Traffic/Transportation design and evaluation
3. Land Development Review and Permitting Services
As indicated in category 1 above, Larry will provide general oversight of the work under this category.
Larry Theis (Theis Engineering): City Engineer including encroachment permit and construction activity permit review and issuance
Cristiano Melo: Geotechnical engineering
Joy Bhattacharya (AMG): Traffic/Transportation design and evaluation Mario Camorongan (CSG): Development review
David Rubcic (CSG): Final and Parcel Map review
4. Annual Administration/Assessment Levy Services/GHAD Management Similar to the other categories above, Larry will provide the general oversight of the work under this category. Larry will also be the GHAD Manager. Larry Theis (Theis Engineering): GHAD Manager
Brian Brown (Francisco & Associates): Assessment District Administration Cristiano Melo: Geotechnical engineering and field monitoring services
4 Organization Chart:
Resume: Larry Theis, President/Principal Engineer
Licensed State of California Professional Engineer License #C67662 exp. 6/30/23 State of California Notary Public – Contra Costa County #2282509 exp. 3/23/23 Graduated University of California – Berkeley – B.S. Civil & Environmental Engineering 22 Years of Municipal Engineering Experience
Consists of: 1 year as President/Principal Engineer – ANCHOR, public agency engineering firm including City Engineer of Clayton since March 2022 5 years as Director of Public Works and Engineering Services – ORINDA; including 2 years as Assistant City Manager
3 years as City Engineer – ORINDA
11 years as Associate Engineer/Project Manager – CONTRA COSTA COUNTY; including 8 years in Capital Project Design and Delivery and 3 years in Development Review
2 years as Transportation Engineer – CALTRANS District 4 Honors & Awards
o California City Management Foundation (CCMF) member and 2019 New and Future City Manager Seminar Participant
o APWA NorCal 2018 Project of Year – Miner Road Sinkhole Repair (Emergency, Small Cities) o Managed/Oversee Orinda Paving Program; improved the City Average Network Pavement Condition Index from 48 in 2014 to 85 in 2019; 2017 ASCE Outstanding Sustainable Engineering Project
o APWA NorCal 2017 Project of Year – Lamorinda Paving Partnership (Small/Rural Cities) o Contra Costa Local Government Leadership Academy – 2015 graduate o CCCPWD J. Michael Walford Award – 2012 Employee of the Year o APWA NorCal 2007 Project of the Year (over $2 million – Emergency Repair) Lower Walnut Creek Interim Protection Measures Project
o County Engineers Association of California (CEAC) – 2007 Regional Employee of the Year
5 Scope of Services and Planned Approach
Larry has over 20 years of experience working for public agencies, with almost all his experience being for public agencies within Contra Costa County. Larry’s last position at a public agency was at Orinda, where he was their Director of Public Works and Engineering Services as well as their Assistant City Manager. In many ways, the Clayton and Orinda are similar. Larry will be able to draw on those experiences and bring them to the City. In addition, Larry has built many professional relationships with staff at other public agencies that the City regularly coordinates with, such as Caltrans, Contra Costa Transportation Authority (CCTA), Contra Costa County, etc.
Since being appointed to the Clayton’s City Engineer position in March of 2022, Larry has been performing the functions of the City Engineer successfully. Larry assisted and completed some backlogged tasks as well as embarked on new process improvements. There are multi-year tasks that Larry has been working on and he looks forward to assisting the City to complete them.
1. City Engineering Services:
Larry will provide the City Engineering services and provide oversight of all work performed by the subconsultants. Larry is familiar with the needs of the City as he has been performing in this role since March of 2022.
Larry has participated in the City Council meetings as well as other City and regional committee meetings. Larry looks forward to continuing to present updates and provide recommendations to the City Manager and the City Council.
Larry understands it is important to work along with City staff from other departments and not be in a silo. Larry participates in the City’s executive meetings regularly and built professional relationships with the City department heads. Larry has been working closely with the Maintenance Supervisor on a variety of public works maintenance needs and assisted in completing a number of maintenance projects. Larry has been working closely with the Community Development Director on issues such as Contra Costa County Transportation Partnership and Cooperation (TRANSPAC) on an action plan update as well as development reviews. Larry also worked closely with the Finance Director in switching the Capital Improvement Plan into a new format for fiscal year 2022/2023. When there were staff departures, such as the resignation of the Assistant to the City Manager as well the departure of the Finance Director, Larry has pitched in to assist where he can. Larry looks forward to continuing to participate with the City’s leadership team as if he is a City staff member. Larry prides himself on being able to approach issues as if he is a public agency staff and believes his role is to advocate for the best interests of the City.
