November 16, 2022
Rovember, 914 MINUTES
6:00 p.m. Special Meeting
Council Chambers
35 Rheem Boulevard, Moraga, California 94556
CALL TO ORDER
The regular meeting was called to order at 6:02 p.m. by Mayor Steve Woehleke.
ROLL CALL
Councilmembers present: Mayor Steve Woehleke, and Councilmembers Sona Makker, Mike McCluer and Teresa Onoda
Councilmembers absent: Vice Mayor Sos
2. PLEDGE OF ALLEGIANCE
Assistant Town Attorney Karen Murphy led the Pledge of Allegiance.
3. SPECIAL ANNOUNCEMENTS
There were no special announcements.
4. PROCLAMATIONS AND PRESENTATIONS
A. Proclamation Honoring Marty McInturf, Moraga Town Clerk, for her 13 Years of Service
The Town Council read into the record a proclamation honoring Marty McInturf, Moraga Town Clerk, for her 13 years of service and wished her well on her retirement.
The Town Council emphasized the comments in the proclamation that had been prepared by the Vice Mayor with input from the Mayor; thanked Town Clerk Molnturf for being one of the most helpful people the Town Council had worked with; commended her for being the person she was; appreciated her sense of calmness, welcoming nature, encyclopedic knowledge, making sure everyone had what they needed; and for her service as the Ambassador for the Town with many residents having expressed their appreciation as well.
PUBLIC COMMENTS OPENED
Dave Bruzzone, speaking on behalf of the Bruzzone Family, was sorry that Town Clerk McInturf was leaving the Town. He agreed she would be missed, that she had been a fixture in the Town and he recognized the Town was losing good staff members. He added that Town Clerk Mclnturf's service to the Town was greatly appreciated.
PUBLIC COMMENTS CLOSED
Town Council Special Meeting 1 November 16, 2022
5. PUBLIC COMMENTS AND SUGGESTIONS
There were no public comments or suggestions.
6. ADOPTION OF MEETING AGENDA
Councilmember Makker requested the meeting agenda be modified as follows: Item 7. A.
Interim Town Manager Agreement; Item 7. B. Overview of Proposed Affordable Housing Ordinance; Item 7. C. Draft Environmental Impact Report and Item 7. D. Review HCD's Comments on Draft Housing Element.
PUBLIC COMMENTS OPENED
There were no comments from the public.
PUBLIC COMMENTS CLOSED
ACTION: It was M/S (Makker/Onoda) to modify the meeting agenda, as follows: Item 7. A.
Interim Town Manager Agreement; Item 7. B. Overview of Proposed Affordable Housing Ordinance; Item 7. C. Draft Environmental Impact Report and Item 7. D. Review HCD's Comments on Draft Housing Element. Vote: 4-0-1. Absent: Sos.
7. ORDINANCES, RESOLUTIONS AND REQUESTS FOR ACTION
A. Interim Town Manager Agreement
Consider Resolution 89-2022 Approving the Employment Agreement for Interim Town Manager Services with Brian Dolan
Mayor Woehleke provided a PowerPoint presentation on the Moraga Interim Town Manager Selection and explained that the Interim Town Manager would start on January 3, 2023 and continue until a permanent Town Manager was on board. The Interim Town Manager would likely be needed for multiple months and during this period, the Town priorities would include achieving the Regional Housing Needs Allocation (RHNA) 6" Cycle deliverables, onboarding the new Town Council, setting the 2023 Town Council Goals and pursuing other continuing annual activities.
Mayor Woehleke reported a total of five candidates had applied for the position. Submissions and supporting information enabled a reduction to three candidates who had been interviewed by the full Town Council on November 4, 2022. All three candidates had been highly qualified and interviewed well, but the Town Council had unanimously selected Brian Dolan as the preferred candidate. Mr. Dolan had over 35 years of experience working for local government as a public employee and as a consultant, with 22 years of management experience for San Francisco Bay Area municipalities; 10 years as Department Director, seven years as Assistant City Manager anc six months as Interim City Manager for the City of Pleasanton and had in-depth experience directly applicable to Moraga.
Mr. Dolan also had the soft skills; 22 years of management experience for area municipalities, and as a 20-year resident of the Town of Moraga whose children had gone to the local schools.
He was familiar with the local community and his desire to help Moraga was the reason he had sought this opportunity.
PUBLIC COMMENTS OPENED
There were no comments from the public.
Town Council Special Meeting 2 November 16, 2022
PUBLIC COMMENTS CLOSED
Councilmember Onoda stated Mr. Dolan had the experience needed and the community should be happy.
Councilmember McCluer agreed the three candidates that had been interviewed were all very qualified, but Mr. Dolan had the full breadth and depth sought by the Town Council and he had experience having worked on five Housing Elements. Mr. Dolan also had the soft skills, lived in the Town of Moraga and was a fabulous choice.
ACTION: It was M/S (Onoda/McCluer) to adopt Resolution 89-2022 Approving the Employment Agreement for Interim Town Manager Services with Brian Dolan. Vote: 4-0-1.
Absent: Sos.
B. Overview of Proposed Affordable Housing Ordinance
Receive an Overview on an Ordinance to Implement Affordable Housing Requirements for New Residential Development
Town Manager Battenberg explained that the Town Council had discussed affordable housing and an Inclusionary Zoning Ordinance multiple times including a joint session with the Planning Commission. The Planning Commission had a presentation and had made a recommendation to the Town Council during a Special Meeting on November 14, 2022, with this presentation an overview for the Town Council. The details of the Ordinance or wordsmithing would not be discussed at this time since the item had not been noticed to the public as a public hearing but would be brought back to the Town Council at a Special Meeting scheduled for December 7, 2022, and a Regular Meeting on December 14, 2022, to allow for the adoption of the Ordinance.
Assistant Town Attorney Murphy confirmed the direction to the Town Council but stated that any thoughts on the Ordinance would be welcome, although again the actual deliberation amongst the Town Council and any wordsmithing would occur on December 7.
Ms. Battenberg commented that in terms of the arrangement of the agenda items, it would have been helpful to discuss Item 7. C. Review HCD's Comments on Draft Housing Element first since the comments from the Department of Housing and Community Development (HCD) reflected the seriousness of the need for the Town to help incentivize and produce affordable housing. An affordable housing Ordinance was an important part of that effort. She reported the comments from HCD had focused on Affirmatively Furthering Fair Housing (AFFH) and an Inclusionary Zoning Ordinance was an important part of AFFH. The Town had not produced any affordable units in its history, and it would bode well for the Town when submitting the Housing Element to HCD in January 2023 to do that.
Barry Miller, Barry Miller Consulting, provided a PowerPoint presentation on the Draft Inclusionary Zoning Ordinance, which included an overview of the context and the 2023-2031 Housing Element, General Plan Amendments, Bollinger Canyon Rezoning, Program-Level Environmental Impact Report (EIR), Housing Element Initial Implementation that included the Zoning Map, and text changes to meet the Regional Housing Needs Allocation (RHNA), objective standards for Rheem and Inclusionary Zoning.
Mr. Miller reported the Town of Moraga's RHNA was 1,118 housing units, which the Town must demonstrate it had the capacity to produce by 2031, and included 318 Very Low Income units, 183 Low Income Units, 172 Moderate Income units and 445 Above Moderate Income units. He highlighted a table that identified the RHNA progress the Town had made as part of its 5th Cycle Housing Element (2015-2023) as of March 2022 and stated that the Town was required to meet its Very Low and Low Income categories.
Town Council Special Meeting 3 November 16, 2022
Mr. Miller explained that inclusionary zoning was a locally adopted Ordinance, not a State mandate, and required a percentage of the units in future residential developments to be rented or sold at "below market rates" (BMR). Fourteen of the 20 jurisdictions in Contra Costa County had adopted inclusionary zoning. The 2023-2031 Draft Housing Element included a program to adopt an Inclusionary Zoning Ordinance, which was an effective tool for AFFH to achieve some of the lower-income housing assignment. He noted the comment letter from HCD had indicated the Town must demonstrate that its housing sites "are distributed throughout the community in a manner that affirmatively furthers fair housing."
The Ordinance framework was provided and reflected developer input to be flexible and responsive to the market and it would apply to all new residential and mixed-use projects with six or more units; for-rent projects and 10 percent affordable to lower-income households; for-sale projects and 10 percent affordable to moderate-income households; projects in R-6 or lower density zones may provide 25 percent market-rate Accessory Dwelling Units (ADUs) in-lieu of affordable units; and other percentages would be acceptable provided the benefit was of equivalent value.
Alternatives would be provided to developers who could not meet the requirement on-site; design parameters for the affordable units were included in the Ordinance; and the Ordinance addressed size of unit, design consistency, interior finishes and the like.
With respect to the establishment of in lieu fees, an in-lieu fee could be established and adopted through resolution tentatively scheduled for January 11, 2023 with a study underway to determine the fee that would be based on the gap between a market rate unit sale/rent price and an affordable unit sale/rent price. Fees would be primarily for "fractional" units and would not be intended as an alternative to development of on-site affordable units (in most cases) and an Affordable Housing Fund would be created.
The Planning Commission had adopted a resolution at its November 14, 2022 meeting by a vote of 6-1 recommending Town Council adoption of the Ordinance. Three Planning Commissioners supported the Ordinance "as is," three Planning Commissioners requested modification of the Ordinance to limit potential for additional dwellings beyond those allowed by zoning in Wildland Urban Interface (WUI) areas due to wildfire and evacuation concerns, and one Planning Commissioner objected to the Ordinance but indicated support for an Ordinance that focused on the two commercial areas only.
Mr. Miller identified the next steps and asked the Town Council to ask any clarifying questions and take public comment on the Draft Ordinance. The first reading of the Ordinance and policy resolution had been scheduled for Town Council consideration on December 7, with the second reading on December 14, 2022.
The Fee Resolution had been scheduled for Town Council consideration on January 11, 2023 with the proposed effective date of the Ordinance on January 13, 2023.
Responding to questions from the Town Council, Mr. Miller, Ms. Battenberg and Ms. Murphy clarified:
• An Inclusionary Zoning Ordinance was not a state requirement and was the prerogative of the Town Council. An Inclusionary Zoning Ordinance had been included in the Housing Element when it had been submitted to HCD. Program 15 of the Housing Element stated the Town would adopt an Inclusionary Housing Ordinance with a commitment in the Draft Housing Element submitted to the state. The idea of a voluntary Inclusionary Zoning Ordinance was what the Town already had in place. The State Density Bonus Program Town Council Special Meeting 4 November 16, 2022
allowed any developer who set aside 10 percent of the units of the project for Low Income households voluntarily to be entitled to a Density Bonus and associated parking reductions and incentives. (McCluer)
There were no specific restrictions on inclusionary housing related to Very High Fire Hazard Severity Zone Maps. The Town only had one area in the Very High Fire Hazard Severity Zone, an area part of the lower density residential where a developer chose 25 percent ADUs to meet the affordable requirement as opposed to developing the affordable housing units. (Onoda)
Land use in Very High Fire Hazard Severity Zones would be decided by the Town Council in terms of the designation in those areas, and when any project was submitted, environmental review would be conducted with input from the Moraga-Orinda Fire District (MOFD) and the Moraga Police Department in terms of impacts with respect to evacuation and wildfire and those agencies would also be involved in any rezoning to take place in those areas. There were also state provisions that exempted certain requirements as part of Senate Bill (SB) 330 in Very High Fire Hazard Severity Zones, with the understanding there could be some development constraints in those areas. The decision maker for the ultimate land use controls would be the Town with input from those agencies.