As for the interfacing with the general public, Larry has been meeting with residents as well as developers on engineering issues. With Larry located nearby, when needed, Larry has been able to meet onsite. Larry plans to continue to be available to help respond to engineering inquiries.
Outside of the City, Larry has represented the City in meetings with other public agencies that the City regularly collaborates with. Larry's past experience collaborating with staff at these agencies has been helpful as professional working relationships have been already established. Larry plans to continue to bring that benefit to the City as your representative.
6 During the past year, Larry has led his team to complete the requested tasks. With his wealth of public agency experiences, Larry takes a comprehensive approach to the City’s engineering needs. If technical expertise is needed beyond the day-to-day engineering, CSG will provide civil engineering design support and development review, AMG will provide traffic/transportation analyses, and BSK will provide geotechnical services.
2. General Engineering Services (Non-General Fund Capital Projects):
Larry will provide general oversight of the work under this category; similar to how an in-house project manager would oversee a consultant. CSG will perform the civil engineering design work.
AMG will perform traffic/transportation work. BSK will perform geotechnical work as well as material testing. If needed, Larry has professional relationships that he has built over the years that he can outreach for additional technical subconsultants. Larry and CSG have been working together to complete the design of two current of capital improvement projects. Beside technical detail design, there has been extensive coordination with the funding agencies, such as Caltrans and CCTA, which has Larry led. Larry and the CSG design team are looking forward to completing the design of these projects that which will lead to valuable improvements for the City.
3. Land Development Review and Permitting Services:
Larry will provide general oversight of the work under this category. CSG will provide the land development review. If technical review is required, AMG will perform traffic/transportation review and BSK will perform geotechnical review. During the past year, Larry and CSG have performed development reviews and collaborated with the Planning Department through the development process.
As for permitting, Larry has established a new encroachment permit tracking system for the utilities to better understand their activities within the City. After introducing the new system to the utilities, the utilities have been responding well with the new tracking system. The new system not only helps track their activities, it also assists in the proper invoicing of the services. Larry looks forward to continuing to look for ways that will improve other City’s operations.
4. Annual Administration/Assessment Levy Services/GHAD Management:
Larry will provide the general oversight of the work under this category. Larry will also be the GHAD Manager.
Francisco & Associates (F&A) will perform the annual administration/assessment levy services.
Larry and F&A have been successful in performing the annual administration/assessment levy services for fiscal year 2022/2023. In addition, Larry and F&A have assisted the City in creating the new Community Facilities District No. 2022-01 (Public Services) (CFD No. 2022-01). Although the need for an assessment district stems from one of the conditions of approval for a development, Larry and F&A recommended and assisted the City in creating this CFD No. 2022- 01 that would not only satisfy that condition for that one development but will allow future development and annexation into this CFD No 2022-01 efficiently. This is an example of Larry and his subconsultants taking a comprehensive approach as they perform their work.
F&A will continue to review Engineer’s Report to provide recommendations to strengthen them and inform the City of potential issues related to compliance with state laws.
7 BSK will provide geotechnical support to Larry. In the past year, Larry and BSK have embarked on evaluating the GHAD. Their efforts included the reconstruction of the Ahwanee sidewalk, and a comprehensive site assessment of the district. Larry and the BSK team look forward to continuing their review of the GHAD and its potential liabilities and providing recommendations.
Cost of Services
1. General City Engineering Services
The City’s past contract service model has been to propose a monthly fee (with a breakdown by hours per position) for general city engineering services which include meetings, responding to public inquiries and emails, general research, city council presentations, field visits, including coordination with city staff and other agencies or utilities. Theis Engineering is proposing a monthly fee of $12,000 which will be subject to annual increase per Section 2 of the agreement.
This monthly fee roughly breaks down to a combination of 28 hours (~7 hours per week) of City Engineer at $239 per hour and 24 hours (~6 hours per week) of Deputy City Engineer at $217 per hour.
If the actual hours exceed the typical hours listed above by more than 20% on a consistent basis (3 consecutive months or more), then Theis Engineering reserves the right to notify the City that additional hours are needed and an increase to the monthly fee would be open for negotiation.
If additional technical services and studies are required for the subconsultants, additional costs will be above the monthly fees mentioned above. The additional costs will be based on the subconsultant fees plus 10%.