As to whether the Town could place restrictions on the placement of ADUs due to fire concerns near Wildland Urban Interface (WUI) areas and whether that could be proposed to HCD as part of the Updated Housing Element, staff clarified that state law trumped local regulations so ADUs would be allowed within any home in the Town. The Town had an ADU Ordinance which could place certain requirements on ADUs, but ADU law governed the ability and protection of homeowners to construct them.
With respect to the Inclusionary Housing Ordinance, there was no requirement to include ADUs as a potential for meeting inclusionary requirements but in order to provide flexibility for developers, ADUs had been proposed as an alternative. The Town must also be careful to treat lands throughout the Town in a similar manner so as not to run afoul of AFFH requirements, which HCD would comment on.
The state had also been clear it wanted cities to clear the way to allow housing, particularly affordable housing. Comments from HCD had been stern and direct as to what was expected. HCD had taken away the right of cities to restrict ADUs. The Town had stipulated that it would not allow two-story ADUs, although the state clarified that there could be an outright permission for two-story ADUs. For all cities that had attempted to avoid meeting the RHNA, whether due to cougars or fire, the State Attorney General had threatened litigation.
Staff wanted the Town Council to be aware that based on past actions, crafting potential exemptions from WUl areas or Very High Fire Hazard Severity Zones would not be looked at favorably by the state. (Mayor Woehleke)
• Staff and the consultant were of the opinion the proposed Inclusionary Zoning Ordinance was very flexible in terms of aiming at 10 percent of Low for-rent, 10 percent Moderate for-sale and allowing the developer to choose other percentages with the Town to receive an equivalent benefit. Also, there would be alternatives to providing the units on-site, and a developer may propose creative solutions that could be offered to the Town that had not been listed explicitly in the Ordinance. The Town's Ordinance would start at 10 percent whereas most communities staff had researched were at 15 percent. • In a way the Ordinance was light and cautious, and the market was currently vulnerable. (Makker) Town Council Special Meeting 5 November 16, 2022
• There was no proposal to create a minimum sized ADU at 500-square feet Town-wide for all ADUs and that restriction was strictly for ADUs that would be built to meet the inclusionary housing requirement. An ADU could be smaller than 500-square feet or a Junior (JADU) could be built at 250-square feet, but it would not count towards meeting the requirement. The intent was to plan not just for one person, but for two- to three- person households or other types that could involve Lower or Moderate Incomes.
The idea of an ADU being an option for a developer was not contrary to state law, but a creative solution the Town had proposed. Staff suggested the recommendations that had been proposed were acceptable pursuant to state law as long as the Town was not proposing to make any amendments to its existing Inclusionary Housing Ordinance.
ADUs may be constructed in accordance with state law but they would not all count ELEE towards meeting the Affordable Housing Ordinance, which was the Town's Ordinance subject to local law and the Town may structure it as the Town desired as long as it did Not all cities had counted ADUs as affordable units for meeting the inclusionary requirement and was something the Town of Moraga was allowing. As to the 500-square foot minimum, in an effort to include and attract diversity in the community, it would be difficult to live in a unit that was less than 500-square feet, particularly in the rural community of Moraga as opposed to downtown San Francisco, as an example. Staff had discussed this topic and recommended 500-square feet as a reasonable sized unit for a small family to live in. Something smaller than 500-square feet would not be a viable housing unit. Through the development of the Inclusionary Zoning Ordinance, staff had considered all options and had tried to create some affordable units in Town. Revisions to this component of the Ordinance could be considered at the next meeting of the Town Council. (McCluer)
• ADUs were an alternative to providing Moderate Income for-sale homes that would be less advantageous financially for a developer. Staff anticipated a lot of ADUs as part of new development and cited the Palos Colorados development as an example, which would include 25 percent ADUs. Staff was of the opinion that significantly more ADUs would likely be constructed in the future in response to changing trends. (Onoda) • Staff cited the City of San Rafael as an example of a community with an Inclusionary Zoning Ordinance, whose Ordinance started at 20 percent but had been reduced to 10 percent, and which community had created 1,000 affordable units in the last 40 years without public subsidy. That housing had been a great success for that community and the residents of those units were part of the fabric of the city and part of the workforce living in the city with units they either owned or were renting.
The ADU option had not been part of the San Rafael inclusionary Ordinance, had been a novel idea that had started in the Town of Danville, and was an idea being recommended for the Town of Moraga since ADUs were a market and context driven issue. (Mayor Woehleke)
• A separate chapter of the Moraga Municipal Code (MMC) dealt with the State Density Bonus with the thought that it would be logical to have an Affordable Housing Chapter Article 1 being the State Density Bonus and Article II, Inclusionary Housing Requirement.
They were related given the goal to produce affordable housing and it was more of an organizational construct to put them in the same chapter rather than separate them. (Makker)
Town Council Special Meeting 6 November 16, 2022
• The 25 percent ADU requirement had come from the Town of Danville's Inclusionary Ordinance. The City of Pleasant Hill's Inclusionary Zoning Ordinance was 20 percent with a deed restriction for all units. While the Town could go from 25 to 10 percent, the ADUs must be deed-restricted and that was not a palatable option for a homeowner to have an ADU be deed-restricted to a Lower Income household, although it was a safe option to go with 25 percent given the precedent. The idea was that the 10 percent deed restriction would provide the same outcome one was getting if the Ordinance was applied literally, and while that could be done, 25 percent could be provided with the assumption that some of the units would be used for offices or a short-term rental and not used for rental properties for Low Income housing. There was no data on the percentages but there was some data from the Association of Bay Area Governments (ABAG) that this was an approximate percentage for Low Income households (about half of them). If the Town Council determined that 25 percent or another was appropriate, that could be considered, but if going too far down, it would lose the point of creating responsiveness to the market. (McCluer)
• As to the analyses that had firmly established an Inclusionary Zoning Ordinance must be mandatory as opposed to voluntary (which the Town currently had), staff noted an Inclusionary Zoning Ordinance would more or less provide a guarantee that the Town would get more than zero units. Compared to the last eight years where the Town had produced zero affordable housing units and while it was unlikely the state would require the Town of Moraga to adopt a mandatory Inclusionary Zoning Ordinance or the Housing Element would not be certified, an Inclusionary Zoning Ordinance would show the Town in good faith was working towards meeting its RHNA and complying with AFFH. If the Town did not have a mandatory Inclusionary Zoning Ordinance, it would have to have something else such as a bond measure via sales tax, transfer tax and other remedies.
An Inclusionary Zoning Ordinance would not require a lot of public subsidies. (Mayor Woehleke)
• The Developers Roundtable included a discussion for 30-dwelling units per acre (DUA) which produces 28.5-DUA with the 5 percent on top of that to reach 30-DUA, and the Town's recommendation and the State Density Bonus showed good faith to the state the Town was going above and beyond the minimum requirements and responding to the development community that had expressed a need for 30-DUA. Since they were not quite getting there the Town was providing a little push by providing a 5 percent bonus on top of the State Density Bonus and letting the developers use the State Density Bonus for projects that were 80 percent AMI rather than 60 percent, which was strictly for multifamily development in the Mixed-Use and R-24 Zones. It was clarified for the R-24 Zone that the density bonus of for-sale Moderate Income households was only 15 percent, and more than the 5 percent was needed to bump it up to 30-DUA. (McCluer) • In response to Town Council and Planning Commission comments, a desire to incentivize senior and student housing with a recommendation to increase that density to 36-DUA with a density bonus for that type of housing, it was the decision of the Town Council and in the Policy Resolution for Inclusionary Housing but could be changed if the Town Council so desired. State law provided 60 percent of AMI, the benefits may be expanded with increased densities, reduced parking, reduced setbacks and increased building heights, and while a significant incentive, the reason for the staff choice at 80 percent was because of the RHNA assignment. Based on the inclusionary Ordinances from other communities, some of them used 60, 70 or 80 percent of AMI with the units to be affordable to residents earning below either 60, 70 or 80 percent. The intent was to show the state and residents the Town was working to meet that 50 to 80 percent AMI (workforce housing). The state bonus was very restrictive at 60 percent of AMI and it would be more favorable to the developer to have the limit be 80 percent AMI. (McCluer) Town Council Special Meeting 7 November 16, 2022
• The Inclusionary Zoning Ordinance, as proposed, would need to be reviewed in the future if state rules changed. In terms of the incentives, only one would be provided and the developer would choose what that incentive would be based on the characteristics of the project. There would be no impact on the number of units if the bar was placed at 80 percent as opposed to 60 percent of AMI, but the impact would be the cost or subsidy the developer would provide to make those units affordable. There would also be an impact on the type of person who could live in the unit. As an example, if trying to provide workforce housing, many of those people would be in the 80, not 60 percent of AMl which had been taken into consideration. (McCluer)
• Off-site alternatives must be within the Town. (Mayor Woehleke) Mr. Miller acknowledged in response to the Mayor that correspondence had been received from Dave Bruzzone. It was noted that staff would be more than happy to meet separately with Mr.
Bruzzone or anyone else to discuss their concerns and consider changes. Whether the Town Council should go over the points in Mr. Bruzzone's letter at this time, it was determined that the Town Council should take public comments at this time and at the next meeting on December 7, the Town Council could get into the substance of the comments.
Mr. Miller and Ms. Battenberg also clarified the public engagement on the Inclusionary Zoning Ordinance included the Developers Roundtable discussion. Whether a separate Town Hall should be considered to allow for public input and further stakeholder engagement, and in response to Councilmember McCluer, it was clarified that the Town Council would not meet the current schedule for the adoption of the Ordinance on December 7 given noticing requirements, the holiday period, and with the Planning Director currently on-leave. Staff acknowledged that additional step could be considered if the Town Council decided it was important.
There was no Town Council consensus to schedule a Town Hall meeting between now and the December 7 meeting given the identified limitations, although Councilmembers may meet with constituents informally and have conversations subject to the limitations of the Brown Act.