Special Tasks as requested by City (not included in monthly fee) a. Clayton Representative to Contra Costa Clean Water Program o Attend two monthly meetings (two committees) and participate at conferences as needed – average 5 hours per month
o Perform stormwater related inspections and monitoring tasks – average 2 hours per month
o Prepare and submit annual report – estimate 20 hours yearly (typically Aug-Sept) Total Hrs per year = 104 at $239/hr = $24,856 estimated per year (not to exceed) b. Diablo Estates Benefit Assessment District – Facilities Management o Provide resident customer service similar to an HOA management company – average 1 hour per month
o Hire/manage ornamental landscape maintenance company – average 1 hour per month
o Coordinate with City maintenance staff on Streetlighting and Open Space maintenance activities - average 1 hour per month
o Perform annual stormwater facilities inspection and prepare checklist for Clean Water Report – average 8 hours annually
Total Hrs per year = 44 at $239/hr = $10,516 estimated per year (not to exceed)
8 If the actual hours exceed the typical hours listed above for the special tasks by more than 20% on a consistent basis (3 consecutive months or more), then Theis Engineering reserves the right to notify the City that additional hours are needed and an increase to the monthly fee would be open for negotiation.
2. General Engineering Services (non-General Fund Capital Projects) Since it is not feasible to estimate the costs of the non-general fund capital projects at the time for this proposal, each project will be evaluated separately and reviewed by the City Manager for an authorization to proceed. A separate proposal will be prepared for each capital project based on the hourly rates for Theis Engineering and the subconsultant listed below. If it involves subconsultant(s), the additional costs will be based on subconsultant fees plus 10%. Grant requirements may require the City to perform separate solicitations. In those cases, the cost proposals will be based on the requirements at the time of those solicitations and not subject to the hourly rates listed in this proposal.
3. Land Development Review and Permitting Services
These services are based on actual review/processing time which are paid by the applicant from their deposit. The cost will be billed based on the hourly fee listed below. If it involves subconsultant(s), the additional costs will be based on subconsultant fees plus 10%.
4. Annual Administration/Assessment Levy Services/GHAD Management The cost for Larry to provide general oversight of the assessment districts, except for GHAD Manager duties, will be included in the monthly fee for City Engineering Services. For GHAD Manager duties, Theis Engineering’s fee will be $4,780 based on the assumption of 20 hours per year. If actual hours exceed that amount by more than 40 hours per year, Theis Engineering reserves the right to notify the City that additional hours are needed and an increase to the fee would be open to negotiation.
F&A proposes the following lump sum fees for the assessment districts:
ASSESSMENT DISTRICTS
Oakhurst Geological Hazard Abatement District Annual Administration Fee $2,500 per year Street Light Assessment District Annual Administration Fee $3,500 per year High Street Bridge Assessment District Annual Administration Fee $500 per year Lydia Lane Sewer Assessment District Annual Administration Fee $500 per year Oak Street Bridge Assessment District Annual Administration Fee $500 per year Oak Street Sewer Assessment District Annual Administration Fee $500 per year Diablo Estates Benefit Assessment District Annual Administration Fee $3,500 per year
COMMUNITIES FACILITIES DISTRICT
Community Facilities District No. 2022-01 Annual Administration Fee $1,500 per year
REIMBURSABLES
Reimbursable expenses such as overnight mailings, recordation fees, mileage, County maps and data are in addition to the lump sum fees above and will be billed at cost plus 10%, but reimbursables will not exceed $500. Mileage will be billed at the annual Federal mileage rate.
9 It is not feasible to determine the geotechnical needs of the GHAD at this point. If it is necessary for the GHAD to require geotechnical engineering work, this would be considered an additional cost. If it involved subconsultant(s), the additional costs will be based on subconsultant fees plus 10%.
The following are rate sheets for hourly services:
Theis Engineering Hourly Rate Schedule is as follow:
Expert Witness $357
City Engineer $239
Deputy City Engineer $217
Senior Engineer $200
Associate/Staff Engineer $150-$165
Engineering/Permit Technician $98-$156
Inspector $150-$165 or prevailing wage as determined by the State Administrator $74-$156
Other direct costs and subconsultant fees will be billed with a 10% mark-up.
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Francisco & Associates – additional billing rates
Please find below the current billing rates for all project personnel of Francisco & Associates.
Additional services including Community Facilities District (CFD) formations and annexations will be billed on a time and materials basis (T&M) at the hourly rates below unless a lump sum fee is agreed to by both parties.