PUBLIC COMMENTS OPENED
Dave Bruzzone stated he had submitted written comments to the Planning Commission and Town Council and had provided redlined edits on the Ordinance. Although he commended staff for making some concessions with some adjustments to the Ordinance, he suggested that staff had included items that had sabotaged what the Town was trying to achieve. He suggested the Bruzzone Family could provide more affordable housing than the Town but could not achieve that goal with restrictions such as a minimum 500-square foot requirement for ADUs.
Mr. Bruzzone believed there was no way to include a ground floor ADU in conjunction with a single-family home or a townhouse. He emphasized the Town had no problem creatina Moderate and Above-Moderate Income units but needed the tools to create Very Low and Low Income units. The Town should provide flexibility to allow their creation throughout the community that would specifically meet AFFH. He suggested for all of the single-family housing developments, the Bruzzone Family was the only developer who would be creating those single-family developments. He reiterated the Bruzzone Family could provide affordable housing via ADUs and the ideal way would be to spread them throughout the community as evidenced by comments made by staff and the state. He asked the Town to allow them the flexibility to do that.
Mr. Bruzzone also referenced the HCD Comment Letter where HCD had stated it wanted to encourage the creation of programs that allowed flexibility in the creation of ADUs and which in his edits would enable the Town to do that. He added the State Density Bonus approved on the Town Council Special Meeting November 16, 2022
local level could be made more straightforward and not as cumbersome or complex. Currently affordable unit applications required the submittal of detailed information that was inappropriate.
He urged the Town Council to read his edits and stated he was happy to meet with staff in-person to go over his comments in detail.
Mayor Woehleke asked staff whether the 500-square foot limitation on ADUs could be changed to a range of sizes to provide some flexibility, and Ms. Battenberg confirmed the Town Council could make changes if it so desired.
PUBLIC COMMENTS CLOSED
Councilmember McCluer thanked everyone involved in this process. He emphasized that flexibility was important, and he hoped they would be able to revisit some of the assumptions including the minimum square footage requirement for ADUs. He pointed out other towns allowed for studios and that housing could be considered. Also, the requirement of 25 percent of units was on the high side and should be something lower. The densities of R-6 or less also needed some rethinking. He wanted to learn more about the HCD Comment Letter that could impact the current discussion.
Councilmember Onoda suggested 500-square feet was a good size for an ADU. She commended staff and the consultant for the good work to date.
Councilmember Makker recognized the Draft Housing Element had been aligned and the Town was taking the next step and getting it right looking at other Ordinances, speaking with various stakeholders and was concerned with a voluntary versus mandatory Ordinance. She suggested the points about ADU size were good ones but hoped the Town Council could start at the point of alignment at the December 7 meeting.
Mayor Woehleke also expressed his appreciation to staff and the consultants for providing credible answers to many of his questions. In terms of the discussion around the 500-square foot minimum for ADUs, he commented he had lived in Japan for a while where the average-sized family home with children was around 250 square feet. If looking to provide workforce housing, he suggested not all occupants would have families of three or four people and 500-square feet, while small for a family of four, may be large enough for a family of two or adequate for a single person, or a smaller square footage may be adequate for a single person who may be commuting a long distance. He suggested setting a minimum for all ADUs at 500 square feet should be revisited with recognition of potential options. In terms of the R-6 Zoning District, those homes would be fairly close together and with a 500-square foot ADU on the lot would potentially create a crowded development.
Councilmember Onoda pointed out that residents of Japan also slept in very confined spaces and having been there she suggested it was similar to New York City. She suggested it would be a good idea to speak with several developers to see what really sold or rented and what made sense for Moraga.
Mayor Woehleke declared a recess at 7:52 p.m. The Town Council meeting reconvened at 7:57 p.m. with all Councilmembers present, with the exception of Vice Mayor Sos.
C. Draft Environmental Impact Report
Receive an Informational Report and Accept Public Comments on Draft Environmental Impact Report for the Comprehensive Advanced Planning Initiative Mr. Miller provided a PowerPoint presentation on the Draft Environmental Impact Report (EIR) for the Comprehensive Advanced Planning Initiative, which had been posted on the Town Council Special Meeting 9 November 16, 2022
makemoragahome.org link of the Town website and had been released on October 27, 2022, and was currently under a 45-day public review period
The Comprehensive Advanced Planning Initiative, which the Housing Element required as part of the General Plan update every eight years, was the only part of the Plan subject to state certification, with the content defined by State Government Code and where all cities must demonstrate they could accommodate their fair share of the region's housing needs. The Town of Moraga was required to provide 1,118 units for its RHNA including 501 units affordable to Lower Income households.
The Town did not currently have a sufficient number of sites zoned to meet its housing assignment. Strategic rezoning was needed and may include the allowance of multifamily housing on some commercial (office and retail) sites where it was not allowed today; increasing the allowable density of multifamily development on some sites where multifamily housing was already permitted; and providing objective standards that facilitated or streamlined the approval process, as required by State law. The Town did not build housing but wrote the rules that made it possible for the private sector to do so.
The General Plan had been adopted in 2002 and was 20-years old. New state laws required amendments to the Circulation and Safety Elements and amendments would include new policies and programs to address traffic, evacuation and safety. Changes were also needed for internal consistency once the Housing Element had been prepared.
The Bollinger Canyon Study Area Rezoning had also been reviewed as part of the Draft EIR. The 423-acre property northeast of Saint Mary's College (SMC) had been designated as a Study Area when the General Plan had been adopted in 1979 and the Study designation remained in place today. A neighborhood meeting had been held on January 25, 2022 and a Town Council study session had been held on February 9, 2022, to discuss options. Staff was now developing the General Plan and zoning text based on the Town Council's direction. No development proposals had been proposed at this time for the Bollinger Canyon Study Area.
Mr. Miller introduced Darcy Kremin, Director of Environmental Planning, Rincon Consultants, the lead for the EIR. She continued the PowerPoint presentation and provided an overview of the California Environmental Quality Act (CEQA) requirements for the environmental review process and the timeline for the 45-day public review of the Program-Level Draft EIR. The Draft EIR had been published on October 27, 2022, and with Responses to Comments to be prepared as part of the Final EIR would include a Mitigation and Monitoring Reporting Program (MMP). The Final EIR would be published in early January 2023, and the Planning Commission would make a recommendation to the Town Council on the Final EIR for the Comprehensive Advanced Planning Initiative and certification of the EIR.
The Draft EIR had analyzed 20 environmental resource impacts and other CEQA topics with no impacts or less than significant impacts related to aesthetics, cultural resources, energy, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, population and housing, public services and recreation and tribal cultural resources. Significant and unavoidable impacts had been identified for air quality, biological resources (Bollinger Canyon only), Greenhouse Gas Emissions (GHGs), noise, transportation, utilities and service systems (Bollinger Canyon only) and wildfire, and a Statement of Overriding Consideration would be required to be adopted.
The Draft EIR included seventeen proposed mitigation measures and proposed implementation programs for cultural, tribal culture and paleontological resources to be adopted as part of the General Plan Update. Not every mitigation measure would apply to every project. The mitigation measures had been listed in the Executive Summary of the Draft EIR with full descriptions in the Town Council Special Meeting 10 November 16, 2022
individual resource sections, which were all highlighted at this time along with the proposed implementation programs.
CEQA required alternatives. Alternative 1 was the No Project Alternative; existing zoning and General Plan designations with no development in the Bollinger Canyon Area, mitigation measures would not be applicable and may be proposed on a project-by-project basis as necessary and feasible. Alternative 2 related to Employment-Focused Growth; nine of the housing opportunity sites would be developed or remain as Office/Retail uses. This alternative would achieve the Town's RHNA and create jobs and services in the vicinity of the housing and this alternative would accomplish all project objectives. Alternative 3 for Clustered Bollinger Canyon Development was where buildout would be the same except development in Bollinger Canyon would be clustered, minimize ground disturbance and maximize contiguous open space, and this alternative would accomplish all project objectives. The purpose of the alternatives was to meet most of the project objectives and reduce or avoid the significant environmental impacts of the project.
Ms. Kremin walked through Table 6-1: Impact Comparison of Alternatives as shown in Chapter 6 of the Draft EIR and detailed the numerous options for public comments to be provided on the Draft EIR, with the public comment period to close on December 12, 2022 at 5:00 p.m., and with the entire Draft EIR and associated appendices posted on the makemoragahome.org link of the Town website. The Final EIR would be published the first week of January 2023 to meet all timelines, and with review and response to all comments to be done after December 12, 2022.
In response to questions from the Town Council, Mr. Miller, Ms. Kremin and Ms. Murphy clarified:
• Only three project alternatives had been considered as described. Alternative 3, Clustered Bollinger Canyon Development was again clarified. When reviewing the alternatives, only the environmental impacts had been reviewed not the feasibility of the alternatives but finding ways to minimize, reduce or avoid environmental effects. In terms of Alternative 3, it would be simpler to come off of an existing paved right-of-way (ROW) and build from there. (McCluer)
• The maximum build out that could occur included a spreadsheet from Barry Miller Consulting of all the housing element sites with the environmental analysis having looked at the map to determine what it would look like if every site was built to the maximum feasible capacity, to determine how many people and vehicles that would involve, and to identify the worst case scenario if everything in the Housing Element had been built in the next eight years on the sites identified and in the densities proposed. The EIR was usetul in terms of high level impacts such as Greenhouse Gas Emissions (GHS) and air quality, which was important to view on a cumulative level. Other impacts such as geology, as an example, would be unique to a site. (Onoda)
• CEQA streamlining tools were identified and would be recommended. As an example, if a project was wholly consistent with the Comprehensive Advanced Planning Initiative, it would be covered in the EIR with project specific analyses identified or a subsequent CEQA document may be required but could be a Focused-EIR on one issue as opposed to a full EIR. (Makker)
• From a Housing Element compliance perspective, an EIR was required by State law, but the State would not look at the EIR. The State wanted to know that the Town followed CEQA for the development of an EIR. It was not unusual for a Program-Level EIR to have significant unavoidable impacts. A Program-Level EIR was a very conservative approach with Vehicle Miles Traveled (VMTs) a Countywide/region-wide metric. Contra Costa Transportation Authority (CCTA) numbers related to VTs had been used in the EIR.
Town Council Special Meeting 11 November 16, 2022
There were not enough data points yet since VTs were a new metric and the data was not available to show that the mitigation measures would be effective enough to reduce VMTs below the 15 percent threshold. The Traffic Consultant, Fehr & Peers, had explained what could be implemented to help reduce VTs but even with their research they were only able to get it 11 percent below regional average and could not get it to 15 percent. CEQA required that the mitigation measures were effective to the point it would reduce the impacts to a less than significant level, and while their effectiveness could be shown, they were not quite effective enough.
As to whether that would kill the program, it was noted that CEQA was an informational document for the Town and the public to identify all of the project impacts, and prior to making a decision all the information was there. A Statement of Overriding Considerations would be required to be adopted and staff confirmed that while there were some environmental impacts from the project there were also benefits of the project, which was why the Housing Element Update should be adopted. (Mayor Woehleke) • A Project-Level EIR for a past application for development in Bollinger Canyon had not been used for this effort and that EIR could not be used because it had not been certified; however, that EIR had been reviewed for some information. (Onoda) • There were mitigation measures in the EIR for significant and unavoidable impacts related to wildfire. As projects were submitted, staff would look at the Certified EIR as the basis, but as new information was provided or new laws imposed, the Project-Level analysis would be updated to reflect that new information or new law. While being in a High Fire Hazard Severity Zone was important, as an example, what could be done to manage those projects on evacuation routes and reduce the impacts of the project in the area would have to be analyzed. There were good mitigation measures including guidance from the Attorney General's Office on how to mitigate wildfire impacts. (Onoda)
PUBLIC COMMENTS OPENED
There were no comments from the public.
PUBLIC COMMENTS CLOSED
Mayor Woehleke recognized they were still within the 45-day public review period on the EIR.
He looked forward to seeing and receiving comments and asked staff what kind of comments were expected.
Ms. Kremin explained that this was her third EIR for communities and the public had been fairly quiet, other than comments provided by the Department of Fish and Wildlife. Comments were anticipated from the MOFD and there had been no comments from adjacent cities. She clarified that if the EIR was not certified, the Town could not adopt its Comprehensive Advanced Planning Initiative because CEQA required an EIR to be complete prior to taking action to adopt the Comprehensive Advanced Planning Initiative.
Review HCD's Comments on Draft Housing Element
Review and Discuss State Department of Housing and Community Development's Comments on the Draft Housing Element
(CEQA Status: Exempt, not a project as defined in CEQA Guidelines Section 15378)
Mr. Miller reported the Housing Element had been submitted to HCD on August 12, 2022 and included a 90-day review period. HCD had taken the full 90-days for review and had submitted Town Council Special Meeting 12 November 16, 2022
comments to the Town of Moraga on November 10, 2022. The comments in the HCD Comment Letter were not unexpected and were similar to letters received by neighboring communities such as the cities of Lafayette, Orinda and the Town of Danville. Staff would be working on revisions to the Draft Housing Element in response to the comments and would return to the Town Council with a staff report to review the HCD Comment Letter line-by-line, excerpting the comments from HCD, and identifying the Town's response on how the Housing Element would be changed, justification for the Town's position or how the Town would be responsive in editing the document.
Town staff including the Planning Director, Mr. Miller and Stephanie Hagar from BAE Urban Economics, had already identified 41 comments in the HCD Comment Letter. Responses were being prepared for each comment via a track change version of the Draft Housing Element to show anything to be added in redline text, with a clean copy and with all track changes to be prepared to show the Planning Commission, Town Council and the public the changes that had been made.
Mr. Miller emphasized the importance that he and the Planning Director have some face time with the HCD Reviewer on the HCD Comment Letter. He provided a summary of the 12-page HCD Comment Letter dated November 10, 2022, in particular the changes HCD determined were necessary to bring the Town's Housing Element into compliance with Article 10.6 of the Government Code and recommended some preliminary comments in response to some of the HCD comments. He suggested that 90 percent of the HCD comments could be resolved, and that 10 percent would take some tough back and forth with HCD and require some thoughtful responses. Staff would return to the Town Council with responses to the HCD Comment Letter at its December 7 meeting.
Mr. Miller again emphasized the importance of having face time contact with the HCD Reviewer, although there could be challenges given the number of Southern California cities that were out of compliance after their Housing Elements had been due given that Southern California Housing Elements had been due around 15-months prior to Northern California cities. Staff hoped to have a thumbs up from HCD on the Housing Element prior to Town Council adoption scheduled for January 25, 2023. If the Town adopted the Housing Element and did not respond to all HCD comments there would be a much shorter letter to indicate that all the remaining things to ensure compliance would not occur until after the January 31, 2023 deadline.
Ms. Battenberg explained that there was a lot of work involved, staff was doing its best to provide pieces of these large documents along the way, and she thanked the Town Council for being patient in how it had been receiving information. More information would be provided on December 7 and in January 2023.
In response to Councilmember Makker, Mr. Miller confirmed the comments in the HCD Comment Letter were not suggestions or advisory but were mandatory and the Town must respond.
In response to Councilmember Onoda, Mr. Miller explained with respect to the HCD comments related to the Town's Hillside and Ridgeline Ordinance, that HCD had not provided any direction on what the Town needed to do, but asked for that to be evaluated as a potential constraint. He suggested the Town could make the argument that was not a constraint to the type of housing being planned and would not affect sites identified in the Moraga and Rheem Center Areas.
Mr. Miller understood the Council's frustration to the HCD comments related to the Town's Hillside and Ridgeline Ordinance, and comments on the site survey and ensuring affordable housing would be spread out throughout the Town, and ensuring services were available to Low Income households in need, and whether HCD had any knowledge of Moraga or whether any latitude could be provided to the Town. He stated that other communities had raised identical comments verbatim.
Town Council Special Meeting 13 November 16, 2022
Mr. Miller suggested some of the comments in the HCD Comment Letter reflected correspondence that HCD had received from others who had commented on the Town of Moraga's Housing Element from a number of organizations and individuals. He suggested the Town had some leeway in explaining why certain approaches didn't make sense, such as placing Low Income units in areas subject to the Hillside and Ridgeline Ordinance.
Councilmember McCluer asked what areas of the HCD Comment Letter would be challenging to address, to which Mr. Miller suggested the metrics for the programs and making them sensible would be a challenge and the numbers that reflected the Town's resources were realistic and reflected the market and other factors. The detailed breakdown would also be a challenge as would some related to the AFFH requirements.
Councilmember Onoda asked whether the two shopping centers, which had been identified for housing were good enough for the Town, and Mr. Miller suggested by identifying the two geographically separate shopping centers, the Town could make the case they were the two logical locations for housing, would meet AFFH, and anything built in Moraga would be AFFH since the entire Town was considered a High Resource Area pursuant to state law.
Councilmember McCluer asked how much weight HCD had given the Town's General Plan given some of the established constraints, and Mr. Miller clarified there was no commitment to changing the scenic corridors in the Housing Element, but it would be looked at in the future as to how to achieve the Town's housing goals within the parameters that had been set up, and as long as the Town could show it could meet its RHNA on the land and sites that were available in a compelling way through the density bonus, allowable number of units, and housing in places where not allowed by current zoning, the Town was taking proactive steps that had not been taken in the past. He was confident it would not hold the Town up in any way.
Mayor Woehleke had the impression from the HCD comments, particularly the comments related to the sites survey, that HCD was asking for things that may result in more opportunities and changes across the Town, not taking into account that most of the Town had been built out other than the two downtown areas. He asked whether that could be addressed with HCD.
Mr. Miller commented HCD was not looking for the Town to rezone areas outside of the two shopping centers to high density housing and had not asked for that and those comments could be addressed through ADUs and by abiding by SB 9 and creating opportunities in single-family neighborhoods that were in keeping with the character of the community. He noted that many other communities were dealing with the same challenges with HCD.
Councilmember Onoda asked how disabilities would be addressed, to which Mr. Miller acknowledged they had not contacted a local stakeholder advocacy disability group in the first round of outreach but that could be done between now and the time the Housing Element was adopted and summarize any challenges in the document.
Councilmember Onoda suggested there was a member of the community who was very active on Town Boards and in the community and who should be contacted.
Mr. Miller pointed out that HCD had not commented on the Town's engagement thus far and he commended the Town and the Planning Director for driving that program.
Councilmember McCluer understood pursuant to the HCD Comment Letter that the State did not like the use of the word "consider" but he was reluctant to make that change and emphasized the amount of discussion about using that term.
Town Council Special Meeting 14 November 16, 2022
Mr. Miller stated one area where that change may be necessary was bringing in a third party for fair housing outreach and enforcement, and the Town would have funding if that fractional fee requirement was approved.
Councilmember Makker left the meeting at 8:57 p.m.
Mayor Woehleke asked whether the Southern California cities that had not yet had their Housing Elements approved were subject to the "builders remedy." Ms. Murphy was unaware of the specific situations related to the communities in Southern California that had yet to have their Housing Elements certified, but any city could be subject to the builders remedy based on correspondence from HCD if they had not met the initial compliance deadline.
Councilmember McCluer asked whether the Town had a right to see the letters of complaint HCD referenced in its comment letter, and Mr. Miller suggested the Town should be able to see all letters, which should be public record. The only letter he had seen was from East Bay for Everyone, but other letters had been received.
Mayor Woehleke stated he had received copies of a letter from YIMBY (Yes in My Back Yard).
Councilmember McCluer asked for copies of the letters referenced.
Mayor Woehleke asked whether the Town planned to build an emergency shelter in response to one of the comments from HCD, to which Mr. Miller explained that emergency shelters related to State law that had changed and only required parking for staff at emergency shelters and a city could not base the number of required parking on the number of beds in an emergency shelter.
Every city in the State regardless of size must allow emergency shelters in at least one zoning district. While Moraga was in compliance, there was a parking requirement in the MMC based on the number of beds and that must be changed, with the parking requirement to be based on the number of staff.
Ms. Battenberg clarified the Town had one Zoning District that allowed emergency shelters to be constructed, and Mr. Miller clarified the one Zoning District that permitted emergency shelters was Saint Mary's College (SMC).
Mayor Woehleke asked whether each of the HCD comments, which included the phrase the Town must analyze, would be an impediment to address the comments, and Mr. Miller acknowledged it would be a heavy lift to respond to the comments in the limited time frame of the Town's schedule.
PUBLIC COMMENTS OPENED
There were no comments from the public.
PUBLIC COMMENTS CLOSED
Councilmember McCluer thanked staff and the consultant for all of the work but as the document was rewritten, he asked that residents be kept in mind.
Councilmember Onoda also thanked staff and the consultants. She too asked that the process remember the residents. She was confident the Rheem Center would be built, and she was looking forward to that and what the other side of the Town would come up with. She suggested this was a good opportunity for the Town as long as it was done right, and residents must be happy with whatever was done.
Town Council Special Meeting 15 November 16, 2022
Mayor Woehleke thanked Mr. Miller for representing the Town of Moraga as he also represented other cities and citizens. They all had a desire to address the housing crisis, but he was unsure that what was being imposed on the Town was the answer.
8. COUNCIL REQUESTS FOR FUTURE AGENDA ITEMS
There were no Council requested for future agenda items.
9. ADJOURNMENT
ACTION: It was M/S (Onoda/McCluer) to adjourn the meeting at 9:06 p.m. In Honor of Town Clerk Marty Mc/nturf. Vote: 3-0-2. Absent: Makker, Sos.
Respectfully submitted by:
Mash Has
Yashin Abbas, Interim Town Clerk
Approved by the Town Council:
Kens
Renata M. Sos, Mayor
Town Council Special Meeting 16 November 16, 2022